My colleague Nico Schrijver, Professor of International Law at Leiden University, will be attending the United Nations Conference on climate change, in Paris, which starts on 30 November 2015. I imagine him patiently promoting the development of new norms that will meet the needs of the present without compromising the ability of future generations to meet their needs. It is a matter of the best of all worlds, he told us at the Leiden Law School Mordenate College Conference on Sustainable Development on 27 November 2015, referring to the common core of international environmental law, international development law and human rights.
Nico may need a helping hand. I would like to offer him one, from the perspective of private law.
While the international political arena is still exploring the possibilities of a treaty or agreement with substantive obligations to reduce greenhouse gas emissions, an international group of legal scholars and practitioners has already issued the Oslo Principles on Global Climate Change Obligations, seeking to develop a comprehensive analysis of existing legal authority sufficient to enable judicial intervention, on the basis of the private law duty of care.
Only a few months later, at the request of a group of citizens, called Urgenda, the District Court of The Hague ordered the Netherlands to limit the joint volume of Dutch annual emissions, so that this volume will have been reduced by at least 25% by the end of 2020 compared to the level of the year 1990. The court found that the State was under a duty of care, reflecting the State’s constitutional and international law obligations and agreements with regard to the environment and climate change. The Oslo Principles may serve as a source of support for this remarkable decision.
Contract law comes into play here as well. Notwithstanding Dutch politicians who claim that unilateral steps to reduce CO2 emissions without a worldwide basis will harm enterprises, enterprises themselves are presenting guidelines for both their own decision-making process and for their contract partners. Some commit themselves explicitly to the mitigation of greenhouse gas emissions and require their business partners to do the same, turning their own voluntary code or charter into a contractually binding instrument. It may not be very long before such commitments will be considered common usage, particularly for codes of conduct that are in line with policies of governments, international or regional organisations, or supported by declarations of private institutions like branch organisations in the field of finance, energy, transportation, construction or agriculture. The increasing use of codes and contractual clauses may be considered as a sign of support for obligations to reduce greenhouse gas emissions.
So, go for it, Nico, with a little help from private law.