OTTO SPIJKERS

Introduction

My previous post on this blog provided a comment on the role – or lack thereof – of international human rights law in the Urgenda decision of the Dutch District Court of 24 June 2015, in which the District Court in the city of The Hague (Netherlands) concluded that the State of the Netherlands was not doing enough to reduce greenhouse gas emissions to acceptable levels by 2020. I explained in that previous post how the Dutch District Court used the framework of Dutch domestic tort law to urge the State to do more in combating climate change. The role of international human rights law in the application of that framework was modest, at best: it only applied international human rights law indirectly, in assessing what was required under the duty of care.

On 9 October 2018, the Appeals Court published its decision. The Appeals Court came to the same conclusion as the District Court, but this time, the argumentation was based entirely on a direct application of international human rights law.

In this post, I will first remind the reader why the District Court did not rely directly on international human rights law, and then I will explain why the Appeals Court did rely directly on international human rights law.

Role of international human rights law – or lack thereof – in the District Court decision

Before the District Court, Urgenda invoked inter alia Articles 2 and 8 of the European Convention on Human Rights (ECHR). Article 2 says that “no one shall be deprived of his life intentionally”, and Article 8 says that “everyone has the right to respect for his private and family life”. But the District Court did not allow Urgenda to invoke these provisions directly. This was because of Article 34 of the same Convention, which states that:

The [European Court of Human Rights] may receive applications from any person, nongovernmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.

The District Court concluded from this provision that an association can only bring a claim when it is itself the victim of a breach. Urgenda’s own physical integrity or privacy was not breached, and thus Urgenda could not directly invoke Articles 2 and 8 ECHR.

Role of international human rights in the Appeals Court decision

Generally, Urgenda was “extremely pleased and grateful for the judgement of the [District] Court” (Reply to the Notice of Appeal (in Dutch only), section 11.2). The refusal of the District Court to give direct effect to Articles 2 and 8 ECHR was the only part in the District Court’s judgement with which Urgenda disagreed (Ibid., sections 11.1-11.13). Urgenda mainly objected to the way the District Court derived conclusions from 34 ECHR. In view of Urgenda, Article 34 ECHR restricts the group of (legal) persons whose applications the European Court may receive to persons, NGOs and groups of persons who are themselves victims of a breach of a provision in the ECHR. What the District Court misunderstood was that Article 34 limits access to the European Court only; it does not establish restrictions on the access to the Dutch courts (Ibid., section 11.6).

The Appeals Court agreed entirely with Urgenda on this issue. It allowed Urgenda to invoke Articles 2 and 8 ECHR directly. The reasoning of the Appeals Court is worth quoting in full:

Like the State, the district court derived from Article 34 ECHR that Urgenda cannot directly invoke Articles 2 and 8 ECHR. In doing so, the district court fails to acknowledge that Article 34 ECHR (only) concerns access to the European Court of Human Rights (ECtHR). As is evident from this article, citizens, NGOs and groups of individuals have access to the European Court of Human Rights in Strasbourg – insofar as they claim violation of their rights enshrined in the ECHR. The ECtHR has explained this article as follows (in brief), namely that “public interest actions” are not permitted and that only the claimant whose interest has been affected has access to the ECtHR. The ECtHR has not given a definite answer about access to the Dutch courts. This is not possible, as this falls within the scope of the Dutch judges. This means that Article 34 ECHR cannot serve as a basis for denying Urgenda the possibility to rely on Articles 2 and 8 ECHR in these proceedings (Urgenda appeals court judgment, para. 35).

And thus, Urgenda’s right to directly invoke the provisions in the ECHR was dependent on Dutch law, not the procedural provisions in the ECHR. In Dutch law, NGOs do have such right. The Appeals Court explained that “just like individuals, who fall under the State’s jurisdiction, may invoke Articles 2 and 8 ECHR in court, which have direct effect, Urgenda may also do so on their behalf under Book 3 Section 305a of the Dutch Civil Code” (Ibid., para. 36). This article of the Dutch Civil Code regards the possibility for NGOs to file class actions under Dutch civil law, and states that “an association with full legal capacity may institute legal proceedings aimed at the protection of interests similar to those of other persons, insofar as the association represents these interests in accordance with its articles of association” (the translation is my own).

Articles 2 and 8 ECHR do not explicitly protect individuals from environmental degradation. That requires some interpretation. The Appeals Court does so as follows:

The interest protected by Article 2 ECHR is the right to life, which includes environment-related situations that affect or threaten to affect the right to life. Article 8 ECHR protects the right to private life, family life, home and correspondence. Article 8 ECHR may also apply in environment-related situations. The latter is relevant if (1) an act or omission has an adverse effect on the home and/or private life of a citizen and (2) if that adverse effect has reached a certain minimum level of severity (Ibid, para. 40).

With respect to Article 8 ECHR in particular, the Appeals Court orders that “if the government knows that there is a real and imminent threat, the State must take precautionary measures to prevent infringement as far as possible” (Ibid., para. 43). In other words, there is also an obligation to prevent future infringements of this right. After assessing the relevant facts, the Appeals Court comes to the conclusion that “it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life”; and thus, “it follows from Articles 2 and 8 ECHR that the State has a duty to protect [everyone within its jurisdiction] against this real threat” (Ibid., para. 45).

Interesting is also how the Appeals Court dealt with the argument of the State of the Netherlands that Urgenda had no right to claim to represent future generations. The Appeals Court argued that “it is without a doubt plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced”, and thus Urgenda is (also) acting on behalf of the present generation, and it is beyond doubt that it can do so under Dutch domestic law (Ibid., para. 37). This is very refreshing: one rarely finds a more direct affirmation, by a court, that climate change is not just a future problem, but a present-day problem as well.

Conclusion

Contrary to the District Court, who only relied on international (human rights) law indirectly, the Appeals Court bases its entire reasoning on the direct application of Articles 2 and 8 ECHR, which makes the appeals judgment much simpler and straightforward, and considerably shorter. After only 20 pages ‒ compared with the 60-page District Court judgment ‒ the Appeals Court comes to the conclusion that “the State fails to fulfil its duty of care pursuant to Articles 2 and 8 ECHR by not wanting to reduce emissions by at least 25% by end-2020” (Ibid., para. 73, repeated in para. 76).

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Meet the author

Otto Spijkers is Lecturer of Public International Law at Utrecht University, and researcher at the Utrecht Centre for Water, Oceans and Sustainability Law. He is a member of the Committee on the Role of International Law in Sustainable Natural Resource Management for Development of the International Law Association, and was a visiting lecturer inter aliaat Xiamen University’s China International Water Law Programme (China), and the China Institute for Boundary and Ocean Studies of Wuhan University (China).