Integrating the ‘duty of care’ under the European Convention on Human Rights and the science and law of climate change: the decision of The Hague Court of Appeal in the Urgenda case

Abstract

Does international law afford individual rights to enforce climate action of states and if so, is there a legally binding standard of climate protection that domestic courts can apply? The Gerechtshof Den Haag (The Hague Court of Appeal) in the Urgenda decision of October 2018 has answered these questions in the positive. The Hague Court of Appeal thereby acknowledged the existence of a ‘duty of care’ in Dutch law based on the European Convention on Human Rights. A closer analysis of the judgment reveals that the concrete content of this duty of care is derived not from human rights, but from scientifically proven and internationally endorsed greenhouse gas emission reduction targets which are imperative to achieve the temperature goal of the Paris Agreement. This article analyses the judgment and examines whether it is consistent with the existing environmental case law of the European Court of Human Rights. It demonstrates that the judgment forms part of a tidal wave of judicial enquiry into the accountability of governments for their climate action on the basis of human rights and that it is the virtue of human rights law to be conducive to resolving the accountability issue of governments for their climate action. More evidence is needed to substantiate that a new ‘European Consensus’ emerges that not only comprises agreement on an ambitious global temperature goal but translates this into individual rights to enforce climate protection.