Making Legal History: State Liability for Negligence in Climate Change

In a recent judgment of 9 October 2018, the Gerechtshof Den Haag (the Hague Court of Appeals) ruled that the Dutch government was liable in tort for negligence by failing to comply with the duty of care to take adequate mitigation measures against climate change.1 Climate change litigation is a designation for legal proceedings connected to climate change matters.2 The decision also has a wider bearing on public international law and constitutional and administrative law. This comment discusses the legal issues raised in the ruling. While the decision was rendered in the Dutch legal system, it is of interest to other legal systems as well, and essential components will be discussed from a comparative viewpoint. In other words, the legal problems raised in this case are laid out and examined through the lens of public international law and tort law. In the following, we will give a brief account of the Court of Appeal’s judgment (I). The Court found that negligence in climate matters can amount to a violation of human rights, in particular those guaranteed under Articles 2 and 8 of the European Convention of Human Rights (II). The claim of the plaintiff, the Urgenda Foundation (hereinafter: Urgenda), was limited to an order for the State to ensure greater emissions reductions by 2020, and a declaration that failure to do so would be wrongful. The plaintiff did not seek an award of damages stemming from tort liability. Nevertheless, it is highly relevant to address this case in the light of tort law. The parties and the courts reason within a framework of tort law, arguing in terms of ‘causal link’, ‘standard of care’ and ‘liability’; these are all constituent elements of liability in tort. While it is certainly established in the various European, national jurisdictions that States can indeed be liable in tort for negligence,3 this decision is the first of kind in applying principles of state liability to climate change (III).