Policy brief: “Duty of care”

A government’s inaction against climate change is, as a matter of fact, a criminal offence.


Publication date

April 15, 2019

Last week I found out that most court cases run by citizens against their governments in the world are based on this common law term [1].

States have the duty to take care of us, and of their future citizens. And a government’s inaction against climate change is, as a matter of fact, a criminal offence, as the International Court of Justice in The Hague just reminded through the highly-publicised URGENDA case [2].

This case is the symbol of a wide movement of court cases on “irresponsibility” to push political leaders to be more ambitious and accelerate the transition. According to Stefan Aykut, a professor at the University of Hamburg, in the aftermath of the diplomatic failure of the COP in Copenhagen, activists resorted to new modes of operation, including an increasing recourse to legal interventions in the fight against climate change since then. For Professor Delphine Misonne (Saint-Louis University, Brussels), it is also due to a citizens’ lack of trust in the current political systems and the media, leading those to turn to the only legitimate institution left: Justice. Judges and their neutrality are perceived as a bulwark against States’ failure to fulfil their “duty of care”.

The URGENDA case, brought by 886 complainants in 2015 to hold the Dutch government to account, was victorious at the Supreme Court of the Netherlands, the decision was appealed by the government and the original judgment was upheld at the end of 2018. While the Dutch government chose to contest the decision, they also took immediate actions to fulfil their obligations: they almost unanimously adopted an agreement aiming at decarbonising the economy by 2050. This agreement is still being negotiated by sectors and regions. Each governance level and each sector of activity has to develop their own roadmap towards carbon neutrality, roadmaps that will then be discussed at local level and with industries. A verdict that has changed the political agenda.

This is a bet also made by Klimaatzaak [3], one of the world’s 252 complaints filed by citizens [4] against institutions or companies that are putting future generations at risk! Klimaatzaak is composed of 54,414 complainants in Belgium asking the Governments to take their responsibility and ensure a viable future. More specifically, by adopting a law to define a common vision and clearly sharing responsibilities between regions and the federal level to put the Paris Agreement into practice. The sole decision on the language in which this case would be dealt with took three years (let’s accelerate the transition?) [5], but the case is now being heard. Boosted by the youth protests for climate and the upcoming elections, Belgian political leaders squabbled petulantly on a proposal, endorsed by the most prominent lawyers in Belgium, for a minor change in Article 7 of the Kingdom’s Constitution that would allow for adopting such a law. We will therefore have to wait for the next Parliaments and Governments to make it a reality.

A legal framework sets the direction, specific targets and means to reach them, but it is not a guarantee of success. In France, we have a nice law setting targets that will most likely not be reached but will be downgraded instead. Nonetheless, a law guarantees transparency and accountability. It also provides a framework for cities and towns to remind their national governments that these obligations are to be translated into practical actions, anchored at local level, and that to do so, local governments need adequate competencies and means.

Mayors could also file complaints against the States and European institutions for “non-compliance” of actual EU policies with claimed ambitions… For the mayors I meet, the “duty of care” is one of the reasons why they are committed at local level, this is far from an ethereal notion. It’s real. And to succeed in this mission mayors need competencies to be adequately shared!

PS : In March, the French version of the Dutch and Belgian complaints was launched: « L’Affaire du siècle » (Case of the Century). The first page of which does not lack ambition, but maybe humility (very French): “How we will save the world!”.

[1] Conference of Brussels’ Open University: http://cedd-pes.com/nos-activites-2019/contourner-le-politique/
[2] https://www.urgenda.nl/en/themas/climate-case/climate-case-explained/
[3] https://affaire-climat.be/
[4] http://climatecasechart.com/non-us-case-category/suits-against-governments/?cn-reloaded=1
[5] https://www.ourchildrenstrust.org/belgium