PROCURATOR GENERAL OF THE SUPREME COURT OF THE NETHERLANDS Number 19/00135 Session 13 September 2019 CONCLUSION F.F. Langemeijer and M.H. Wissink In the matter between The State of the Netherlands (Mi

Article 2

ECHR (2.41) -

Article 8ECHR (2.46) - Human rights as a basis for climate commitments?

(2.50) - First main line: preventive legal protection under Articles 2 and 8 ECHR (2.53) - Second main line: general legal protection under Articles 2 and 8 ECHR (2.59) - Third main line: assessment of safety and environmental policy under Articles 2 and 8 ECHR (2.63) - Fourth main line: the ECtHR’s common ground method (2.70) - The common ground method and international environmental law (2.74) - The common ground method and human rights-based climate commitments (2.79) 3. Substantiation of the order under human rights law (grounds for cassation 1-3) - Requirement of specific risks for residents of the Netherlands? (3.2) - Margin of appreciation in respect of the reduction pathway (3.19) - No standing due to lack of similar interests? (3.28) 4. Reduction of greenhouse gas emissions in the Netherlands by at least 25% in 2020 (grounds for cassation 4-8) - Introduction (4.1) - The legal and policy framework (4.5) o UNFCCC o Annex I countries o Conference of the Parties (COP) o Paris Agreement o The European Union o ETS Directive o Effort Sharing Decision o The Netherlands - IPCC reports AR4 and AR5 (4.34) o IPCC's working method o Fourth Assessment Report (AR4) o Fifth Assessment Report (AR5) - The facts; 2ºC target, carbon budget and emission reductions (4.49) o The nature of the establishment of facts o The key facts o The 2ºC target and the carbon budget o The carbon budget and the speed of the reductions - The Court of Appeal's assessment of the facts (4.68) o There is a real threat of a dangerous climate change o In the short term – up to the end of 2020 – more must be done to reduce emissions o Postponement is irresponsible o In particular, it is not possible to wait until 2030 o Emissions must be reduced by at least 25% by 2020 o The State’s counterarguments do not hold - Summary of the State's complaints in grounds for cassation 4-8 (4.81) - The legal nature of the reduction targets for 2020 (4.89) o Binding agreement or standard? o Reflex effect? o Exclusive effect of EU reduction targets? o Request for preliminary ruling? - The meaning of the reduction target of 25%-40% in 2020 from AR4 (4.120) o A target of 10%-40% or of 25%-40%? o A reasoned proposal o The meaning of the target of 25%-40% - Is the 25%-40% reduction target by 2020 from AR4 outdated? (4.142) o Several reduction pathways in AR5 (RCP2.6)? o Has the reduction target referred to in AR4 been otherwise overtaken by AR5? o Is the distinction between Annex I countries and other countries outdated? - Acceleration of the reductions after 2020: the ‘desirability’ of earlier reductions (4.163) - The adjustment of the Dutch reduction target from 30% to 20% (4.172) - Does the reduction target from AR4 also apply to the Netherlands individually? (4.178) - Individual responsibility for Dutch emission reductions (4.187) - The effects of extra Dutch emission reductions (4.199) o No measurable effect on global warming o EU will realise the reduction target of 25% in 2020 o ‘Carbon leakage’ and ‘waterbed effect’ - Complaints regarding application of the ECHR (4.123) o The effectiveness of the order o Other measures o Margin of appreciation o Fair balance and proportionality - The remaining complaints (4.236) o 450 ppm scenario o Precautionary principle o Relativity o The time remaining o 1.5ºC target o Merely elaborative complaints 5. The constitutional lawfulness of the order (ground for cassation 9) - Introduction (5.1) - The District Court’s opinion (5.5) - The Court of Appeal’s opinion (5.9) - The political question doctrine in the United States (5.13) - The trias politica doctrine and the jurisdiction of the civil courts (5.18) - Political questions and the relationship between judiciary and legislature (5.20) - Political questions and the relationship between judiciary and executive (5.29) - The lawfulness of an order to enact legislation (5.33) - Considerations further to this case law (5.42) - The complaints in ground for cassation 9 (9.1-9.3; unlawful order to enact legislation?) (5.51) - The complaints in ground for cassation 9 (9.4-9.6; otherwise in respect of the order) (5.65) 6. Closing considerations - Summary (6.3) - Alternatives (6.12) 7. Conclusion Appendix: List of abbreviations used 1Facts and course of the proceedings 1.1 In its judgment of 9 October 2018, The Hague Court of Appeal (abbreviated hereinafter as the Court of Appeal) affirmed the judgment of The Hague District Court (abbreviated hereinafter as the District Court). Section 2 of the Court of Appeal's judgment is premised on all of the facts established in paras. 2.1-2.78 of the District Court's judgment of 24 June 2015. In addition to this, the Court of Appeal made its own findings of fact in paras. 3.1-3.7 and at 4.26 of its judgment. Those findings of fact were a work in progress up to and including 28 May 2018, the day on which the oral arguments on appeal were concluded. Finally, the Court of Appeal set out the most important elements of the overview of facts, and the conclusions it drew as a result, in para. 44. 1.2 In this first chapter, we will provide only a brief recitation of the established facts as an introduction. We will discuss the relevant facts in more detail when addressing the individual complaints in the grounds for cassation. Where necessary, we have added sources for the facts established by the Court of Appeal. The greenhouse effect (

i)Since the beginning of the industrial revolution, mankind has been using energy on a large scale: energy that is primarily obtained by burning fossil fuels (coal, oil and gas), thus releasing carbon dioxide. This compound of carbon and oxygen is generally referred to by its chemical formula: CO2. Part of the CO2 that is released is emitted into the atmosphere, where it remains for hundreds of years or more and is partly absorbed by the ecosystems in forests and oceans. This absorption capacity is continuously decreasing due to deforestation and the warming of the oceans. (
ii)CO2 is the most significant greenhouse gas and, in tandem with other greenhouse gases, it keeps the heat radiated by our planet in the atmosphere. This is called the ‘greenhouse effect’. The greenhouse effect increases proportionately with the amount of CO2 that winds up in the atmosphere, which in turn warms the planet at an increasing rate. It is important to note that the planet's climate system is slow to respond to the emission of greenhouse gases: the full warming effect of the greenhouse gases being emitted today will not be felt for another 30 to 40 years. In addition to CO2, other greenhouse gases include methane, nitrous oxide and fluorinated gases. (iii) Concentrations of greenhouse gases in the atmosphere are expressed as ‘ppm’, parts per million. The term ‘ppm CO2 equivalent’ is used to express the total concentration of all greenhouse gases, in which respect the concentration of all of the other, non-CO2 greenhouse gases is converted into CO2 equivalents based on their warming effect.. Climate change and the 2ºC target (
iv)There is a direct, linear connection between greenhouse gas emissions caused by mankind, which are partly caused by the burning of fossil fuels, and the warming of the planet. The Court of Appeal noted that the average temperature of the planet is already approximately 1.1ºC higher than it was at the start of the industrial revolution. The current concentration of greenhouse gases in the atmosphere is approximately 401 ppm. In recent decades, worldwide emissions of CO2 have increased by 2% each year. (
v)The rise in the planet's temperature can be prevented or reduced by ensuring that less greenhouse gas is emitted into the atmosphere. This is referred to as ‘mitigation’. Measures can also be taken to anticipate the effects of climate change, such as raising dikes in low-lying areas. The taking of such measures is referred to as ‘adaptation’. (
vi)The climatology field and the global community long ago reached a consensus entailing that the average temperature of the planet may not rise by more than 2ºC in comparison to the average temperature of the pre-industrial era. If the concentration of greenhouse gases in the atmosphere has not risen above 450 ppm by the year 2100, there is a reasonable chance that this objective (hereinafter: ‘the 2ºC target’) will be achieved. In recent years, new insights have shown that the temperature can only safely rise by no more than 1.5ºC, which translates into a greenhouse gas concentration level of no more than 430 ppm in the year 2100. (vii) When viewed in light of the maximum concentration level of 430 or 450 ppm in the year 2100 and the current concentration level (401 ppm), it is clear that the world has very little room left when it comes to the emission of greenhouse gases. The worldwide room that still remains is referred to as the carbon budget. The Court of Appeal held that the chance that the rise in temperature could still be limited to the target of 1.5ºC has become extremely slim. (viii) Warming of more than 2ºC in comparison to the pre-industrial era would cause inter alia: flooding as a result of the rise in sea level; heat stress as a result of more intense and longer-lasting heat waves, increases in respiratory ailments associated with deteriorating air quality, droughts (with devastating forest fires), increased spread of infectious diseases, severe flooding as a result of torrential rainfall, and disruptions of the production of food and the supply of drinking water. Ecosystems, flora and fauna will be eroded and there will be losses in terms of biodiversity. As Urgenda has asserted and the State has not refuted, an inadequate climate policy will result in the second half of this century in hundreds of thousands of victims in Western Europe alone. (
ix)One striking aspect of all of this is that the increase in the concentration of greenhouse gases in the atmosphere could result in the climate change process reaching a tipping point, leading to an abrupt change in climate for which neither mankind nor nature can prepare. According to the AR5 report to be discussed below, risks increase ‘at a steepening rate’ at such tipping points under warming of 1 to 2°C (in comparison to the average temperature in the pre-industrial era). IPCC reports (
x)The Intergovernmental Panel on Climate Change (IPCC) was created in 1988 under the auspices of the United Nations by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP). The IPCC's objective is to obtain insight into all aspects of climate change through scientific research. The IPCC is not just a scientific organisation; it is an intergovernmental organisation as well. It has 195 members, including the Netherlands. Since its inception, the IPCC has published five reports with accompanying working group reports about the state of the art of climatology and climate developments. Particularly relevant to these proceedings are the fourth report from 2007 and the fifth report from 2013-2014. (
xi)The IPCC published its Fourth Assessment Report in 2007 (abbreviated hereinafter as: AR4). According to the District Court, this report stated that a temperature increase of 2°C above the level of the pre-industrial era will entail the risk of a dangerous, irreversible change in the climate. (xii) After an analysis of various reduction scenarios, Chapter 13 of the report from the third Working Group of experts states that in order to be able to achieve a maximum volume of 450 ppm in the year 2100, the emissions of greenhouse gases by the countries listed in Annex I to the UNFCCC (including the Netherlands) must be 25% to 40% lower in the year 2020 than they were in the year 1990. (xiii) The IPCC published its Fifth Assessment Report in 2013-2014 (abbreviated hereinafter as: AR5). This report established inter alia that the planet is warming as a result of the increase in the concentration of CO2 in the atmosphere since the beginning of the industrial revolution, and that this is being caused by human activities, in particular by the burning of fossil fuels and deforestation. In the AR5 report, the IPCC concluded that if the concentration of greenhouse gases in the atmosphere is stabilised at around 450 ppm in the year 2100, the chance that the global temperature increase would remain under 2ºC is ‘likely’, meaning higher than 66%. In this respect, it must be kept in mind that 87% of the scenarios included in AR5 were based on assumptions regarding negative emissions; in other words: the possible removal of CO2 from the atmosphere. United Nations Framework Convention on Climate Change (UNFCCC) and the climate conferences (xiv) The UNFCCC was concluded in 1992. The objective of this framework agreement is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (Article 2 UNFCCC). Article 3 states the principles according to which the parties will allow themselves to be guided in achieving this objective. The parties to the UNFCCC are referred to as Annex I countries (including the Netherlands) and non-Annex I countries. According to Article 4

(2)of the convention, the Annex I countries must take the lead, in an international context, in combating climate change and the adverse effects thereof. They have committed to reducing greenhouse gas emissions. They must periodically report on the measures they have taken with the objective of achieving, either individually or collectively, a return to the emissions level of 1990. (

xv)Article 7 UNFCCC governs the Conference of the Parties (hereinafter: ‘COP’). The COP usually meets annually at climate conferences. The COP is the supreme body of the UNFCCC, it being understood that in general, the COP's decisions are not legally binding. (xvi) During the climate conference in Kyoto in 1997 (COP-3), the Kyoto Protocol was agreed between a number of Annex I countries, including the Netherlands. The reduction targets for the period 2008-2012 were laid down in this protocol. According to Annex B to this protocol, the then-Member States of the EU should apply the premise of a reduction target of 8% in comparison to the reference year 1990. (xvii) The Bali Action Plan was adopted at the climate conference in Bali in 2007 (COP-13). The Bali Action Plan acknowledged the necessity of drastic emissions reductions, citing the aforementioned AR4. That quote regarded inter alia the page in the report of the third Working Group of experts for AR4 which contains the table (‘Box 13.7’) referred to in footnote 14 above, which states that if the Annex I countries wished to achieve the 450 ppm scenario, emissions of greenhouse gases would have to be 25%-40% lower than they were in 1990. (xviii) No agreement could be reached during the climate conference in Copenhagen in 2009 (COP-15) regarding a successor to, or an extension of, the Kyoto Protocol. During the next climate conference in Cancun in 2010 (COP-16), in the Cancun Agreements (Decision 1/CP.16), the parties involved set the long-term target of maximising the rise in temperature at 2ºC in comparison to the average temperature in the pre-industrial era – along with the possibility of a more stringent target of a maximum of 1.5ºC. The preamble refers to the urgency of a major reduction in emissions. (xix) In Cancun, the parties to the Kyoto Protocol stated that the Annex I countries had to continue to take the lead in combating climate change and that, given AR4, this ‘would require Annex I Parties as a group to reduce emissions in a range of 25-40 per cent below 1990 levels by 2020’. The parties to the Kyoto Protocol urged ‘Annex I Parties to raise the level of ambition of the emission reductions to be achieved by them individually or jointly, with a view to reducing their aggregate level of emissions of greenhouse gases in accordance with the range indicated by Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change’. In the ‘Cancun Pledges’, the EU countries as a group declared their willingness to achieve a 20% reduction by 2020 (in proportion to the emissions in the reference year 1990), and offered to achieve a 30% reduction if other countries were to undertake to achieve similar reduction targets. (
xx)During the climate conference in Doha in 2012 (COP-18), all Annex I countries were called upon to increase their reduction targets to at least 25%-40% in 2020. An amendment to the Kyoto Protocol was adopted in which the European Union committed to a reduction of 20% in 2020 in comparison to the emissions in the reference year 1990, and offered to reduce emissions by 30% if other countries were to undertake to achieve similar reduction targets. This condition was not met. The Doha Amendment did not enter into force. The Paris Agreement

(2015)(xxi) In 2015, the Paris Agreement was concluded during the climate conference in Paris (COP-21). According to the Court of Appeal, the system of the Paris Agreement differs from that of the UNFCCC. The parties to the convention are no longer striving to reach global emissions agreements. Each contracting State will be called to account for its own responsibilities. The Paris Agreement stipulates that global warming must be kept ‘well below 2°C’ above pre-industrial levels, pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels (Article 2). The parties must prepare ambitious national climate plans that become progressively more ambitious over time (Article 3). The UNEP reports of 2013 and 2017 (xxii) Since 2010, UNEP has issued annual reports on the difference between the desired emissions level and the reduction targets to which the parties have committed: this is referred to as the ‘emissions gap’. The UNEP reports of 2013 and 2017 are particularly relevant to these proceedings. The 2013 annual report stated for the third time in a row that the parties had failed to fulfil their commitments and that greenhouse gas emissions had risen rather than fallen. UNEP also noted that the Annex I countries together had failed to achieve the emissions targets that were considered necessary to achieve the 25%-40% reduction referred to in the aforementioned Box 13.7 of the report of the third Working Group of experts for AR

UNEP concluded that it becomes less and less likely that emissions will be low enough by 2020 to be on a least-cost pathway towards meeting the 2°C target. Although later reduction actions could ultimately lead to the same temperature targets, according to UNEP these would be more difficult, costlier and riskier. (xxiii) In the 2017 report, UNEP stated that in light of the Paris Agreement, ‘enhanced pre-2020 mitigation action’ was more urgent than ever. UNEP noted that if the emissions gap that had been identified was not closed by 2030, it would be extremely unlikely that the 2°C target could still be reached. This was why, according to UNEP, more ambitious reduction targets were needed for
European climate policy: ETS Directive and Effort Sharing Decision (xxiv) Article 191 of the Treaty on the Functioning of the European Union (‘TFEU’) sets out the Union's environmental targets. The EU formulated directives to implement its environmental policy. The ETS Directive is one of these. The abbreviation ‘ETS’ stands for: Emissions Trading System. This system entails that companies in the ETS sector may only emit greenhouse gases in exchange for the surrender of emissions rights. These emissions rights may be bought, sold or retained. The total volume of greenhouse gases which ETS companies may emit in the period 2013-2020 decreases by 1.74% annually until, in 2020, a 21% reduction is achieved in comparison to the year
(xxv) The Council determined that the European Union must reduce greenhouse gas emissions by at least 20% in 2020, 40% in 2030, and 80%-95% in 2050, measured in each case in comparison to emissions in the reference year
Based on the Effort Sharing Decision, it was determined within the EU that for non-ETS sectors, the reduction target of 20% in 2020 means that the Netherlands will have to achieve an emissions reduction of 16% in comparison with emissions in
(xxvi) According to current [meaning: at the time of the Court of Appeal's judgment] expectations, the European Union as a whole will achieve an emissions reduction of 26%-27% in comparison to emissions in
National climate policy and the results of that policy (xxvii) Based on a 2007 programme entitled ‘Schoon en zuinig’ [Clean and economical], in the period 2007-2011 the Netherlands applied the premise of a reduction target of 30% in 2020 comparison to the emissions level in the reference year
In a letter of 12 October 2009, the then-Minister of Housing, Spatial Planning and the Environment (Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer - ‘VROM’) informed the Dutch House of Representatives about the Netherlands’ negotiations objective within the context of the climate conference in Copenhagen in 2009 (COP-15). This letter stated inter alia: ‘The total of emission reductions proposed by the developed countries so far is insufficient to achieve the 25%-40% reduction in 2020, which is necessary to stay on a credible track to keep the 2ºC target within reach.’ (xxviii) After 2011, the Dutch reduction target was adjusted to the EU-level reduction of 20% in 2020 (in other words, for the Netherlands, a reduction of 16% in the non-ETS sector and 21% in the ETS sector, each time in comparison to emissions in 2005); and of at least 40% in 2030, and 80%-95% in 2050, in each case in comparison to emissions in
(xxix) In the most recent Government Agreement

(2017), the government announced that it would strive to achieve an emissions reduction of at least 49% in 2030 in comparison to emissions in

According to this government agreement, the EU reduction target of 40% in 2030 was not sufficient to achieve the 2°C target, let alone the 1.5°C ambition laid down in the Paris Agreement. (xxx) Dutch CO2 emissions per capita of the population are relatively high in comparison with other industrialised countries. Of the total volume of Dutch greenhouse gas emissions, 85% consists of CO
Dutch CO2 emissions have barely decreased since 1990 and have even risen in recent years. In the period 2008-2012, the Netherlands achieved a reduction of CO2 equivalent emissions of 6.4%. The reduction is attributable to greenhouse gases other than CO
In that same period, the fifteen largest EU Member States achieved an emissions reduction of 11.8%, and the EU as a whole achieved a reduction of 19.2%. (xxxi) The District Court's judgment was premised on the Netherlands achieving a reduction in 2020 of 14%-17% in comparison to 1990 levels. On appeal, the Court of Appeal noted that in 2017, the Netherlands had been expected to achieve a 23% reduction in 2020, taking a margin for uncertainty of 19%-27% into account. This difference is largely attributable to a new calculation method which is more consistent with that used by the IPCC, as a result of which the theoretical reduction percentage is achieved earlier even though the situation is effectively more serious. In 2017, the most recent year prior to the disputed Court of Appeal's judgment, greenhouse gas emissions in the Netherlands had fallen by 13% in comparison to emissions in
The dispute in and out of court 1.3 Urgenda is a citizens’ platform (an NGO) with members from various domains in society . Urgenda is involved In the development of plans and measures to prevent climate change. Urgenda's legal form is that of a foundation under Dutch law, whose object according to its by-laws is: to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands. Urgenda's position is that the State is doing too little – in the interest of preventing dangerous climate change – to mitigate global warming and keep the average temperature from rising by no more than 2°C in comparison to the average temperature in the pre-industrial era. 1.4 The government's care is directed at keeping the country habitable and protecting and improving the environment (See Article 21, Dutch Constitution). Since 2017, responsibility for the environment has been part of the duties of the Minister of Economic Affairs and Climate Policy. 1.5 On 12 November 2012, Urgenda requested the State to commit to reducing Dutch CO2 emissions as of 2020 by 40% in comparison to 1990 levels. The State denied this request on 11 December
In these proceedings, Urgenda is requesting, to the extent relevant in cassation, that the State be ordered to reduce Dutch greenhouse gas emissions by the end of 2020 by at least 25% in comparison to Dutch emissions in the reference year
The State acknowledges the climate problem and the need to reduce greenhouse gas emissions, as well as the aforementioned 2°C target. The State nevertheless disputes the necessity of reducing Dutch emissions by at least 25% in comparison to 1990 levels before the end of the year
The State believes it is only bound by the emissions restrictions agreed in the EU context. According to the State, being able to select the pathway to be followed in achieving the reductions envisaged for 2030 and 2050, after taking all of the practical options and relevant interests into account, is part of its discretionary power. The State emphasises that the worldwide climate problem can only be addressed on a global scale and that the State is complying with all of its treaty obligations and the international agreements relating thereto. Societal and political debate: Dutch Climate Act 1.6 The societal and political debate regarding the greenhouse effect and climate problems has continued outside the context of this case. That debate intensified after the District Court rendered its judgment in the case brought by Urgenda against the State. In this respect, for a better understanding of the procedural documents in cassation that refer to this, it need only be noted that on 12 September 2016, members of the Dutch House of Representatives introduced a legislative proposal for a Climate Act. The bill offers ‘a context for developing policy for the irreversible and gradual reduction of Dutch greenhouse gas emissions for the purpose of mitigating global warming and climate change’. The bill was passed by the House of Representatives on 20 December 2018 and by the Senate on 28 May
The Climate Act has since been promulgated and with the exception of Article 7, it entered into effect on 1 September
1.7 The Climate Act does not contain a standard for greenhouse gas emissions in
Article 2 of this act speaks of ‘a framework for developing policy for the irreversible and gradual reduction of greenhouse gas emissions in the Netherlands to a level that is 95% lower in 2050 than it was in 1990, for the purpose of mitigating global warming and climate change’. The second paragraph of this article continues: ‘In order to achieve this target for 2050, Our Ministers in this area will work to reduce greenhouse gas emissions by 49% in 2030 and to ensure that the generation of electricity is completely CO2-neutral in 2050’. The act provides for the periodic adoption of a climate plan. The first climate period relates to the period from 2021 through 2030 (Article 4

(3)). 1.8 Finally, with regard to the out-of-court debate, it is worth noting that Climate Consultations have been organised in which a large number of stakeholder organisations have participated. Five ‘sector tables’ for electricity, development, industry, agriculture and land use, and mobility are working on a draft climate agreement. On 10 July 2018, the main points of a proposal were submitted to the government, and the final proposal was submitted on 21 December 2018 − and thus after the date on which the disputed Court of Appeal's judgment was rendered. On 28 June 2019 – after the debate in cassation had been closed – the Minister of Economic Affairs and Climate Policy sent a climate agreement to the President of the Senate. The proceedings in the first instance 1.9 In the first instance, after amending its claim, and to the extent relevant in cassation, Urgenda requested the District Court to order the State to limit the collective volume of Dutch greenhouse gas emissions such that this volume would be reduced by 40% at the end of the year 2020, or at least by a minimum of 25% in comparison to the volume in the year

1.10 In the first instance, Urgenda litigated both on its own behalf and in its role as representative ad litem of the 886 individuals listed in Appendix A to the initiating summons of 20 November
1.11 Urgenda provided, briefly summarized, the following as substantiation for its claim for the reduction order. The greenhouse gas emissions from the Netherlands are contributing to a dangerous change in the climate. The Netherlands’ share of worldwide emissions is excessive, in both absolute and relative terms (per capita of the population). This means that Dutch emissions, for which the State as a sovereign power has systemic responsibility, are unlawful, and in particular violate rules of unwritten law pertaining to proper social conduct towards Urgenda (Article 6:162

(2)DCC), as well as Articles 2 and 8 ECHR. Under both national and international law, the State is obliged, in the interests of preventing dangerous climate change, to ensure the reduction of the Dutch emissions level. This duty of care entails that in 2020, the Netherlands must achieve a reduction in greenhouse gas emissions of 25%-40% in comparison to emissions in 1990. A reduction of this magnitude is necessary to have any hope of achieving the 2°C target. This is also the most cost-effective option. 1.12 What follows is a summary of the defences put forward by the State, to the extent still relevant in cassation. According to the State, Urgenda lacks standing to the extent that it is acting on behalf of current or future generations in countries other than the Netherlands. Apart from this, the reduction order as sought cannot be granted because no unlawful acts have been committed (and there is no real threat that such will be committed) against Urgenda that are attributable to the State. Furthermore, the requirements of Article 3:296 DCC (court order) and of Article 6:162 DCC (unlawful act) have not been met. There is no basis in either national or international law for a duty that legally requires the State to take measures in order to achieve the reduction target as sought. Dutch climate policy does not violate Articles 2 and 8 ECHR. Granting the reduction order being sought would also be contrary to the State's margin of appreciation and the system of the separation of powers. 1.13 In its judgment of 24 June 2015 (ECLI:NL:RBDHA:2015:7145), the District Court denied the claims for a lack of interest to the extent that Urgenda had instituted these claims on behalf of 886 individual claimants (see paras. 4.10 and 4.109 of the District Court's judgment). To the extent Urgenda is was acting on its own behalf, the District Court held that it did have standing: these are the types of claims that the Dutch legislature wanted to make possible by means of Article 3:305a DCC (para. 4.6 of the District Court's judgment). As, according to its by-laws, Urgenda acts in the interest of a sustainable society that extends beyond the country's borders, it can also base its claims on the assertion that Dutch greenhouse gas emissions may affect persons outside of the country's borders (para. 4.7 of the District Court's judgment). Where Urgenda is acting on behalf of future generations, it is also striving to serve the interest that future generations have in a sustainable society as referred to in its by-laws (para. 4.8 of the District Court's judgment). 1.14 To the extent Urgenda is acting on its own behalf, the District Court partially granted the reduction order as sought. The District Court ordered the State to ‘limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, such that this volume will have been reduced by at least 25% at the end of 2020 compared to the level of the year 1990'. All additional or other claims were denied. 1.15 At 4.C (paras. 4.11-4.34 of the District Court's judgment), the District Court discussed the current state of the art in climatology and climate policy. According to the District Court, the Dutch reduction target was below the standard considered necessary in the areas of climatology and international climate policy. That standard entails that the prevention of dangerous climate change requires Annex I countries (including the Netherlands) to reduce their greenhouse gas emissions by 25%-40% in 2020 in order to achieve the 2°C target (see para. 4.31(

vi)of the District Court's judgment). According to the District Court, the dispute hinges on the question of whether the State is failing to meet its duty of care by applying a reduction target for the year 2020 that is lower than the 25%-40% reduction in comparison to the 1990 standard considered necessary according to climatology experts and international climate policy (para. 4.34 of the District Court's judgment). 1.16 At 4.D (paras. 4.35-4.93 of the District Court's judgment), the District Court discussed the question of the legal duty borne by the State. In this respect, the District Court applied the three elements provided for in Article 6:162 DCC, namely: (
i)has a subjective right been infringed, or (
ii)has the State acted in violation of a statutory obligation or (iii) in violation of rules of unwritten law pertaining to proper social conduct? In paras. 4.36-4.44, the District Court examined whether the State acted in violation of a statutory obligation. The District Court concluded that the State's international law obligations under the UNFCCC, the provisions contained in the Kyoto Protocol and the no-harm principle only entailed obligations to other states. These are not treaty provisions that are ‘binding on all persons’ as referred to in Article 93 of the Dutch Constitution. Urgenda cannot directly rely on those provisions (para. 4.42 of the District Court's judgment). However, when substantively interpreting open standards and terms under national law, including the societal standard of due care, courts may indeed assign a certain ‘reflex effect’ to such international law obligations (para. 4.43 of the District Court's judgment). This also applies to compliance with open standards under European law (para. 4.44 of the District Court's judgment). 1.17 The District Court then examined whether any of Urgenda's subjective rights had been violated. The District Court answered this question in the negative. According to the District Court, Urgenda was not entitled to rely on Article 2 or Article 8 ECHR because it could not be considered a direct or an indirect ‘victim’ within the meaning of Article 34 ECHR (para. 4.45 of the District Court's judgment). Articles 2 and 8 ECHR and the ECtHR's substantive interpretation thereof may very well serve as a source of inspiration for the substantive interpretation of open private-law standards (para. 4.46 of the District Court's judgment). 1.18 In paras. 4.53-4.82, the District Court examined whether the State was acting in violation of a duty of care ensuing from unwritten law pertaining to proper social conduct. In so doing, the District Court took into account the doctrine of hazardous negligence (the criteria from the Netherlands Supreme Court's judgment in Kelderluik; see para. 4.54 of the District Court's judgment), as well as the State's discretionary power (see para. 4.55 of the District Court's judgment) and the targets and principles of international climate law and the law of the European Union, including the principle of a high level of protection, the precautionary principle and the prevention principle (see Article 191

(2)TFEU; see paras. 4.56-4.62 of the District Court's judgment). The District Court focused its examination on the question of ‘whether according to objective standards the reduction measures taken by the State to prevent hazardous climate change for humanity and the environment are sufficient, also in view of the State’s discretionary power’ (para. 4.63 District Court’s Judgment). 1.19 In that context, the District Court addressed the following, in the order given: (

i)the nature and scope of the harm resulting from climate change, (
ii)the knowledge and foreseeability of this harm, (iii) the chance that a dangerous climate change will materialise, (
iv)the nature of the acts or omissions on the part of the State, (
v)the onerousness of the precautionary measures and (
vi)the State's discretionary power (paras. 4.63 and 4.64-4.82 of the District Court’s Judgment). 1.20 The District Court announced its conclusions in paras. 4.83-4.93. Given the severity of the impact of climate change and the significant chance that a dangerous climate change will occur without mitigating measures, the State has a duty of care to take mitigating measures. Because limiting the concentration of greenhouse gases in the atmosphere to 450 ppm is necessary to prevent dangerous climate change, the State must take measures that will reduce emissions of greenhouse gases so that this limitation can be achieved. It is an established fact that the State's current emissions policy is inadequate (paras. 4.83-4.84 of the District Court’s judgment): the state has opted for a reduction target of less than 20% for 2020. Given the cumulation effect, a postponement as advocated by the State (namely: a less-stringent reduction between 2015 and 2030 and a sharp reduction starting in 2030) will significantly contribute to the risk of dangerous climate change. This postponement is therefore not an adequate and acceptable alternative to the necessary reduction by 25%-40% in 2020 in comparison to 1990 emissions levels – a reduction that has been scientifically proven and acknowledged (para. 4.85 of the District Court’s judgment). The State has not asserted that a reduction of 25%-40% in 2020 would result in a disproportionate burden for the Netherlands or for the State. Given the State's discretionary power, the District Court saw no sufficient grounds to oblige the state to comply with a reduction level in excess of 25% (the lower limit for the aforementioned standard of 25%-40%; see para. 4.86 of the District Court’s judgment). 1.21 The District Court then examined whether the unlawful conduct can be attributed to the State, the possibility of harm and the causal link between the acts of the State and that harm, and the relativity requirement (paras. 4.87-4.91 of the District Court’s judgment). The District Court concluded that the State had acted unlawfully towards Urgenda by basing its acts on a reduction target for 2020 of less than 25% in comparison to emissions levels in 1990 (para. 4.93 of the District Court’s judgment). 1.22 Finally, the District Court discussed the defence asserting that the order being sought by Urgenda was contrary to the system of the separation of powers. The District Court rejected this defence (paras. 4.94-4.102 of the District Court's judgment). The proceedings on appeal 1.23 The State filed an appeal against the District Court's judgment with The Hague Court of Appeal. With 29 grounds for appeal, the full scope of the dispute was presented to the Court of Appeal. 1.24 Urgenda, litigating on its own behalf, instituted a cross-appeal, asserting a single ground for appeal. This ground was aimed at the District Court's opinion that in light of Article 34 ECHR, Urgenda could not rely on Articles 2 and 8 ECHR in these proceedings. Urgenda did not object to the District Court's refusal to issue a reduction order that extends beyond the 25% reduction in 2020. The appeal was not directed against the rejection of its other claims. 1.25 On balance, the only outstanding question on appeal was whether the State was obliged to reduce, or to ensure the reduction of, greenhouse gas emissions at the end of 2020 by 25% in comparison to Dutch emissions levels in 1990. Like the District Court, the Court of Appeal answered this question in the affirmative. 1.26 In its judgment of 9 October 2018 (ECLI:NL:GHDHA:2018:2591), the Court of Appeal sustained Urgenda's ground in the cross-appeal. The District Court failed to appreciate that Article 34 ECHR only concerns access to the European Court of Human Rights (ECtHR) (para. 35). Assuming that individuals who fall under the State’s jurisdiction may invoke Articles 2 and 8 ECHR, which have direct effect, before a Dutch court, Urgenda is entitled to do so on their behalf under Article 3:305a DCC. The Court of Appeal rejected the State’s grounds in the principal appeal (para. 76). The Court of Appeal then affirmed the District Court's judgment and declared its own judgment to be immediately enforceable regardless of any appeal. 1.27 Briefly summarised, the Court of Appeal held as follows. There is no dispute as to Urgenda's standing to pursue its claim to the extent that it is representing the current generation of Dutch residents. It is without a doubt plausible that the current generation of Dutch residents will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced. This means that the question of whether Urgenda has standing to pursue its claims on behalf of future generations of Dutch residents and current and future generations of foreigners need not be addressed (para. 37). Urgenda has a sufficient interest in its claim, as there is a real threat of dangerous climate change (para. 38). 1.28 If the State knows that there is a real and immediate risk, it has a positive duty pursuant to Articles 2 and 8 ECHR to take preventive measures (para. 43). The State has a wide margin of appreciation when it comes to choosing the measures to be taken (para. 42). Based on the facts and circumstances proven during the proceedings (para. 44), it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of Dutch residents will be confronted with loss of life and/or disruption of family life. Pursuant to the provisions of Articles 2 and 8 ECHR, the State is obliged to offer protection against this real threat (para. 45). 1.29 With regard to the unlawful acts that were asserted, the Court of Appeal's opinion can be summarised as follows (paras. 46-53): - The parties agree that global greenhouse gas emissions must be brought to a halt in 2100. The parties do not disagree on the reductions that will be necessary in the interim, those being emissions reductions of 80%-95% in 2050 and 49% in 2030. What must be examined is whether the State has acted unlawfully in respect of Urgenda by failing to reduce, or failing to ensure the reduction of, greenhouse gas emissions by at least 25% by the end of 2020 despite the aforementioned real threat (para. 46). - A substantial effort must be made in order to achieve a reduction of 49% in 2030. It is also an established fact that it is desirable to start the reduction efforts at the earliest stage possible in order to limit the total emissions in this period. If the equal distribution constituting the State's premise for the reduction target of 49% in 2030 were extrapolated to the present, the result would be a reduction target of 28% before the end of the year 2020 (para. 47). - In both AR4 and AR5, the IPCC also assumes that a concentration level of 450 ppm may not be exceeded if the 2ºC target is to be achieved. According to AR4, for that level to be achieved, the total emissions by Annex I countries (of which the Netherlands is one) must be 25% to 40% lower in 2020 than in 1990 (para. 48). AR5 gives no reason to assume that the reduction scenario from AR4 has become outdated. The Court of Appeal therefore assumed that an emissions reduction of 25%-40% must be achieved in 2020 if the 2ºC target is to be achieved (para. 49). - Incidentally, even in the 450 ppm scenario, there will still be a real risk that the 2ºC target will not be met, even despite the fact that it has since been acknowledged that, to be safe, the temperature rise would have to be much closer to 1.5ºC than to 2ºC. Therefore, neither the 450 ppm scenario nor the reduction target of 25%-40% in 2020 based on that scenario is overly pessimistic (para. 50). - The State has known about the reduction target of 25%-40% for a long time. This reduction target has been referenced at climate conferences since AR4 was published in 2007. That may not have established a directly binding legal standard, but it does confirm that a reduction of at least 25%-40% in 2020 is required to prevent dangerous climate change (para. 51). - Lastly, the Court of Appeal held that it is relevant that until 2011, the State's reduction target for 2020 was 30% because the State was convinced that a reduction of less than 25%-40% in 2020 would not be credible to keep the 2ºC target within reach. No scientific substantiation was provided for the adjustment of the Netherlands’ reduction target for 2020; in particular, the State failed to substantiate why a reduction of only 20% per 2020 should now be considered credible in an EU context (para. 52). The Court of Appeal is of the opinion that a reduction obligation of at least 25% by the end of 2020, as ordered by the District Court, is in line with the State’s duty of care (para. 53). - In the findings that follow, the Court of Appeal discussed the State's defences, including the argument that the ETS system precludes farther-reaching reduction measures (para. 54) and State's reliance on the waterbed effect and carbon leakage (paras. 55-58). The fact that climate change is a worldwide problem that the State cannot solve on its own does not relieve the State of its obligation to take measures in its territory, within its capabilities, which, in concert with the efforts of other states, provide protection from the hazards of dangerous climate change (para. 62). According to the Court of Appeal, the fact that there is no complete scientific certainty regarding the effectiveness of the reduction order does not entitle the State to refrain from taking further measures (para. 63). 1.30 Finally, the Court of Appeal rejected the State's reliance on the system of the separation of powers. The Court of Appeal held that measures were called for because the State was violating human rights, and that the reduction order imposed on the State allowed it sufficient room to choose how it would comply with that order (para. 67). The District Court had not issued a prohibited order to enact legislation, either (para. 68). The Court of Appeal emphasised that it was obliged to apply treaty provisions with direct effect – such as Articles 2 and 8 ECHR – if the Netherlands is a party to the treaty in question (para. 69). The Court of Appeal held that the State was failing to fulfil its duty of care pursuant to Articles 2 and 8 ECHR by not reducing emissions by at least 25% by the end of 2020. By so doing, the State is acting unlawfully. The Court of Appeal therefore declined to address the State's grounds regarding the doctrine of hazardous negligence (para. 76). The proceedings in cassation 1.31 The State instituted its appeal in cassation in good time, and seeks the reversal of the Court of Appeal's judgment and such further relief as the Supreme Court deems appropriate. 1.32 In cassation, Urgenda submitted a Defence, which it concluded with a motion to deny the request for cassation. 1.33 On 24 May 2019, the parties had their attorneys argue orally their positions based on the Written Arguments they submitted. A further Written Explanation was provided by the State on that same day. Urgenda declined to provide a further Written Explanation on that day. 1.34 On 21 June 2019, the State submitted a Reply and Urgenda a Rejoinder, after which the parties requested the Supreme Court to render judgment. 1.35 For the benefit of non-Dutch readers, we note that new findings of fact are not given in proceedings for cassation: the court in cassation is bound by the Court of Appeal's findings of fact. The Supreme Court limits its examination to the grounds on which the appeal in cassation is based. Grounds are the reasons a litigant asserts for the reversal of the disputed judgment. A judgment can be reversed if certain procedural requirements have not been met or if the law has been violated – although the latter does not apply to the laws of foreign states. The factual basis for the grounds is limited to the disputed judgment and the procedural documents. 2Introductory considerations Ground for the reduction order; layout of this chapter 2.1 The duty of care accepted by the District Court and the Court of Appeal – the obligation to reduce greenhouse gas emissions from Dutch territory by 25% as of the end of 2020 in comparison to 1990 – is not part of any written national or international law as such. The District Court derived this duty of care from the open standard of Article 6:162

(2)DCC. The Court of Appeal identified a treaty-law basis for this duty of care in the open standards of Articles 2 and 8 ECHR. To that extent, the reasoning underlying the two judgments differs. However, the specific, substantive interpretation of the duty of care – the factual substantiation for the reduction order based on insights drawn from climatology, the targets of international climate policy and the standards and principles of international law – is largely the same in the reasoning of both the District Court and Court of Appeal. 2.2 To promote a thorough understanding of the reasons offered by the District Court and the Court of Appeal, this chapter discusses introductory considerations regarding tort law, including the doctrine of hazardous negligence as applied by the District Court, and Articles 2 and 8 ECHR as applied by the Court of Appeal. The requirements of standing for a class action are discussed first (para. 2.3 et seq.), followed by a segue into the meaning of the causality requirement (para. 2.10 et seq.). We then discuss the judicial review of lawfulness under Dutch law and the general standard of care (para. 2.14 et seq.), devoting special attention to the doctrine of hazardous negligence (see para. 2.20 et seq.). The carry-over effect of international law on Dutch law (in the context of the judicial review of lawfulness) is then discussed in para. 2.26 et seq. After that, attention is turned to the European Convention on Human Rights (ECHR). After several introductory remarks about the scope of protection (see para. 2.34 et seq.), attention will be devoted to ECtHR case law on positive obligations pursuant to Articles 2 and 8 ECHR (para. 2.41 et seq.). Afterwards, in para. 2.50 et seq., we will examine whether the Court of Appeal was entitled to base its reduction order on those articles. To that end, we discuss four main lines of ECtHR case law (para. 2.53 et seq.). In Chapter 3, we discuss the State's complaints regarding the human rights-law aspects of the order. The technical climatological aspects of the order will be discussed in Chapter 4. Protection of general interests in a class action 2.3 Pursuant to Article 3:305a DCC, a legal entity like Urgenda may institute a legal claim to protect the ‘similar interests’ of other parties to the extent it promotes such interests pursuant to its by-laws (para. 1). The legal entity may be held to lack standing if it has not made sufficient efforts to achieve the object of the claim through negotiations with the defendant, or if the interests of the persons on whose behalf the claim was instituted are not sufficiently safeguarded by that claim (para. 2). The legal claim cannot be intended to obtain an award of monetary compensation (para. 3). 2.4 Article 3:305a DCC offers a basis for both ‘group actions’ and ‘general interest actions’. Where group actions are involved, the collective interests of a specific or specifiable number of individuals are represented. General interest actions involve a legal entity representing general interests that cannot be individualised because they accrue to a much larger, and thus diffuse and unspecific group of persons. 2.5 According to the history of this statutory provision, ideological interests can also be represented in a class action. Societal divisiveness about the value that must be attributed to such interests or the manner in which those interests must be weighed against other, conflicting interests do not deprive a claimant of standing in a class action in the Netherlands. Nor does the fact that ‘diffuse’ interests are involved, in the sense that addressing the harmful effect of a violation of the right being invoked on individuals is difficult, form an impediment. Building on this, the Supreme Court has held that the fact that a substantial portion of the individuals whose interests a class action is intended to protect disagree with the objective of the claim also does not preclude a claim pursuant to Article 3:305a DCC. According to the Supreme Court, the decisive factor in a given case is whether it involves ‘similar interests’ within the meaning of Article 3:305a

(1)DCC. That requirement is met if the interests in question lend themselves to consolidation such that the effective and efficient legal protection of the stakeholders can be advanced. 2.6 In accordance with the foregoing, the parliamentary history and case law accept that a class action to protect the living environment can be instituted without this requiring an identifiable group of individuals in need of protection. An argument that also applies in such cases is that efficient and effective legal protection can be advanced if, rather than litigating the same issue against the government separately, individuals opt instead to debate the issue (exchange arguments) on a collective level. As stated, the District Court did not address the issue of standing to the extent Urgenda was acting as the representative ad litem for the 886 individual claimants in the first instance. The District Court held that Urgenda had standing to the extent it was acting on its own behalf, including to the extent it was representing the interests of persons outside of Dutch territory and future generations. The Court of Appeal did not address the State's grounds regarding that issue, because according to the Court of Appeal, there is no dispute that Urgenda has standing to the extent it is acting on behalf of the current generation of Dutch residents against greenhouse gas emissions in Dutch territory. Requirement of a sufficient interest in cases seeking orders or injunctions 2.7 As an extension of the issue of standing just discussed – the question of whether environmental interests are eligible for protection based on Article 3:305a DCC – there is the question of whether Urgenda has a sufficient interest, as meant in Article 3:303 DCC, in the court order it is seeking. The Court of Appeal answered that question in the affirmative in para. 38. None of the complaints in cassation are directed against that opinion. The requirement of a sufficient interest also plays an auxiliary role in the complaints on the effect of the reduction order. 2.8 Article 3:296 DCC allows a court to order a party to perform its legal obligation to another party if that other party institutes a claim to that effect. Granting a claim for an order or injunction that is intended to prevent a future violation of a standard does not require that all the requirements for liability pursuant to an unlawful act, as laid down in Article 6:162 DCC (unlawfulness, attributability, harm, causal connection and relativity) must be met. What is required is that (i) the defendant is under a legal obligation to the claimant and (ii) the claimant has a sufficient interest in preventing the imminent breach of that obligation. The first follows from Article 3:296 DCC (‘he who is obliged to another...’). The second follows from Article 3:303 DCC (‘A person has no right of action where he lacks sufficient interest.’). 2.9 In the context of a claim for an injunction pursuant to an unlawful act, the Supreme Court has put it in the following terms: there must be a ‘specific interest’ in the injunction, in the sense that there is a ‘specific and real threat’ that the prohibited actions will be taken. Requirement of causality in cases seeking orders or injunctions 2.10 The foregoing implies that the granting of an order or injunction pursuant to Article 3:296 DCC in connection with Article 6:162 DCC requires no demonstrable or imminent harm, nor any connection with an unlawful act that has already been committed. It does, however, require an imminent impairment of interests as a result of the feared unlawful act. This follows on the one hand from the aforementioned requirement of a sufficient interest as laid down in Article 3:303 DCC and, on the other, from the unlawfulness requirement as laid down in Article 6:162 DCC. ‘Unlawfulness’ is a relative term, of course, in the sense that the violation of a standard is only unlawful in respect of persons whose interests are protected by the standard that has been violated (Article 6:162

(1)DCC; cf. also Article 3:296

(1)DCC and Article 6:163 DCC). Furthermore, many ‘unlawful act standards’ – including the safety standard applied by the District Court to determine whether there was an issue of hazardous negligence and the standard applied by the Court of Appeal relating to the government's ‘positive obligations’ in respect of situations which are hazardous to the living environment – are essentially based on a weighing of interests. The court never proceeds to such a weighing of interest if the claimant does not qualify as an ‘interested party’; in other words, a potential ‘victim’ of the violation of the law. 2.11 The literature also refers to the difficulties that the foregoing can cause in the context of climate change. Climate change is a global problem that is attributable to many causes. The reduction of greenhouse gas emissions by one country will not eradicate the worldwide danger of climate change. When it comes to small countries like the Netherlands, reductions have only a limited effect on global emissions. This gives rise to the question of whether Urgenda has a sufficient interest in the reduction order it seeks. More specifically, there is a question of whether the imminent impairment of interests resulting from climate change may be effectively counteracted by obliging just the Netherlands to a certain degree or certain speed of reduction. 2.12 All things considered, the issue is a causality problem that is part and parcel of all cases of environmental harm. Harm to the living environment usually occurs gradually, due to a multitude of factors, as a consequence of pollution that does not stop at a country's borders. This does not seem to be an insurmountable obstacle to holding polluters liable for any resulting harm. In the Kalimijnen judgment, which concerned the harm caused by the discharge of salt into a river, the Supreme Court accepted the possibility that each polluter would be held liable for a percentage of the harm that corresponded to its share in the pollution. This 'linear' approach – to be distinguished from ‘joint and several’ liability for all harm, is also recognised in international environmental law. The literature also refers to Article 47

(1)of the Articles on Responsibility of States for Intentionally Wrongful Acts as established by the International Law Commission: ‘Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.’ 2.13 By analogy, it might also be assumed that a claimant has a sufficient interest in being granted the order or injunction it is seeking if the order or injunction could contribute to preventing the asserted imminent impairment of interests. An illustrative example, and one that is also cited by Urgenda,is the US Supreme Court's decision in the case of Massachusetts v. Environmental Protection Agency. Very briefly put, that case concerned the question of whether the US Environmental Protection Agency (EPA) was bound to regulate the emission of CO2 as an air pollutant. The US Supreme Court answered that question in the affirmative, holding inter alia: ‘While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. … A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.’ Violation of human rights as an unlawful act 2.14 As stated, a defendant must have a legal duty to the claimant in order for an order or injunction to be granted. Such a legal duty may be based on inter alia Article 6:162

(2)DCC. That provision defines an 'unlawful act' as: (

i)the violation of a right, (
ii)an act or omission breaching a duty imposed by law and (iii) an act or omission breaching a rule of unwritten law pertaining to proper social conduct. 2.15 The impairment of human rights that are protected by the constitution and/or treaty law may fall within the scope of the first or second category of unlawfulness referred to in the previous paragraph. Human rights may also influence the substantive interpretation of an unwritten rule of law (the third category). The District Court chose the latter route in this case, by attributing a 'reflex effect' to (inter alia) Articles 2 and 8 ECHR in the context of reviewing the unwritten law. The disputed judgment does not indicate with certainty whether the Court of Appeal was applying Articles 2 and 8 ECHR directly or indirectly, by way of Article 6:162

(2)DCC. Regardless, when specifically interpreting the duty of care derived from Articles 2 and 8 ECHR, the Court of Appeal relied not only on ECtHR case law, but also on treaties, principles of international climate law, and non-binding international climate policy instruments, such as the various COP decisions cited by the Court of Appeal. The question of the extent to which such international legal sources have a carry-over effect on national legal order (directly via Articles 2 and 8 ECHR, or indirectly via Article 6:162

(2)DCC) is discussed in paras. 2.26 et seq. below. 2.16 For the sake of completeness, we note that the constitutional right to environmental protection anchored in Article 21 of the Constitution ('It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment') must be interpreted as an 'instructional standard' aimed at the government. It is against this backdrop that this provision has played only a subordinated role in these proceedings. Violation of the standards of due care as an unlawful act 2.17 The third category of unlawful act referred to in Article 6:162

(2)DCC which the District Court applied can be traced back to the Lindenbaum/Cohen judgment from 1919. Since that judgment, it has generally been accepted that engagement in an act or omission breaching a rule of unwritten law pertaining to proper social conduct also constitutes an unlawful act. 2.18 Characteristic for this category of unlawful act is its contextual nature: what the unwritten law entails in a given set of circumstances must be assessed on a case-by-case basis. This comes down to a weighing of interests. In the Kalimijnen judgment referred to above, which regarded environmental pollution resulting from discharges of salt into a river, the Supreme Court held that when answering the question of whether the discharges of salt were contrary to the unwritten law of generally accepted standards and thus constituted an unlawful act against the users of the river downstream, account had to be taken 'on the one hand, of the nature and weight of the interests served by the discharges and, on the other, the interests served by the downstream use'. Building on this, the Supreme Court held 'that in weighing these opposing interests, special weight must be assigned to the interests of the downstream user to the extent that said person might, in principle, expect the river not to be excessively polluted by major discharges'. 2.19 A standard that depends on the circumstances of the case can be challenged on the ground that it offers insufficient legal certainty. The literature thus also shows that, when possible, the courts must base specific interpretations of standards of care on objective assumptions. The following are examples of what might serve as objective assumptions: non-binding guidelines and codes of conduct (both of which are 'soft law'), as well as treaty provisions and principles of international law which do not have direct effect. We revisit this topic in para. 2.30, et seq. Points of view on unlawful hazardous negligence (Kelderluik factors) 2.20 An assessment framework has been developed in case law for the review of due care in cases involving hazardous negligence. These are situations in which the perpetrator has caused a hazard to persons or property to arise and/or has allowed such hazard to continue to exist. The societal standard of due care requires persons to refrain from exposing others to a hazard greater than what is reasonably responsible in the given circumstances. More specifically, this means that depending on the circumstances, adequate precautionary measures must be taken to eliminate the hazard or at least to reduce it to socially acceptable proportions. 2.21 Most cases of hazardous negligence regard a hazard created by the perpetrator himself. The doctrine also applies to persons who have put another person in jeopardy through negligence. In particular, this concerns persons who owe a special duty of care to potential victims, such as managers of buildings and building sites. However, the government's liability as a supervisory authority in respect of hazardous activities perpetrated by others is also linked to the doctrine of hazardous negligence. 2.22 In the Kelderluik (‘Cellar hatch’) judgment, the Supreme Court formulated points of view on the unlawfulness assessment in cases involving hazardous negligence. These points of view concern (

i)the probability that potential victims would not exercise the required attention and due care, (
ii)the chance that accidents would ensue as a result, (iii) the seriousness of the possible consequences, and (
iv)the onerousness of precautionary measures. These ‘Kelderluik factors’ were repeated in later case law, and supplemented with additional points of view, such as (
v)the ‘normality’ of precautionary measures and (
vi)the nature of the conduct. 2.23 The Kelderluik factors focus on hazardous negligence situations. Although these do not constitute a framework for applying societal standards of due care in general, these factors are still applied even in cases which do not involve hazardous negligence (analogously, supplemented with additional points of view, if necessary). In this respect, it is relevant that the Kelderluik factors are in line with basic notions about handling risks. They are grounded in legal and economic principles and are also accepted, in similar phrasing, in other legal systems. One example is the 'Learned Hand' formula in Anglo-American legal systems. The Principles of European Tort Law and the Oslo Principles on Global Climate Obligations contain comparable assessment frameworks. The Kelderluik factors show similarities to the viewpoints which the ECtHR maintains in its case law on positive obligations in environmentally hazardous situations (to be discussed below). Hazardous negligence as ground for obligations in connection with the climate? 2.24 In this case, as explained, the District Court applied the Kelderluik factors, supplemented by other viewpoints, such as the discretionary power to which the government is entitled. Some authors have criticised the application of the doctrine of hazardous negligence. In their opinion, this doctrine is intended for simple accident situations and is not suitable for assessing government policy in issues that are as complicated as climate change. Other authors believe that the doctrine of hazardous negligence is the perfect framework for addressing the dangers of climate change. In this regard, they refer to the broad applicability of the Kelderluik factors as a general framework for dealing with risks. 2.25 In various commentaries on the contested judgment, the application of treaty law binding on all persons (Articles 2 and 8 ECHR) is deemed a more legitimate approach from the constitutional perspective than assigning ‘reflex effect’ to non-binding treaty provisions within the context of Article 6:162

(2)DCC. It can be added to this that human rights appear to be increasingly internationally acknowledged as a possible basis for ‘climate obligations’ of the government (see section 2.79 et seq. below). Nevertheless, the human rights approach of the Court of Appeal has been criticised (see section 2.51 et seq. below). Direct effect and/or reflex effect of international law 2.26 Both in the Court of Appeal’s human rights approach and in the District Court’s reasoning based on Article 6:162 DCC, standards and principles of international law and non-binding instruments of international climate policy play an important role in the substantive interpretation of the State’s obligations in relation to the dangers of climate change. 2.27 For some time now, the Dutch Constitution has contained provisions that make it possible for the court to also incorporate treaty law in its judgment, in addition to the applicable laws. Article 93 of the Dutch Constitution stipulates that provisions of treaties and resolutions by international organisations that may be binding on all persons by virtue of their contents will become binding after they have been published. Article 94 of the Dutch Constitution stipulates that statutory regulations in force within the Kingdom do not apply if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons. This constitution provision has made it possible for the court, when assessing a submitted claim, to dis-apply a statutory regulation on the grounds of it conflicting with a provision of a treaty that is binding on all persons. 2.28 The concept of ‘provisions of treaties (...) that may be binding on all persons by virtue of their contents’ is interpreted by the Supreme Court as follows: 'The question as to what extent a provision of a treaty has direct effect within the meaning of Articles 93 and 94 of the Dutch Constitution must be answered by means of its interpretation. This interpretation should be based on the standards set out in Articles 31-33 of the Vienna Convention on the Law of Treaties of 23 May 1969 (Bulletin of Treaties, 1972, 51, and 1985, 79). (...) If it does not follow from either the text or the treaty's history that the provision of the treaty was not meant to have direct effect, the content of that provision is decisive. The question is whether it is unconditional and sufficiently precise to be applied as a positive right in the national legal order without reservation (see Supreme Court 1 April 2011, ECLI:NL:HR:2011:BP3044, NJ 2011/354 (…)). If the result to be achieved under a provision of a treaty in national law is unconditional and sufficiently precise, the mere fact that the legislator or the government is allowed freedom of choice or policy as to the measures to be taken to achieve that result does not preclude the provision from having direct effect. Whether that effect exists depends on whether the provision can function as a positive right in the context in which it is invoked. Contrary to what the State argues, the mere existence of freedom of choice or policy does not mean that there can be no direct effect. (Cf. Supreme Court 09 April 2010, ECLI:NL:HR:2010:BC4959, NJ 2010/388 (SGP))'. 2.29 Advocate General P. Vlas made the following comments on this standard: 'What is new is that the Supreme Court has considered that the direct effect of a treaty provision depends on the question of whether “the provision can function as a positive right in the context in which it is invoked'. The Supreme Court therefore seems to accept a contextual, or relative, approach to the direct effect of treaty provisions. As a result, depending on the context in which it is invoked, a treaty provision will have direct effect in one case and not in another, and the assessment of the direct effect of a treaty provision and the assessment of its compatibility with that provision will become more closely intertwined.’ 2.30 Treaty provisions that are not ‘binding on all persons’ within the meaning of Articles 93 and 94 of the Dutch Constitution can only have an indirect impact on the finding of unlawfulness. First of all, the interpretation of rules of national law is ‘treaty-based’ where possible, in accordance with the principle of international law that States are presumed to want to comply with their treaty obligations. Secondly, in implementing open standards, the national court will take international law into account as much as possible (irrespective of whether or not it has direct effect). This is the concept of reflex effect. It should be noted that it is not always possible to make a clear distinction between the two figures. Soft law as a source of international law 2.31 The distinction between direct effect, interpretation in accordance with the treaty and reflex effect has become more vague with the rise of ‘soft law’ within the context of international law. This refers to a wide variety of non-binding international instruments, such as guidelines, action plans, conference statements and non-binding resolutions of international organisations. Although these instruments are not legally binding in themselves, significance is increasingly attributed to them in the implementation of generally formulated obligations under international law and, by extension, in the implementation of open standards in national law. The ECtHR uses this technique as well, in the context of the common ground method to be discussed below. Moreover, it has been argued in the literature that it is not so much the legal status of the instrument that should be decisive for the classification as hard law or soft law, but rather the actual substance of the rule laid down therein, i.e. whether or not that rule is suitable for application as a binding law. This approach is somewhat comparable to the ‘contextual’ criterion from the Smoking Ban judgment discussed in para. 2.28. 2.32 History shows that soft law not seldom acts as a trailblazer for hard law: initially non-binding action plans and declarations of intent can later result in enforceable obligations under international law. N.J. Schrijver refers to this process as ‘crystallization’.Climate change is cited as an example of a field of law in which soft law has developed into hard law over the years, although it should be noted that by no means all of the objectives that the international community has set for itself in this respect have ultimately been enshrined in binding treaties. But this does not alter the fact that soft law can also play an important role in this subject. For instance, the authors of the Oslo Principles on Global Climate Obligations argue the following: 'The repeated pledges by world leaders, in and outside the COP framework, and the urgent need to come to grips with the looming threats advocated by these leaders may in themselves not amount to legal obligations, but they are not meaningless either. Taken together with other legal bases, they help to crystallise enforceable obligations on countries.' 2.33 Fleuren concludes that this has put the concept of ‘direct effect’ into perspective. He endorses this outcome and, to that extent, the judgments of the District Court and the Court of Appeal. Schrijver, Loth and Van Gestel are also positive about the way in which the District Court has linked national and international law in this case. Other authors are critical on this point. Briefly put, their opinion is that the limits of the judiciary's duty in forming law are exceeded when reflex effect is assigned to non-directly binding treaty provisions and (all the more) by assigning reflex effect to non-binding international instruments. Protection of human rights under the ECHR 2.34 Article 1 ECHR provides that the Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention. This obligation on States to respect human rights determines in many respects the scope of the legal protection provided by the ECHR. First of all, this shows that human rights apply primarily in the (vertical) relationship between government and citizens (see section 2.35 below). Secondly, this shows that the legal protection offered by the ECHR is, in principle, territorial (see section 2.36). Thirdly, it follows from Article 1 ECHR that human rights must be protected effectively and actively (see sections 2.37 and 2.38) and that such protection must be provided primarily at national level (see section 2.39). Finally, it is important that the ECHR requires a minimum level of protection and therefore does not oppose additional protection at national level (see section 2.40 below). 2.35 Individual legal protection Human rights are originally intended as an instrument to protect individuals from government interference. Although national law also attributes ‘horizontal effect’ to human rights, the legal protection offered by the ECHR is still dominated by ‘a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’. This emphasis on individual legal protection is also expressed in Article 34 ECHR, which only grants a right of complaint to individuals and organisations who themselves are a victim of a human rights violation. An ‘actio popularis’ to promote human rights in general is therefore, in principle, not possible under the ECHR. However, this limitation is not absolute: as will be shown below, the ECHR also offers ‘general protection to society’ in certain situations (see section 2.59 below) and the ECtHR has stretched the victim requirement in appropriate cases in order to ensure effective legal protection (see sections 2.58 and 2.62 below). 2.36 Territorial legal protection According to the ECtHR, the concept of jurisdiction in Article 1 ECHR must principally be interpreted in a territorial sense. The point is whether the victim is on the territory of the Contracting State. Exceptions to this territoriality principle have also been accepted by the ECtHR in the context of extraterritorial activities of a State, such as violations of human rights by diplomats or military personnel in respect of victims outside the territory of the State. Whether cross-border environmental damage also falls within the scope of this exception has not yet been decided in the ECtHR case law. The existing ECtHR case law does seem to offer bases for this, as does the case law of other human rights courts. 2.37 Principle of effective interpretation According to established case law, the provisions of the ECHR must be interpreted and applied in such a way that the rights guaranteed therein are practical and effective. This follows from ‘the object and purpose of the Convention as an instrument for the protection of individual human beings’, according to the ECtHR. This is in line with the interpretation standard of Article 31

(1)of the Vienna Convention on the Law of Treaties. Application of the principle of effective interpretation referred to here generally leads to an extensive interpretation of the ECHR. The stretching of the ‘victim’ requirement is an example of this. 2.38 Positive obligations The

Articles 2 and 8 ECHR to be discussed below can also be regarded as an application of the principle of effective interpretation. The idea is that effective protection of human rights not only requires the government to refrain from violating these rights, but under certain circumstances also requires it to make an active effort to prevent human rights from being compromised by third parties or external factors (such as natural disasters). This means that a violation of positive obligations often involves multiple causality, in the sense that the human rights violation is caused by a combination of factors, including negligence on the part of the government. In this respect, the positive obligations do not require an absolute guarantee against human rights violations (see section 2.53 below in this context). 2.39 Principle of subsidiarity The ECtHR deduces from Article 1 ECHR that the protection of ECHR rights must be offered primarily by the national authorities, including national courts. The ECtHR has assigned itself a subsidiary role in this respect. The principle of subsidiarity referred to here also forms the backdrop for the margin of appreciation doctrine to be discussed below, which the ECtHR uses to grant national authorities a margin of appreciation in appropriate cases. While this may evoke associations with the constitutional principle of the separation of powers, the principle of subsidiarity is not dominated by judicial restraint. On the contrary: the ECtHR requires national courts to assess human rights claims ‘with particular rigour and care’, ‘as a corollary of the principle of subsidiarity’. The margin of appreciation doctrine therefore cannot serve – or at most only serve by analogy – as a basis for a cautious approach on the part of the national court in human rights issues (see section 2.69 below). 2.40 Minimum protection Article 53 ECHR provides that the Convention is without prejudice to the protection of human rights under national laws and/or treaties. In other words, the ECHR requires a minimum level of protection and leaves Contracting Parties free to provide additional protection. Comparative law research from 2014 has shown that national courts generally seek alignment with the minimum level of protection required by the ECtHR. As far as the assessment of laws in a formal sense on the basis of the ECHR is concerned, the Dutch court is not allowed to offer additional protection: ‘Pursuant to Article 93 of the Dutch Constitution, the Dutch court must apply the provisions of the ECHR that are binding on all persons. This means that it is also obliged to interpret those provisions, it being understood, however, that the division of tasks between the national court and the ECtHR means that the national court, in its interpretation of the provisions of the ECHR, must comply with the established case law of the ECtHR. It is true that Article 53 ECHR leaves the Contracting States free to offer more far-reaching protection than ensues from the provisions of the ECHR, but Articles 94 and 120 of the Dutch Constitution imply that the Dutch court may only dis-apply enacted legislation or provisions thereof if that legislation is incompatible with provisions of treaties and resolutions of international organisations that are binding on all persons. In view of what has just been considered, however, such incompatibility cannot be assumed on the basis of an interpretation by the national – Dutch – court of the concept of property in Article 1 FP that deviates from the established case law of the ECtHR with regard to that treaty provision.'

Article 2ECHR 2.41 The following is a brief inventory of the ECt

HR case law relevant to this case concerning

Articles 2 and 8 ECHR. For the sake of brevity, reference is made to the case law reports drawn up by the Directorate of the Jurisconsult of the ECtHR, in which the relevant case law is presented more extensively, also indicating the corresponding sources. 2.42 Article 2 ECHR protects the right to life. This Article not only prohibits the intentional deprivation of life, but also stipulates the positive obligation to take measures to protect the right to life. Article 2 ECHR also applies to life-threatening situations. The positive obligation to protect against the danger to life is twofold. It covers on the one hand the obligation to provide an adequate legal framework (see the first sentence of Article 2 ECHR) and, on the other hand, the obligation to take actual precautionary measures. This positive obligation applies to inter alia dangerous industrial activities, regardless of whether these have been carried out by public or private operators, and in the context of natural disasters. According to established case law, Article 2 ECHR does not offer an absolute guarantee against every conceivable danger. 2.43 The ECtHR has developed an assessment framework for cases where individuals are threatened by violent behaviour by others, such as dangerous criminals and psychiatric patients. In such cases, there is a positive obligation under Article 2 ECHR to protect the person or persons at risk. According to established case law, this obligation, also known as the Osman obligation, must not impose an 'impossible or disproportionate burden' on the national authorities. That is why the ECtHR attaches to this the condition that the authorities 'knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk'. The ECtHR also accepted the Osman obligation in cases where the potential victims could not be identified in advance, for example in the case of random victims of violent persons. In this specific context, according to the ECtHR, Article 2 ECHR offers general protection to society. 2.44 With a focus on activities that are dangerous, or dangerous to the environment, Article 2 ECHR primarily requires the Contracting States of the Treaty to provide for 'a legislative and administrative framework designed to provide effective deterrence against threats to the right to life'. As regards the choice of measures to reduce the danger, the authorities of the Contracting States have been afforded a 'margin of appreciation'. Again, the measures should not create an 'impossible or disproportionate burden' for the national authorities. This is even more true in 'difficult social and technical spheres' in which the ECtHR awards a 'wide margin of appreciation' to Contracting States. In the assessment of measures taken by a Contracting States, significance is attributed to, among other things, 'domestic legality', the 'domestic decision-making process' and the underlying facts, the 'complexity of the issue', 'the origin of the threat', and the extent to which the danger is susceptible to 'mitigation'. When undertaking or authorising dangerous activities, the State in question must ensure that risks are limited to 'a reasonable minimum'. 2.45 The ECtHR has on several occasions accepted a violation of Article 2 ECHR with regard to a natural or environmental disaster. This concerned, for instance, a gas explosion at a rubbish tip, a mudslide caused by natural disaster, a flood caused by poor water management, and exposure to asbestos at a shipyard.

Article 8

ECHR 2.46 Article 8 ECHR protects the right to respect for private and family life. It offers comprehensive protection, which in part builds on from Article 2 ECHR. Where Article 2 ECHR does not apply (e.g. in situations that affect the quality of life but are not life-threatening), it is sometimes possible to fall back on Article 8 ECHR. 2.47 Article 8 ECHR also applies to environmental issues, among other things. Although the ECHR does not involve the right to protection of the living environment in general, where environmental pollution has direct consequences for the right to respect for private and family life (in particular the home) and is sufficiently serious. Article 8 ECHR can be applied without requiring that the health of the complainant be threatened. Socially acceptable forms of nuisance (such as 'environmental hazards inherent to life in every modern city') are not within the scope of protection offered by Article 8 ECHR. 2.48 Article 8 ECHR requires in environmental matters that States take 'reasonable and appropriate measures' to protect individuals from 'serious damage to their environment'. States have an 'extensive margin of appreciation' in this regard. The ECtHR assesses whether a 'fair balance' has been struck between the interests at stake. The ECtHR also understands this to include economic interests. 2.49 In several cases of (serious) environmental damage, the ECtHR has ruled that Article 8 ECHR had been violated. Examples of this include cases concerning environmental pollution and nuisance from a waste treatment plant, environmental nuisance and health risks from a gold mine, severe noise pollution from catering establishments, air pollution and health risks from a steel plant, nuisance and health damage due to traffic measures, environmental pollution from a coal mine, safety risks caused by stray dogs, environmental nuisance due to a waste crisis, groundwater contamination from an illegal cemetery, and environmental pollution from a power station. Human rights as a basis for climate commitments? 2.50 The case law of the ECtHR on positive obligations under Articles 2 and 8 ECHR, which was discussed a moment ago, is casuistic. Much of the case law concerns fairly clear cases in which, although possibly involving many victims, the danger or environmental damage can be traced back to a certain activity at a certain location (a rubbish tip, a steel plant, a power plant, et cetera). Some cases concern larger-scale activities, involving more actors and more divergent interests (hospitality industry policy, traffic measures, stray dogs, waste policy). Even in the more small-scale cases, general/more general interests and policy themes sometimes play a role in the background (spatial planning, water management, environmental policy, disaster management). 2.51 Some authors have argued that Articles 2 and 8 ECHR are not suitable for application to the danger of climate change. In their opinion, particularly problematic is the fact that climate change does no threaten a specific group of potential victims that can be demarcated; it potentially threatens the world's entire population. Moreover, climate change is not caused by one single country or one single source of emissions, but the result of the conduct of many countries and many sources of emissions all over the world. This means that climate change transcends the balancing of general and individual interests that is characteristic for human rights (cf. para. 2.35 above). Combating the danger of climate change requires an assessment of conflicting general interests and, according to these authors, that is not what human rights are intended for. Other authors consider the human rights approach of the Court of Appeal to be pre-eminently suitable for the assessment of this case. 2.52 The question of whether human rights protect not only people as individuals but also humanity as a whole does not need to be answered in these cassation proceedings. This case concerns the question of whether the ECtHR case law on positive obligations under Articles 2 and 8 ECHR offers starting points for assuming an obligation on the State to reduce, or ensure the reduction of, the emission of greenhouse gases from the Dutch territory by 25% by the end of 2020 as compared to the emissions in

In the following paragraphs, four main lines from the ECtHR case law will be discussed, which could provide starting points – taking into account the climatological insights, objectives of international climate policy and standards and principles of international law referred to by the District Court and Court of Appeal – for the assumption of such an obligation. First main line: preventive legal protection under Articles 2 and 8 ECHR 2.53 The positive obligations that the ECtHR has derived from Articles 2 and 8 ECHR are of a preventive nature. In the L.C.B./United Kingdom judgment, a precursor to the aforementioned Osman judgment, the ECtHR already considered that it comes down to whether the government has done what could be expected of it 'to prevent the applicant’s life from being avoidably put at risk'. This preventive nature is inherent to the concept of positive obligations as such: they are intended to ensure that the government makes an effort to prevent human rights from being compromised by third parties or external factors. It is important to note that this is not an obligation of result: the fact that a person dies does not necessarily imply a violation of the right to life. In the words of Gerards, positive obligations are characterised by the fact that they ‘help to ensure the effective enjoyment’ of the human right in question. This is without prejudice to the fact that the ECtHR often places high demands on the efforts to be made by the government and that such demands may involve the need to ensure a certain minimum level of protection (see paras. 2.63 et seq. below). 2.54 The question is therefore not whether Articles 2 and 8 ECHR protect against future dangers – which they do – but how far this preventive protection goes. According to the ECtHR, the aforementioned Osman obligation to protect those at risk – which is also applied, by analogy, to environmental disasters and dangerous situations – applies if the government is aware of a 'real and immediate risk' for persons. In the literature, questions have been raised with regard to the second element of this criterion: the requirement of immediacy. Referring to various ECtHR judgments, Sanderink argues that this requirement has hardly any added value, because it mainly concerns the reality of the risk. Gijselaar and De Jong conclude from the ECtHR case law that the point is whether the risk is avoidable: if not, there is an 'immediate risk', even though it will only materialise in the longer term. Emaus argues in a more general sense that the ECtHR case law is governed by a 'precautionary principle'. 2.55 The Taşkin and others/Turkey judgment offers support for this playing down of the requirement of immediacy. In that case, the complainants claimed a violation of Article 8 ECHR on account of environmental risks associated with the use of cyanide in the operation of a gold mine. The Turkish government defended itself by arguing that these risks were 'hypothetical' because they could only emerge in 20 to 50 years. The ECtHR dismissed this defence by ruling that the risks had been identified in several environmental reports. The risks were therefore sufficiently closely linked to the right to private and family life of those living in the vicinity of the gold mine, as protected by Article 8 ECHR. The ECtHR continued: 'If this were not the case, the positive obligation on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 would be set at naught.' 2.56 This finding confirms the preventive nature of the positive obligations. More specifically, it shows that a violation of these obligations does not merely emerge when the risk is almost materialising (the proverbial ‘point of no return’). Risks threatening to occur in the long term, in this case a term of several decades, may also force the government to take preventive measures. The applicability of Articles 2 and 8 ECHR therefore does not require an 'acute' or 'immediate' danger. 2.57 Even if there is scientific uncertainty about the exact nature of the extent of risks that will or may materialise only over a longer period of time, this does not automatically relieve the government of its obligation to take precautionary measures. This is clear from the Tătar/Romania judgment, in which the ECtHR held that the continued operation of a gold mine was in violation of Article 8 ECHR, in connection with potential health risks for people living nearby, which risks had not been conclusively proven. The ECtHR referred in this context to the precautionary principle ('le principe de précaution'), which has been accepted in international environmental law (see para. 2.74). This also shows that in the context of positive obligations, the ECtHR does not require imminent damage and a causal link, nor require irrefutable proof of such: a real risk being caused by the government’s actions is sufficient. 2.58 Preventive enforcement of human rights can be problematic from a procedural point of view, as far as the procedure before the ECtHR is concerned. After all, on the basis of Article 34 ECHR, complaints can only be submitted by persons who demonstrably qualify as victims. However, the ECtHR has stretched the victim requirement in favour of 'potential victims' and 'inevitable victims'. While it is true that the mere risk of a future human rights violation is insufficient to establish standing for a complaint to the ECtHR, if the government has taken specific steps or rendered decisions that could lead to the alleged human rights violation, such as in the case of an intended deportation or extradition in violation of the ECHR, complaints about this can be brought in Strasbourg. Even if an alleged violation of human rights is not yet an issue but is inevitable in the long run, such as in the event of rules relating to taxes or inheritances that will only be applied in the event of a person’s death, standing has been accepted with complaints about this. In this way, the preventive protective scope of the ECHR is also guaranteed from a procedural point of view. Second main line: general legal protection under Articles 2 and 8 ECHR 2.59 In section 2.43, it was shown that States are obliged under Article 2 ECHR to take measures to protect persons at risk. This Osman obligation is not only intended to protect specific persons who are known in advance to be at risk, but also, in certain cases, to provide 'general protection to society' ('une protection générale de la société'). This is obvious, as the threat emanating from violent persons can affect random victims who cannot be individualised in advance. The nature of the danger calls for a wider scope of application in such cases. 2.60 The positive obligations under Article 8 ECHR have also been assigned a general scope of protection. For example, the ECtHR held in Di Sarno and others/Italy and Cordella and others/Italy that the environmental damage in question (a waste crisis and environmental pollution caused by a steel plant, respectively) affected the entire population of the region ('l’ensemble de la population'). In both cases, the ECtHR ruled that Article 8 ECHR had been violated. Another illustrative example is the Stoicescu/Romania judgment, in which a violation was ruled to have been committed in connection with the fact that the complainant had been attacked by stray dogs. The Romanian authorities had long been aware of the danger posed by stray dogs - which had developed into 'a public health and safety issue’ - but had done nothing to curb it. The circumstance that the stray dogs obviously did not specifically target the complainant, and the authorities therefore could not foresee that and in what way she would become a victim of such an attack, did not prevent the ECtHR from assuming a violation of Article 8 ECHR. Van de Westelaken argues that the requirement that the potential victims must be identifiable, as laid down in the Osman judgment, has thus been abandoned. 2.61 In the event of dangers and environmental damage that threaten the whole region or society as a whole, Articles 2 and 8 ECHR proportionally offer protection to the whole region or society as a whole. This is in line with the principle of effective interpretation (see para. 2.37 above): in this category of ‘untargeted’ dangers and environmental damage, setting the requirement that potential victims must be identifiable would undermine the protection offered by Articles 2 and 8 ECHR. 2.62 In procedural terms, as well, the ECHR offers scope for general legal protection where necessary to safeguard the effectiveness of the human rights concerned. An example of this is the ECtHR case law on ‘secret surveillance’. According to this case law, the mere existence of national legislation allowing secret surveillance is sufficient to establish standing for a complaint based on Article 8 ECHR from persons subject to that legislation, regardless of whether they actually are or have been exposed to secret surveillance. This expansion of the victim requirement enables an abstract assessment of surveillance legislation in the light of Article 8 ECHR. The rationale underlying is, again, the principle of effective interpretation: precisely because citizens cannot know whether they are subject to secret surveillance, Article 34 ECHR cannot be applied in full. Otherwise, the protection offered by Article 8 ECHR would be rendered illusory. Third main line: assessment of safety and environmental policy under Articles 2 and 8 ECHR 2.63 A third main line concerns the margin of appreciation that is afforded to governments, according to the ECtHR, in choosing measures to implement their positive obligations. The ECtHR also applies this margin of appreciation in the context of dangerous activities and environmental damage, but this does not prevent the ECtHR from making an in-depth assessment of the policy choices made by governments. The minimum in this regard is that the measures taken by governments must be appropriate with a view to reducing the danger or the environmental damage in question. More specifically, this means that the measures must be taken in good time and must – at least potentially – be effective; see also sections 4.216-4.217 below. 2.64 An illustrative example is the Öneryildiz judgment, which involved a gas explosion at a Turkish rubbish tip. The Turkish authorities, who had been aware of the risk of explosion for many years but had done nothing to protect the inhabitants of a nearby slum, argued that the resettlement of those inhabitants was a large-scale and costly operation and that humanitarian considerations prevented an immediate evacuation of the slum. The ECtHR rejected those arguments and ruled that Article 2 ECHR had been violated. The ECtHR indicated exactly what measures the Turkish government should have taken and how it should have weighed the interests involved: '
The Court acknowledges that it is not its task to substitute for the views of the local authorities its own view of the best policy to adopt in dealing with the social, economic and urban problems in this part of Istanbul. (…). However, even when seen from this perspective, the Court does not find the Government’s arguments convincing. The preventive measures required by the positive obligation in question fall precisely within the powers conferred on the authorities and may reasonably be regarded as a suitable means of averting the risk brought to their attention. The Court considers that the timely installation of a gas-extraction system at the Ümraniye tip before the situation became fatal could have been an effective measure without diverting the State’s resources to an excessive degree in breach of Article 65 of the Turkish Constitution (see paragraph 52 above) or giving rise to policy problems to the extent alleged by the Government. Such a measure would not only have complied with Turkish regulations and general practice in the area (…), but would also have been a much better reflection of the humanitarian considerations the Government relied on before the Court.' The inhabitants of the slum also invoked violation of their right to property, as protected by Article 1 of the First Protocol to the ECHR. The Turkish government countered this by arguing that the construction of the slum was illegal and that spatial planning was subject to its discretion. The ECtHR rejected that argument as well. In this context, the ECtHR considered that the discretion of national governments 'in no way dispenses them from their duty to act in good time, in an appropriate and, above all, consistent manner'. 2.65 The fact that the ECtHR can, if necessary, also make an in-depth assessment of the timing of precautionary measures is evident from the Budayeva and others/Russia judgment, concerning a mudslide caused by poor water management. The Russian government argued in its defence that the timing and severity of the mudslides could not be accurately predicted. The ECtHR ignored this because the government had not explained which measures it had taken to protect the inhabitants of the at-risk area. The ECtHR ruled that Article 2 ECHR had been violated and endorsed the complainants’ view that 'implementing safety measures could have, and should have, taken place earlier'. In his accompanying annotation, Janssen concluded that the ECtHR performs an in-depth assessment of the evidence submitted by governments, and that reliance on the margin of appreciation has no chance of success if the government has no explanation for its failure to act adequately. 2.66 In the context of Article 8

(2)ECHR, as well, which generally affords the national authorities a greater margin of discretion or appreciation than Article 2 ECHR, the ECtHR can go a long way in assessing the policy choices made. The Fadeyeva/Russia judgment on air pollution and health risks caused by a steel plant is a case in point. In para. 68, the ECtHR stated first and foremost: 'Article 8 has been invoked in various cases involving environmental concern, yet it is not violated every time that environmental deterioration occurs: no right to nature preservation is as such included among the rights and freedoms guaranteed by the Convention (see Kyrtatos v. Greece, no. 41666/98, ECHR 2003-VI, par. 52). Thus, in order to raise an issue under Article 8, the interference must directly affect the applicant’s home, family or private life.' The Russian government defended itself by arguing that air pollution had been significantly reduced over a period of twenty years and that further reduction was a long-term process. The ECtHR rejected that argument and ruled that Article 8 ECHR had been violated. In that context, the ECtHR noted that previous reduction plans 'did not achieve the expected results' and that the 'deadline for bringing the plant’s emissions below dangerous levels' had been extended repeatedly. The ECtHR did not consider it sufficient that 'significant progress' had been made compared to the distant past. According to the ECtHR, progress in recent years had been 'very slow', noting that 'in certain years pollution levels increased rather than decreased'. The ECtHR recognised that the environmental problem could not be solved in a short period of time. Against this backdrop, it formulated the following assessment framework: 'Indeed, it is not the Court’s task to determine what exactly should have been done in the present situation to reduce pollution in a more efficient way. However, it is certainly in the Court’s jurisdiction to assess whether the Government approached the problem with due diligence and gave consideration to all the competing interests. In this respect the Court reiterates that the onus is on the State to justify, using detailed and rigorous data, a situation in which certain individuals bear a heavy burden on behalf of the rest of the community.' In this case, the ECtHR considered that the Russian government did not succeed in providing evidence of 'due diligence', in particular because it had not clarified the precise nature of the reduction policy in respect of the steel plant. 2.67 The due diligence criterion from the Fadeyeva/Russia judgment was repeated in the 2017 Jugheli and others/Georgia judgment and the 2019 Cordella and others/Italy judgment. Both of these judgments concerned environmental pollution (by a power plant and steel plant, respectively) and in both judgments it was concluded on the basis of a careful and in-depth assessment of the governments’ considerations that the environmental policy pursued did not meet the due diligence requirement ('diligence voulue'). 2.68 The margin of appreciation that is afforded to governments, according to the ECtHR, in environmental matters is therefore certainly not unlimited and absolute. An important point of view for the ECtHR seems to be whether the environmental policy pursued is consistent, properly substantiated and in line with national laws and regulations. In the literature, this is also referred to as the 'rule of law' criterion. If the government violates national rules or is unable to justify its own policy, the ECtHR will adopt a stricter stance. In such cases, there seems to be a smaller margin of appreciation. An illustrative example is the Dubetska and others/Ukraine judgment, concerning environmental pollution from a coal mine. The ECtHR found that the government’s policy towards the coal mine was characterised by 'numerous delays and inconsistent enforcement'. In spite of the 'wide margin of appreciation' that the ECtHR afforded in principle to the government in this case, the ECtHR ruled that Article 8 ECHR had been violated because the coal mine violated national rules and the government had done nothing to protect people living nearby from the pollution. 2.69 With regard to the above, it must be borne in mind that the margin of appreciation arises from the principle of subsidiarity enshrined in Article 1 ECHR. This principle entails that the protection offered by the ECHR must be realised primarily by the national authorities (including the national courts). The ECtHR does not act as a ‘fourth instance’, as if it were the country’s highest judiciary: it assesses complaints about violations of the treaty. The ECtHR has considered the following on this matter: 'The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of the State at the domestic level.' For this reason, national courts are not required to exercise restraint in those areas where the ECtHR affords the national authorities a margin of appreciation. In the literature, the opposite is argued: where the ECtHR exercises restraint on account of the principle of subsidiarity, the national courts must perform a more in-depth assessment. The Fabris/France judgment supports this approach. Incidentally, it cannot be inferred from this that the Fabris/France judgment encourages an extensive substantive interpretation of the ECHR. The foregoing is also without prejudice to the possible existence of other reasons for restraint on the part of the court (e.g. on the basis of the national relationships between the state powers, to be discussed in Chapter 5 below). The concept of a margin of appreciation takes on a different meaning in that case, in which the focus is no longer on the relationship between the ECtHR and the national court. Application by the national court raises the question of what margin of discretion or appreciation the national court affords the authorities in its own country. It already follows from the text of the treaty that generally speaking, this margin is more limited with regard to the right protected in Article 2 ECHR than with regard to the rights protected in Article 8 ECHR. Fourth main line: the ECtHR’s common ground method 2.70 The last main line that deserves to be mentioned concerns the way in which the ECtHR interprets human rights in areas where the ECHR does not provide a definitive answer to the precise content of the obligations incumbent on the Contracting States. The ECtHR considers the ECHR to be 'a living instrument which (...) must be interpreted in the light of present-day conditions'. In connection with this, the Court applies the 'common ground' or 'consensus' method when answering new questions of law. This method of determining the law entails that the ECtHR seeks to tie in with views that are widely shared in the Contracting States and in an international context. In this context, in addition to the national case law in the Contracting States, the ECtHR can also consider non-ratified treaties and ‘soft law’ in its assessment; the concept of ‘soft law’ has already been discussed in sections 2.31 et seq. above. 2.71 In the Demir and Baykara/Turkey judgment, the ECtHR described the common ground method as follows: '85.The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases. 86.In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (…).' It is already clear from this description that in order to find common ground, full consensus between the Contracting States is not required. For example, in 2002 the ECtHR accepted a right to recognition of gender reassignment despite 'the lack of a common European approach' towards the subject matter. The ECtHR referred to 'the clear and uncontested evidence of a continuing international trend’. 2.72 The common ground method is somewhat comparable to the reflex effect that national courts, in implementing open standards into national law, can attribute to treaty provisions and ‘soft law’ that have no direct effect. This explains why the Court of Appeal in its contested judgment reached the same conclusion on the basis of Articles 2 and 8 ECHR as the District Court did on the basis of Article 6:162 DCC: for the concrete implementation of the reduction obligation, the District Court and the Court of Appeal sought to draw on the same climatological insights, objectives of international climate policy and principles of international law. 2.73 The ECtHR case law so far does not provide a definitive answer to the question of whether and, if so, precisely which positive obligations arise from Articles 2 and 8 ECHR with regard to climate change. This does not mean that the national court should refrain from rendering an opinion on the matter. The following may be relevant in this context. The common ground method and international environmental law 2.74 International environmental law is a specific part of international law that is governed by its own rules and principles. Particularly important in this case are the ‘no harm rule’, which means that a State may not use or allow the use of its own territory for activities that harm other States, and the ‘precautionary principle’, according to which a lack of scientific certainty should not be a reason to postpone effective and proportionate measures to prevent serious and irreversible damage, to the environment. Following the example of the District Court, the Court of Appeal based its opinion in part on these rules and principles of environmental law. 2.75 Focusing on climate change issues, relevant is the fact that Article 2 UNFCCC requires States to reduce greenhouse gas emissions within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. The principles formulated in Article 3 UNFCCC (i.e. the principles of equity, precaution and sustainability) referred to by the Court of Appeal in para. 7 are particularly important in this context. 2.76 Of particular importance is the principle of equity, which means, among other things, that Contracting States must take action against climate change in accordance with their 'common but differentiated responsibilities and respective capabilities'. More specifically, it emerges from this principle that the countries considered to be industrially developed co

🔗 Naar officiële bron

AI-uitleg op basis van de officiële wettekst. Indicatief, vervangt geen juridisch advies.

ECLI:NL:PHR:2019:1026

PROCURATOR GENERAL OF THE SUPREME COURT OF THE NETHERLANDS Number 19/00135 Session 13 September 2019 CONCLUSION F.F. Langemeijer and M.H. Wissink In the matter between The State of the Netherlands (Mi

Article 2

Article 8ECHR (2.46) - Human rights as a basis for climate commitments?

Article 2ECHR 2.41 The following is a brief inventory of the ECt

Article 8