17 October 2013

Clarifying the content of climate change mitigation obligations

Broken and drifting sea ice melting in the heat of the Arctic summer, Greenland. © Greenpeace

On 27 September 2013, Dutch NGO Urgenda announced it will institute legal proceedings against the Dutch state in order to address its allegedly failing climate change policy. This announcement was made on the same day that Working Group I of the International Panel on Climate Change (IPCC) published its fifth report on climate change, concluding amongst others that scientists are 95 per cent certain that humans are the ‘dominant cause’ of global warming since the 1950s. Urgenda has published the draft court summons on its website (Dutch only), which may still be subject to revision. The final court summons will be presented to the Dutch state on 23 October 2013. Claimants will ask the Court:

  1. To declare that the Netherlands would be acting wrongfully by not ensuring that Dutch greenhouse gas emissions are reduced by 25-40 per cent in 2020 compared to 1990 levels;
  2. To order the Netherlands to ensure that Dutch greenhouse gas emissions are reduced by 25-4 per cent in 2020 compared to 1990 levels;
  3. To order the Netherlands to inform its population about the risks of climate change.

Claimants do not argue that a wrongful act has already occurred as a result of the Dutch climate change policy, and do not (yet) claim compensation for harm arising from global climate change. Rather, they focus on the impending wrongful act under both Dutch law and international law that they believe is bound to ensue if the Netherlands does not alter its climate change policy in the near future. By taking a closer look at the arguments made by claimants, it will be illustrated that these legal proceedings may be seen as a call for the clarification of the content of climate change mitigation obligations, as well as a call for the fulfilment of said obligations.

Climate change mitigation is the archetype of a collective (in)action problem, requiring an aggregate effort of multiple actors. But as is the case with any collective action problem, it is the individual failure of individual actors that in the end facilitates a collective failure. Interestingly, in this case claimants focus specifically on the individual role of the Netherlands and the individual obligations incumbent upon it. By doing so they aim to preclude the Netherlands from hiding behind a potential collective failure.[1]

The existence of an (individual) obligation to contribute to preventing dangerous climate change

The main argument put forward by the claimants seems to be that the Netherlands is under an obligation to contribute to preventing dangerous climate change; the focus is placed on dangerous climate change only and not on the occurrence of climate change as such. Because states have generally endorsed the scientific view that the increase in average global temperature should not exceed 2°C in 2050 in order to prevent dangerous anthropogenic interference with the climate system (e.g. in the Copenhagen Accord and the Cancun Agreements), claimants define dangerous climate change as an increase in global temperature that exceeds 2°C.

Claimants argue that the Dutch contribution to dangerous climate change will constitute a wrongful act/tort under Dutch law as soon as such dangerous climate change materializes. They note that Dutch case-law has recognized that the emission of gases and substances can constitute a wrongful act/tort when adverse consequences arise for others as a result thereof. Claimants compare the Dutch contribution to global greenhouse gas emissions to the contribution of the French company Mines de Potasse d’Alsace (MDPA) to the overall salinity level of the river Rhine, which was the subject of the ‘Kalimijnen’ case before the Dutch Supreme Court (NJ 1989, 743). In this case, the Supreme Court considered that the MDPA was acting wrongfully towards Dutch cultivators that utilized the Rhine for the watering of their crops, despite the fact that the overall salinity level of the Rhine did not result solely from the company’s dumping of salts into the river but had additional (both natural and industrial) causes.[2] The question whether damage would have occurred also in the absence of dumping by the MDPA was deemed to be irrelevant, and the amount of compensation that it was ordered to pay was proportionate to its share in the total salinity of the river. By applying these considerations to the current case, claimants argue that the Netherlands will eventually be proportionately responsible for the harm arising from dangerous climate change and that it is therefore obliged to preventatively reduce its share in overall global emissions.

While claimants rely primarily on Dutch law, they refer to international law in order to further substantiate their claims. They refer to article 2 of the UN Framework Convention on Climate Change (UNFCC), which states that the ultimate objective of the UNFCC is to achieve ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ and, in addition, argue that it follows from the no-harm rule in international law that states are obliged to take the necessary measures to prevent that emissions from their territory cause serious harm outside its territory (or in other words, contribute to dangerous climate change).[3]

Finally, claimants discuss the adverse effects of dangerous climate change on the enjoyment of human rights such as the right to life and the right to health, and argue that the Netherlands has the positive obligation to take the necessary measures to prevent violations of human rights law, by not contributing to dangerous climate change.[4]

In essence, all of these points come down to the argument that it follows from various obligations to prevent harm under both Dutch law and international law that the Netherlands is obliged to contribute to the prevention of serious harm arising from dangerous climate change.

The content of the individual obligation to contribute to preventing dangerous climate change

Generally, obligations to prevent harm from arising are considered to be obligations of conduct (or ‘due diligence obligations’) in the sense that it is not necessarily required for the fulfilment of such an obligation that the harm is in fact averted. Rather, it is required that all necessary measures within the duty-bearer’s power are taken to prevent that harm from occurring. Surely the Netherlands is not in the position to ensure that dangerous climate change will not occur by its individual conduct only. But then what is it that the Netherlands must do exactly in order to fulfil its individual obligation? Are current Dutch efforts at greenhouse gas emission reduction sufficient, or is the Netherlands legally obliged to do more? In other words, what should the Dutch share be in the reduction of global emissions?

The Netherlands has committed itself to reduce its emissions with 16 per cent by 2020 compared to levels in 1990. This target is derived from the European Union’s pledge to reduce its overall emissions with 20 per cent by 2020. However, according to the IPCC a reduction of 25-40 per cent by 2020 would be required of all developed states (classified as such by Annex I to the UNFCC) in order to have a 50 per cent chance at limiting global temperature rise to 2°C in 2050, and thus to have a real chance at preventing dangerous climate change. These calculations take into account the principle of common but differentiated responsibilities (CBDR), placing a heavier burden upon the shoulders of developed states. The claimants subscribe to the IPCC’s findings and use them to argue that the obligation to contribute to preventing dangerous climate change in both Dutch law and international law effectively entails that the Netherlands, as a developed state, is bound to ensure that its emissions are reduced with 25-40 per cent by 2020.[5] Whereas obligations to prevent harm are generally considered to be obligations of conduct, this specific obligation might better be qualified as an obligation of result. Even though the prevention of climate change as such is not required for the fulfilment of this obligation, it does require the achievement of a very clear result: an emission reduction of 25-40 per cent by 2020.

It is generally accepted that there exists an obligation to prevent serious environmental (transboundary) harm in international law and that climate change can indeed cause such harm. As collective action is required in order to have a real chance at preventing dangerous climate change, it seems that individual states can do no more than contribute to this prevention. Even if we accept that these individual obligations constitute obligations of result the key question remains: which state is bound to achieve what (individual) result? While some indeed argue that an answer to this question must be informed by the CBDR principle, others have expressed doubts as to the extent in which this principle should guide the distribution of climate change mitigation obligations (the latter doubts may be supported by a recent report published in Climate Change, which reveals that developed states may not bear the overwhelming responsibility for climate change). In this regard, one might agree with the claimants at the very least on the point that uncertainties with regard to the content of individual obligations may eventually allow states to hide behind a collective failure.

It is for this reason that the question key to Palau’s campaign to secure an advisory opinion from the International Court of Justice (ICJ) on climate change focuses on clarifying the content of individual climate change mitigation obligations:

What are the obligations under international law of a State for ensuring that activities under its jurisdiction or control that emit greenhouse gases do not cause, or substantially contribute to, serious damage to another State or States?

In the face of the imminent risks posed by climate change, an answer to this question by the ICJ would be a more than welcome step. Unfortunately, two years after Palau announced its plans to seek an advisory opinion, the issue has not been put to the vote before the General Assembly and it seems that Palau’s campaign has not (yet) garnered sufficient support amongst states. Interestingly, it now seems that domestic courts might have a role to play in contributing to the clarification of the content of climate change mitigation obligations.

[1] See para. 119 and para. 162 of the draft court summons.

[2] See paras. 165-171.

[3] See paras. 203-214.

[4] See paras. 215-236.

[5] See paras. 130-141.

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