The Urgenda Case
And its impact on the European Court of Human Rights
Karlijn Mertens karlijn.mertens@hotmail.nl
10588558
Public International Law Antoinette Hildering
ABSTRACT
The consequences of dangerous climate change are slowly revealing all around the world. Climate science has proven that humans are the main cause of this problem. The initiation of the industrial revolution, when more and more greenhouse gas emissions were released into the atmosphere, can be seen as one of the most important events resulting in the change of the climate. However, not one solitary State in the world releases enough emissions to be
individually held responsible for causing climate change. The actual cause is formed by the cumulative emissions of all States combined. This makes climate change the responsibility of all States. Therefore, even small States whose emissions - compared to the emissions of larger States - can be seen as negligible, are responsible. The increasing amount of research that has been conducted on the subject has led to an international consensus about the dangerous risks of climate change. As a result, on a national level, people started to appear before national courts with climate change claims against their governments. One of these national cases is
Urgenda v. The State of the Netherlands, which was the first climate change case ever where
the court held that the State exercised an inadequate climate policy. The judgment was based on international human rights law and primarily on the European Convention on Human Rights.
Climate change is a threat to the enjoyment of fundamental human rights such as the right to life and the right to family life. Although the Convention does not contain an explicit right to a healthy environment, the case law of the European Court of Human Rights has developed over time to include the protection of the environment into the ambit of the Convention. However, the Court has never adjudicated a climate change claim against a government. This thesis aims to serve as a starting point in the discussion whether the Court is able to adjudicate such a case. Therefore, both the Urgenda case and the approach and case law of the Court will be compared to determine if Urgenda could have an impact on the Court. The Court shows a progressive approach in its case law towards recognising the environment within the scope of the Convention. The Court shows a progressive approach towards adjudicating a climate change case such as Urgenda in the future. This approach is based on the ‘living instrument’ interpretation. One of the most important reasons this approach can be seen as leading, is because the Convention is based on the aim to protect human rights. Also, another important feature of the approach is the development of the Court regarding environmental issues and its recognition of other international and national law.
TABLE OF CONTENTS
Introduction ... 4
2. Urgenda v. the Netherlands ... 6
2.1. Interpretation ... 7
2.2. Causality ... 9
2.3. Admissibility ... 10
2.4. Separation of powers ... 11
2.5. Conclusion ... 11
3. The European Court of Human Rights’ approach to environmental harm ... 12
3.1 Interpretation method of the ECtHR ... 12
3.2 Territorial liability ... 14
3.2.1 Public interest argumentation ... 15
3.2.2 Test of awareness ... 16
3.2.4 Burden of proof ... 17
3.3 Causality ... 18
3.4 Admissibility ... 19
3.5 Subsidiarity ... 20
4. Relationship between human rights and the protection of the environment ... 21
4.1 Right to a healthy environment? ... 21
4.2 Environmental protection on the basis of positive obligations ... 22
Introduction
In the last decade, people have slowly seen and experienced the effects of climate change. The Nederlandse Omroep Stichting (NOS), for example, reported that tropical temperatures were measured inside the arctic circle, in Siberia to be exact.1 The increase in temperature has severe consequences such as floods, droughts and fires. People who live in these affected areas will be forced to move, which will lead to migration to the hinterland. This will affect the enjoyment of their human rights such as health, culture, housing and especially their right to life and family life. As a result, the dangerous consequences of climate change have gained increased political attention. On the national level, governments are creating climate policies to mitigate climate change. Equally, on the international level, States are committing to curb the dangerous consequences of climate change through environmental agreements and treaties.
Globally there has been a consensus about the cause of climate change, namely: climate change is mainly caused by humans. This was demonstrated by several reports, like the assessment reports of the Intergovernmental Panel on Climate Change (IPCC). These reports show the problematic effect of the increasing temperature. It is shown that if the earth warms up by more than 2ºC compared to pre-industrial times, this would affect, amongst others things, water resources, food production, biodiversity, and human health.2 In addition, the IPCC found that there is a higher than 90 percent chance that global warming can contribute to greenhouse gas emissions (GHG) from industry, transport, deforestation and other human activities.3 Besides the IPCC, the Global Humanitarian Forum also stated that climate change already caused 300.000 deaths per year globally and seriously impacted the lives of an
estimated 325 million people.4 Also according to the majority of scientists, the danger of man-made climate change poses a threat to the quality of life for mankind.5 There is a direct
1H. Ekker, '38 graden in Siberië: hoogste temperatuur ooit gemeten binnen poolcirkel' (NOS, 23 June 2020
)<https://nos.nl/artikel/2338258-38-graden-in-siberie-hoogste-temperatuur-ooit-gemeten-binnen-poolcirkel.html> accessed 28 June 2020.
2 C.B. Field and others, ‘Summary for Policymakers’ in Christopher B Field and others (eds) Climate Change 2014: Impacts,
Adaptation, and Vulnerability: Volume 1, Global and Sectoral Aspects (Working Group II Contribution to the IPCC Fifth Assessment Report) (CUP, Cambridge 2014) 1 at 4-7.
3 IPCC, Fourth Assessment Report, 2007, available at
http://www.ipcc.ch/publications_and_data/publications_and_data_reports.htm#1.
4 Global Humanitarian Forum, Human Impact Report: Climate Change – The Anatomy of a Silent Crisis, May 2009,
available at http://www.preventionweb.net/files/9668_humanimpactreport1.pdf.
5 University Fellows, 'Fact Checking The Claim Of 97% Consensus On Anthropogenic Climate Change' (Forbes, 2020)
<https://www.forbes.com/sites/uhenergy/2016/12/14/fact-checking-the-97-consensus-on-anthropogenic-climate-change/> accessed 3 April 2020.
connection between the greenhouse gas emissions caused by humans - through burning fossil fuels - and the warming of the planet. Since the industrial revolution, the global temperature has already increased by 1.1 ºC.6 The rise of global warming can therefore be prevented by the reduction of greenhouse gas emissions.
Over the years, academic scholars have advocated for a greater recognition of the way the changing environment influences the enjoyment of human rights and have sought to use human rights to call for stronger international action. This has resulted in people from all over the world filing a lawsuit against their governments for doing too little to prevent climate change. In 2018, Greenpeace Germany filed a lawsuit together with three German families, against the government, arguing that its failure to comply with the 40% reduction target by 2020 violates the right to life and health, property, and occupational freedom under the Constitution and the European Convention on Human Rights (ECHR).7 Similarly, in the United States of America, a young group of plaintiffs are currently claiming that the federal government is violating their constitutional rights by being responsible for dangerous GHG emissions.8 Concerning these cases, there is one case where the highest court decided that the State is indeed responsible for an inadequate climate policy. This is the Urgenda v. The
Netherlands case and can be seen as an inspiration for other climate change cases. This case
illustrates how the judiciary can help to promote climate change. What is remarkable about this case is that the Court of Appeal and the Supreme Court both based its judgments on international law and primarily on the European Convention on Human Rights. The Convention was obviously not created with an environmental right in mind, but over the
years, it has been developed by The European Court of Human Rights (ECtHR) in Strasbourg.
Given the fact that the impact of climate change will increase even more over time, it needs to be taken into account that it is only a matter of time until people will try to adjudicate climate change cases against the government, internationally. Since most of the climate change cases are based on the violation of human rights as protected in the Convention, it would be likely that the ECtHR will have to adjudicate over comparable cases in the future. Therefore, this thesis will discuss the impact of the Urgenda case on the European Court of Human Rights.
6 World Meteorological Organization, The Global Climate in 2015-2019 [2019], p. 5. 7 Family Farmers and Greenpeace Germany v. Germany, VG10K412.18, 31 October 2019. 8 Juliana v. The United States, No.18-36082, D.C. No. 6:15-cv-01517-AA.
Because climate change is a global problem, it would be more effective to solve this
internationally. When the ECtHR would decide on a climate change case, this would establish a global precedent that influences all the member states of the Convention or at least it would have a much bigger impact than a national case. Since the Dutch Courts based their
judgement on the ECHR, the ECtHR will possibly be able to follow the interpretation methods and justify its critics in the same way.
Therefore, this thesis will compare the Urgenda case with the legal principles and the case law of the ECtHR. Furthermore, this thesis will use literature to discuss the approach of the Court towards the assessment of environmental issues. The first chapter will discuss the
Urgenda case closely. The second chapter will discuss the approach of the Court to
environmental harm. Lastly, the case law of the Court will be examined extensively. The case law reveals which human rights obligations States have, regarding environmental protection and to what extent they are obliged to prevent the dangerous effects of climate change. In this chapter the case law will be compared with the Urgenda case to show the similarities and differences. This aimes to emphasize the degree of impact of the Urgenda case on the Court, which could be useful for future climate change cases against governments.
2. Urgenda v. the Netherlands
The Urgenda case is the first case in the world where the government is held responsible for doing too little to prevent dangerous climate change. The judgment is based on the positive obligation States have to protect their citizens. Despite the fact that this obligation is an obligation of conduct, the Supreme Court in the Netherlands concluded that there has been a violation and ordered the government to reduce its GHG emissions by a minimum of 25% before 2020. Before discussing the specific details of the case, some general information will be provided.
In 2012, the foundation ‘Urgenda’ (urgent agenda) filed a claim on behalf of the residents of the Netherlands, against the Dutch Government. They stated that the State is doing too little to prevent dangerous climate change.9 The GHG emissions from the Netherlands are
contributing to a dangerous change in the climate with an excessive share. Furthermore, Urgenda claims that the State is violating its due care that is part of the State’s duty of care under art. 6:162 Dutch Civil Code (DCC). Moreover, the State is violating article 2 and article
8 ECHR which protects the right to life and the right to respect for private and family life, home and correspondence. Because of this omission by the State, Urgenda requested an order to instruct the State to limit the volume of greenhouse gas emissions in the Netherlands in order to reduce this volume by 40% before the end of the year 2020, or at least by a minimum of 25%, compared to the volume in the year 1990.10 The District Court decided in 2015 in favor of Urgenda and forced the government to change its climate policy in conformity with the 25% reduction target. Subsequently, the District Court based its judgment primarily on national law.
Following the appeal of the State, the Court of Appeal upheld the lower judgment. However, the Court based its judgment primarily on the ECHR, and concluded that the Dutch
Government violated the human rights of the Dutch citizens by its failure to reduce its GHG emissions by 25% before 2020. This target is derived from climate science and several international environmental treaties and agreements.11 The Supreme Court upheld this judgment in 2019, which put an end to years of battling.
2.1. Interpretation
The Dutch Court needed to assess if the articles 2 and 8 ECHR, and the obligations arising from these articles, also apply to the issue of climate change. This is a new topic that has never been assessed by the ECtHR before. The interpretation standard that the Court used was the ‘common ground’ method. This principle follows from Demir and Baykara v. Turkey where the ECtHR decided that: ‘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 (…).”12
According to this method, the Dutch Court needed to take all relevant rules of international law and the application practice of member States into consideration.13 In addition, the ECHR should be interpreted and applied by the Court in a way to make it safeguards practical and
10 Ibid.
11 UNFCCC, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Further Commitments for
Annex I Parties under the Kyoto Protocol at its fifteenth session, p.3 and the UN Paris Agreement 2015.
12 Demir and Baykara v. Turkey (2008) no. 34503/97, par. 86
effective.14 Furthermore the Court needs to take all science insights and general accepted standards into account.15
The Netherlands has both positive and negative obligations in relation to the interests
protected by the two articles. Positive obligations demand States to take concrete measures to prevent future violations of these interests, i.e. a duty of care.16 The Court of Appeal
identified a treaty-law basis for this duty of care in the open standards of Articles 2 and 8 ECHR. Furthermore, a future violation already exists when the interests are in danger of being affected as a result of an act or natural event. Therefore, it is not necessary that the interests have already been affected.17 Regarding the concrete infringement, this needs to exceed the minimum level of severity.
Furthermore, the State also has the duty to take preventive measures to counter the danger, even if the materialization of that danger has not yet happened or is uncertain.18 This is also in line with the precautionary principle.19 There are several definitions of this principle but the first one was adopted at the United Nations (UN) conference on environment and
development in Rio de Janeiro: “Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”20 There are two conditions under which the threshold of this principle can be reached; damage and knowledge. The damage condition concerns harmful outcomes. Examples can be found in the literature, for example in the World Charter for Nature 1982 that speaks of ‘potential adverse effect’.21 The second condition is knowledge. This determines the level of the required scientific understanding of the threat22. An example of this condition: “Even before a causal link has been established by
absolutely clear scientific evidence”.23 According to the Dutch Court, this threshold of the
14 Ibid, par. 5.4.1.
15 Öneryildiz v. Turkey (2004) no. 48939/99, paras. 59, 71, 90 and 93 and Oluić v. Croatia (2010) no. 61260/08, paras.
29-31, 49, 60 and 62.
16 ECLI:NL:GHDHA:2018:2610, Gerechtshof Den Haag, 200.178.245/01, par. 41. 17 Ibid.
18 Öneryildiz v. Turkey (2004) no. 48939/99, para 98-101. 19 Tătar v. Romania (2009) no. 67021/01, par. 120.
20 United Nations Conference on Environment and Development (1992), Principle 15.
21 UN General Assembly, World Charter for Nature., 28 October 1982, A/RES/37/7, Principle 11b.
22 M. Ahteensuu, Rationale for Taking Precautions: Normative Choices and Commitments in the Implementation of the
Precautionary Principle, p. 3.
principle was reached.24 The Supreme Court concluded, while interpreting the ECHR, that climate change constitutes a ‘real and imminent’ risk and it entails the risk that the lives and welfare of the Dutch citizens could be jeopardized seriously.25 The fact that climate change is a global problem caused by multiple States does not take away the fact that States have a duty to take positive and preventative measures. The only way to solve this global problem is on a global level. This view follows from several international and European climate agreements which imposes obligations for Member States to take preventative measures.26 States are not obliged to take positive measures when these measures are impossible or could possibly form a disproportionate burden on the government.27 However, in this case, measures taken by the Dutch Government would not reach this threshold.
2.2. Causality
The responsibility of the Netherlands implies that the conduct of GHG emissions leads to climate change. However, causality plays a limited, but important role when claiming to impose an order (here: the 25% reduction order). Therefore, it suffices that there is a real risk of danger for which obligatory measures need to be taken.28 It does not matter whether it is uncertain that the reduction order is effective and will help to curb climate change. When there is uncertainty about any effect of climate change, governments should be extra cautious. Due to this precautionary principle,29 the Netherlands cannot refrain from taking measures until full scientific certainty.30
This relates to the conclusion of the Court that the Netherlands cannot hide behind the fact that their GHG emissions don’t have a big global impact. Otherwise States could easily escape their responsibility by pointing their finger to other States. This also follows from art. 3 (1) of The United Framework Convention on Climate Change; common but differentiated responsibility. This implicates that the Netherlands is individually responsible for its own
24 ECLI:NL:GHDHA:2018:2610, Gerechtshof Den Haag, 200.178.245/01, par. 63 and ECLI:NL:HR:2019:2007, Hoge Raad,
19/00135, par 5.6.2.
25 ECLI:NL:HR:2019:2007, Hoge Raad, 19/00135, par 5.6.2
26 For example, the UN Framework Convention on Climate Change and the UN Paris Agreement. 27 ECLI:NL:GHDHA:2018:2610, Gerechtshof Den Haag, 200.178.245/01, par. 41.
28 Ibid, par. 64.
29 See heading 2.1 interpretation.
acts. The Supreme Court therefore speaks of partial responsibility. Justification of this partial responsibility can - according to the Court - be found in the ‘no harm’ principle; an
internationally accepted principle which entails that States must not cause each other harm.31 It follows from this principle that every State is accountable for their own share of GHG emissions and can be held responsible individually. This is also in compliance with the Articles on Responsibility of States for Internationally Wrongful Acts.32 Even though the no harm principle applies only between States and not between States and individuals, the District Court in the Netherlands decided that the government nevertheless needs to comply with its international obligations.33
2.3. Admissibility
Contrary to what the District Court considered; the Court of Appeal decided that art. 34 ECHR did not apply as a procedural rule before the Dutch Court. This article concerns the ‘victim’ requirement. According to this article, an individual, a group of people or an NGO must prove that they are a “victim of a violation by one of the High Contracting Parties of the
rights set forth in the Convention or the protocols thereto”.34 This means that the applicant must personally suffer from violation of his or her rights as protected by the Convention. However, the Court of Appeal concluded that this requirement only applies as a procedural rule in proceedings before the ECtHR.35 This means that this article doesn’t apply to Urgenda’s standing before the Dutch Court because this is determined by national law.36 Further analysis of this principle is therefore not necessary and the Court held that the applicants could directly rely on articles of the ECHR. In its final judgement, the Supreme Court upheld this ruling of the lower Court.
31 ECLI:NL:HR:2019:2007, Hoge Raad, 19/00135, par. 5.7.5. 32 Ibid, par. 5.7.6.
33 ECLI:NL:RBDHA:2015:7196, C/09/456689/HA ZA 13-1396, par. 4.43.
34 Convention for the Protection of Human Rights and Fundamental Freedoms, art. 34. 35 ECLI:NL:GHDHA:2018:2610, Gerechtshof Den Haag, 200.178.245/01, par. 34 36 Ibid, par. 36.
2.4. Separation of powers
In response to the judgments of the Dutch Courts, some scholars have suggested that the
Urgenda case can serve as an inspiration or model for other States.37 However, the Dutch government and other scholars expressed criticism of the judgment, based on the principle of the separation of powers. According to them, by forcing the government to change its climate policies in specific ways, the judiciary infringes on the function of the legislative and
executive power. This goes directly against Montesquieu’s purpose of the separation of powers for democratic States.38
All three Dutch Courts have included this issue in their judgment. However, they concluded that there was no violation of the separation of powers. Firstly, the Court held that the Netherlands did not follow a strict separation. It considers that the Netherlands has a more balanced separation between state powers. The Court provides legal protection and settles legal disputes. Therefore, actions of political bodies can be assessed by an independent Court. Through assessment only, the Court does not enter the political domain. Consequently, the claim of Urgenda does not fall outside the scope of the Court’s domain. The claim requires judicial review, and this is exactly what the Court does. It is inherent in the role of the court that sometimes allowing a claim has political consequences. Lastly, the Court held that it does not order the State to take specific legislative measures or adopt certain policy. The Court leaves it up to the State to determine how to comply with the order. The State still has full freedom to decide which measures it is going to take.
2.5. Conclusion
The Dutch Courts in the Urgenda case acted in the activist manner. They have interpreted the environmental (‘green’) case law of the ECtHR in a way that extends these obligations to the issue of climate change. This confirms the view that the judiciary plays a special role in regulating climate risks. In the following chapter, the ECtHR’s approach and interpretation methods to environmental harm will be discussed to see the comparisons and differences with the Dutch Court’s approach.
37 J. Peel and H.M. Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7(1) Transnational Environmental Law,
p. 37–67.
3. The European Court of Human Rights’ approach to environmental harm
To determine what kind of impact Urgenda could have on the ECtHR, it is important to analyze the Court’s approach to environmental harm and its case law.
3.1 Interpretation method of the ECtHR
The ECtHR has the mandate to assess the merits of a case and to determine whether or not a State has violated the human rights protected by the Convention. By doing so, it assesses the legality of the State’s actions in conformity with its earlier case law and develops human rights standards and legal doctrines. While the mandate of the ECtHR is quite straightforward, the exact role of the Court is less clear. Some scholars argue that the power of the Court should be limited to supervising the legal principles, consensus and state practice, but not expanding the protection. Lord Hoffmann, for example, criticizes the Court for including issues like environmental protection into the ambit of the Convention. He states that “it could be said to trivialize and discredit the grand ideals of international human rights that cases like
Hatton v. UK should provide the material for and international law of human rights”.39 The role of the law needs to project the ‘life of the current society’ and it can only modify this when it follows the development of national morality and opinion.40 To uphold this purpose, the Court uses the margin of appreciation doctrine. The margin of appreciation is the
discretion that the Court allows national authorities, in fulfilling their obligations under the Convention. Therefore, States can choose their own means on how to comply to certain obligations. The extent of the margin depends on a number of factors. One of these factors is consensus. The Court uses this consensus to establish an European understanding on the scope of protection. If there is consensus on an issue, the Court will afford a narrow margin for the State in contrast with when there is no consensus, then the margin will be wide.41
39 Lord Hoffmann, The Universality of Human Rights, Judicial Studies Board Annual Lecture, 19 March 2009, par. 36. 40 P.N. Drost, Human Rights as Legal Rights, Leyden, Sijthoff, 1965, p. 248.
41 E. Benvenisti, Margin of appreciation, consensus, and universal standards. New York University Journal of International
Some scholars however take a different position towards the role of the ECtHR. In their view, the Court needs to search for holistic and progressive approaches to human rights protection.42 The Court must be seen as a developer of international human rights law. In this way the Court can include issues like environmental protection into the ambit of the Convention. This requires a dynamic and moral interpretation of the Convention; the Convention is a living instrument which must be interpreted in light of present-day conditions.43
These different understandings of the role of the Court influence how judges interpret the law and see their own role as judges. Regarding environmental harm, the Court has been quite unanimous in its findings on its role in providing protection.44 However there are some cases where the Court was divided. The Court held in Hatton v. UK case that there was no violation of article 8 ECHR. However, five dissenting judges held that “contemporary international and constitutional law has explicitly recognized the need to protect human rights in an
environmental context”.45 Surprisingly, this statement has been the center of the discussion on the capacity of the ECtHR to protect human rights regarding environmental harm. In the 2009
Tatar v. Romania case, the Court has even departed from its position in Hatton v. UK and has
come closer to the statement of the dissenting judges by deciding that the danger to the environment and to the well-being of the population was foreseeable.46
The Vienna Convention on the Law of Treaties is one of the external sources of interpretation of the ECHR. According to article 31(1), international agreements should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.47 This includes that the Court can also refer, in its interpretation of the Convention, to other national and international legal
instruments. This follows from Demir and Baykara v. Turkey, where the Court held that in its interpretation it was compelled to take account of evolving norms of national and
42 Letsas G, ‘Judge Rozakis’s Separate Opinions and the Strasbourg Dilemma,’ in Dean Spielmann et al., The European
Convention on Human Rights: A Living and Dynamic Instrument – Liber Amicorum in Honour of Judge Rozakis, Bruylant, 2011, p. 7.
43 Tyrer v. the United Kingdom (1978) Series A no. 26, par. 31.
44 See for example: López Ostra v. Spain (1994) no. 16798/90, Taşkın and Others v. Turkey (2004) no. 46117/99, Öçkan and
Others v. Turkey (2006) no. 46771/99, Dubetska and Others v. Ukraine (2011) no. 30499/03, Budayeva and Others v. Russia (2008)no. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 and Hamer v. Belgium (2007) no. 21861/03.
45 Hatton and Others v. the United Kingdom (2003) no. 36022/97(GC), dissenting opinion, para 1. 46 Tătar v. Romania (2009) no. 67021/01, par. 111.
international law.48 In several other cases the Court has referred to other international norms. An example is Tatar v. Romania, where the Court referred to the Rio Declaration49 and
Taskin and others v. Turkey where the Court referred to the Aarhus Convention.50
These interpretation methods are factors of how the judges of the Court apply the rules of interpretation. Activist judges can, for example, value the protection of the individual
regarding environmental harm over legal certainty. An example: article 8 is considered one of the most open-ended provisions of the Convention. It is also the area in which the Court has arguably most clearly established itself as ‘an activist court’.
3.2 Territorial liability
In principle, a State is only responsible for its actions and actions of others inside its own territory i.e. territorial liability. This causes difficulties with establishing the responsibility of one single State because GHG emissions are caused by both the State and private actors all around the world.
The Dutch Court solved this problem with holding that even though there are multiple parties causing GHG emissions all around the world, it is within the power of the State to control its own emissions inside its territory. Applying the Dutch Courts approach, climate cases can be formulated to comply with the purpose and rules of territorial liability under the ECHR. Despite the fact that Urgenda is a domestic case, impact can be global when courts compel states to comply with ambitious goals to mitigate climate change under the ECHR. This would result in a positive effect on the developing States. To assess if there is territorial liability, assessment of the public interest, awareness of the State requirement and the role of the burden of proof would be necessary.
48 Demir and Baykara v. Turkey (2008) no. 34503/97, paras. 67 and 85. 49 Tătar v. Romania (2009) no. 67021/01, par. 111.
3.2.1 Public interest argumentation
The ECtHR is able to recognize the necessity of protecting the public interest against
environmental harm. If the Court would go a step further and would recognize climate change as a public interest, this could enable the Court to assess whether or not States have succeeded or failed to strike a fair balance between economic interests and climate change. Therefore, it is important that the Court recognizes the connection between climate change and human rights problems. Because the Court has not provided a legal definition of the suitability of climate change as a public interest, analyzing the case law of the Court regarding the public interests, is necessary.
The green case law of the ECtHR has demonstrated that the environment plays an increasing role in the current society. 51 The ECtHR has often made references to international, regional and national developments when establishing the status of the environment as a public interest.52 This is in line with the judgment of the Urgenda case where the Court referred to several international and European conventions and agreements to determine the State’s obligations and reduction target. Building on this view the ECtHR could also take this statement into consideration on the basis of consensus. Consensus under States about the severity of climate change can be found in statements of the current international scientific community on climate change.53 Furthermore, many States have implemented climate laws into their policies and even domestic courts have ruled on climate change cases.54 All these developments show that there are increasing attempts to mitigate climate change all around the world.
Even though there is an increasing understanding of the importance of mitigating climate change, in Hatton v. UK the Court held that economic interests prevail over environmental and individual interests. This situation concerns the noise pollution of Heathrow airport in London. The Court held that the economic interest was more important than the rights of individuals to be protected against noise pollution. In principle the Court needs to follow its
51 Uuhiniemi and others v. Finland (1994) no. 21343/93, Fägerskiöld v. Sweden (2008) no. 37664/04, Fredin (no. 1) v.
Sweden (1991) no. 12033/86.
52 Mangouras v. Spain (2010) no. 12050/04 (GC), para 86.
53 NASA, Climate Change: Vital Signs of the Planet. 2020. Scientific Consensus: Earth's Climate Is Warming, available at:
<https://climate.nasa.gov/scientific-consensus/>.
54 ECLI:NL:HR:2019:2007, Hoge Raad, 19/00135, Family Farmers and Greenpeace Germany v. Germany, VG10K412.18,
own case law and thus this particular case. However, when there are specific reasons, it can depart from its earlier case law. This leaves room for manoeuvre and a way for the Court to practice its dynamic interpretation reflecting the views of the changing society on the
importance and severity of climate change. Furthermore, the Court is more likely to change its case law and to come closer in winning domestic climate change cases when there is
consensus in Europe about the severity of climate change. The Urgenda case therefore will have an impact on the consensus of the importance of mitigating climate change. The fact that after the Urgenda case more and more climate change cases appeared before domestic
courts55, contributes to this consensus. However, in contrast, the Court has also acknowledged that States have a legitimate interest in restricting the rights of art. 8 on the basis of city planning and environmental protection.56 Alternatively, the Court could leave this position if domestic courts would be able to define climate change policy to be a public interest and that the state has failed to fulfill its positive obligations. Under the green jurisprudence, the Court then will take into consideration these judgments of domestic courts and request enforcement of the domestic ruling. However, more successful climate change cases need to exist before the Court can part from its position and earlier case law due to consensus.
3.2.2 Test of awareness
The Court has, in its case law, established the requirement that States should take preventive measures to protect the rights if 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.57 The effects of climate change can, in specific circumstances, constitute a real and immediate risk to the life of individuals. The IPCC has reported in its Fifth Assessment Report that climate change causes severe heat waves that can cause forest fires and water floods. This will result in people dying and global migrations. Establishing a successful human rights claim on the basis of an inadequate environment policy of the government and inadequate action of the government to prevent climate change requires evidence that the State was aware of the dangerous consequences and climate change, and if not, it should have been aware.
55 For example: Family Farmers and Greenpeace Germany v. Germany, VG10K412.18, 31 October 2019 and Juliana v. The
United States, No.18-36082, D.C. No. 6:15-cv-01517-AA.
56 Hamer v. Belgium (2007) no. 21861/03, para 79. 57 Osman v. UK (1998) 87/1997/871/1083, para 116.
In Brincat and others v. Malta, the Court held that Malta should have known about the health risks related to asbestos on the ground of domestic and international scientific knowledge of asbestos at that time. The Court also considered it of importance that Malta was party to the International Labour Organisation, which was concerned with asbestos related activities.58 Furthermore, in Vilnes and Others v. Norway, the Court held that scientific uncertainty does not stand in the way of taking preventative measures.59 The Urgenda case also illustrates how to apply the assessment test and how to decide whether the State should have been aware of the dangerous risks of climate change. As stated in the previous chapter, the Dutch Court was involved in international policy making regarding the reduction of GHG emissions and this presupposed its awareness of dangerous climate change. Therefore, Urgenda can be used to lower the threshold of the Court to conduct a similar assessment regarding climate change and to conclude that there is consensus on the existence of climate change and the impact of climate change on human rights.
3.2.4 Burden of proof
In principle the burden of proof, to prove the awareness of the State on the risks of climate change, rests with the applicant. However, in this specific situation concerning climate change, it may be an unreasonable task. Therefore, the Court has concluded that the State itself is in a better position to prove that it has not failed to fulfill their obligations. This shows that it is possible for the burden of proof to shift to the side of the State in specific situations. This has lowered the threshold for the applicant to appear before Court. In Urgenda the precautionary principle was used to support the shift of the burden of proof to the State. The principle is explained in a way that the State should adopt more action despite the uncertainty of the effect of its measures.60 The applicants are the ones that demanded more action. The burden of proof therefore lays with the party who resists taking more action, in this case the State of the Netherlands. Following this principle, the Dutch Court held that the government failed to prove why it did not take more stringent action to comply with its international obligations. Similarly, this procedure was used in Massachusetts v. EPA where the Supreme
58 Brincat and Others v. Malta, no. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/1, para. 9,39-40,105 and 106. 59 Vilnes and Others v. Norway (2013) no. 52806/09 and 22703/10, paras. 174 and 244.
Court of the United States declared that the EPA may avoid regulating GHG emissions “only if it determines that greenhouse gases do not contribute to climate change”.61
3.3 Causality
It is hard to establish a causal link between the damage to health and an inadequate climate policy when there are multiple contributors to climate change. Moreover, not one State releases enough GHG emissions on its own to cause climate change by itself. Climate change is caused by the accumulation of all GHG emissions combined. Therefore, no State on its own fulfills the ‘but for’ (condicio sine qua non) test. This test is usually used to deem the
responsibility of States. However, using this test, not one single state would be individually responsible for causing dangerous climate change. To avoid States hiding behind the fact that the State’s contribution of GHG emissions is negligible, the Court has set aside the test regarding environmental case. This results in concluding that every State is responsible for their own share of GHG emissions. This proportional liability seems to be the accepted rule in all jurisdictions in Europe. In the UK for example, the House of Lords held in Bonnington
Castings v Wardlaw that the claimant did not have to prove which source had been the more
probable cause of this disease. It was sufficient if he proved that the expose had a contribution to the development of the disease.62 Another example is the Kalimijnen case in the
Netherlands. In this case, Germany, France, the Netherlands and Luxembourg all contributed to the pollution of the Rhine river because by dumping chloride. No single dumping would be enough to cause the pollution, but all the contributions together caused the pollution. The Supreme Court followed the opinion of Advocate General Franx who stated that the ‘but for’ test does not apply in these situations where there are cumulative causes.63 This could lead to the unacceptable consequence that all States individually could escape liability. The
Kalimijnen case was also brought forward by the applicants in Urgenda.64 This shows the same view of the Dutch Courts regarding causality.
Another time this approach was accepted was by the US Supreme Court in Massachutes v.
EPA. The Court stated that “while it may be true that regulating motor-vehicle emissions will
61 Massachusetts v. EPA (2007) NO. 05-1120, 533. 62 Bonnington Castings v Wardlaw [1956] AC 613.
63 ECLI:NL:PHR:1988:AD5713, 23 September 1988, par. 8.7.
64 Urgenda, summons in de case: Urgenda Foundation v. Kingdom of the Netherlands, regarding the failure of the Dutch
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”. Therefore, “reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere”.65 This view can be applied regarding climate change. Every State’s avoided contribution of GHG emissions can slow down the dangerous consequences of climate change which makes each State responsible. Furthermore, the UN speaks of common but differentiated responsibility. This means that the prevention of climate change is the common interest of all States and States are therefore individually responsible to achieve this aim. In line with the precautionary principle of Tatar v. Romania, lack of certainty in the light of current scientific and technical knowledge cannot justify a State's delay in taking effective and proportionate measures to prevent a risk of serious and irreversible damage to the
environment.66
3.4 Admissibility
According to art. 34 ECHR, all applicants must fulfil the requirements for the ‘victim status’. The Court of Appeal and the Supreme Court in Urgenda held that this procedural article does not apply in national cases. Obviously, this article applies before the ECtHR, which means that this article possibly could stand in the way for climate cases to be adjudicated. To determine the ‘victim status’, the Court must assess if the applicant personally has suffered from the violation of his/her rights as protected by the Convention. However, it seems that the Court doesn’t apply a strict test; according to the Court, existence of injury is not required, and the term ‘victim’ must also be interpreted in an evolutive manner in the light of
conditions in contemporary society.67 Moreover, the Court also includes ‘potential’ victims to be victims under art. 34. An example is to be a victim of a violation of the Convention when covered by the scope of legislation permitting secret surveillance measures.68 This shows that the Court has expanded their protective scope of the Convention in the light of the changing conditions of society. The Court has already recognized environmental harm into the ambit of the Convention.69 Therefore, victims of the future consequences of climate change could be included under potential victims.
65 Massachusetts v. EPA (2007) NO. 05-1120, p. 4 and 22
66 Tătar v. Romania (2009) no. 67021/01, under Le principe de précaution. 67 Gorraiz lizaragga and others v. Spain (2004) no. 62543/00, par. 38. 68 Roman Zakharov v. Russia (2015) no. 47143/06, paras. 173-178. 69 See chapter 4.
Besides the victim requirement, art. 34 also precludes filing actio popularis claims, challenging the law in abstracto, or prior to the violation has actually taken place.70 This precludes the Court to adjudicate general climate change cases in the same way as Urgenda. However, analyzing the Court’s case law, the Court seems to use a less rigid interpretation to this concept. In Campbell and Coasans v UK, for example, the Court found that the State’s interpretation of art. 34 was too “rigid and runs counter to the object and purpose of the Convention in general.”71 In this way the Court tries to give effect to the main purpose of the Convention which is the protection of human rights. Therefore, the Court’s decision could be seen as a shift towards relaxation of the victim requirement and “broadening the concept of legal standing” which could possibly open the door for general climate change cases like
Urgenda.
3.5 Subsidiarity
One of the characteristics of the ECtHR is that it has a subsidiary function. This means that “the task of ensuring respect for the rights enshrined in the Convention lies first and foremost with the authorities in the Contracting States rather than with the Court. The Court can and should intervene only where the domestic authorities fail in that task”.72 When a national court has little regard to national measures, the Court steps in and corrects its shortcomings. In this way it can effectively secure the rights of individuals. This system can therefore affect environmental conditions across Europe.
70 Cordella and others v. Italy (2019) no. 54414/13 and 54264/15, par. 100.
71 Campbell and Cosans v UK (1982) no. 7511/76; 7743/76, Commission Report, para. 116.
72 European Court of Human Rights, Interlaken Follow-up, principle of subsidiarity (2010), note by Jurisconsult, available at
4. Relationship between human rights and the protection of the environment
4.1 Right to a healthy environment?
The Human Rights Committee has recognized, in its General Comment 36, the right to life regarding climate change. The Committee held that States are obliged to respect and ensure the right to life by taking measures to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors.73 However, the ECHR does not contain a specific right to a healthy environment. As seen in Urgenda, alleged
environmental human rights infringements are being tested against other provisions of the ECHR and in particular the articles 2 and 8. This approach is often criticized because it seems to deny the importance of combating environmental harm. Therefore, many attempts have been made to have the Council of Europe adopt a right to a healthy environment by means of an additional protocol. The Committee of Ministers rejected the first attempt because they did not see the direct need for expanding the ECHR with such a right.74 After that, many scholars have advocated for the introduction of an environmental right, often with suggestions on how to formulate such a specific right.75 Additionally, the Parliamentary Assembly ‘considers it not only a fundamental right of citizens to live in a healthy environment but a duty of society as a whole and each individual in particular to pass on a healthy and viable environment to future generations’ and it notes ‘that in spite of the political and legal initiatives taken both nationally and internationally, environmental protection is still very inadequately
guaranteed’.76 However, the Committee of Ministers hasn’t responded yet.
Without the specific right to a healthy environment, environmental claims need to be based on other provisions of the ECHR. Therefore, the Court needs to determine these provisions also applicable to environmental issues.
73 UN Human Rights Committee (HRC), General comment no. 36, Article 6 (Right to Life), 3 September 2019,
CCPR/C/GC/35, par. 62.
74 W.P Gormley, Human Rights and Environment: The Need for International Cooperation (Sijthof 1976) 112.
75 Examples of scholars are: A. Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23(3) European Journal of
International Law 613 and S.T. Ramnewash-Oemrawsingh, The Human Right to a Viable Environment (T.M.C. Asser Press: 2011).
4.2 Environmental protection on the basis of positive obligations
Despite the fact that the right to a healthy environment does not exist, over the years,
environmental human rights have gained more recognition. The ECtHR has tested actions and omissions of governments against human rights that are protected by the ECHR. Several cases that were decided under article 2 and 8 ended up in successful environmental cases.
The ECHR contains mostly civil and political rights. Traditionally, these rights are considered negative rights. However, with the recognition of positive obligations and with the less strict division between civil and political rights and socio-economic rights, the ECtHR has
expanded its protective scope. Positive obligations are obligations on States to take active steps to ensure human rights. The ECtHR has expanded its protective scope by extending these obligations to environmental issues. However, it is not exactly clear what specific positive obligations follow from a human rights norm because positive obligations can be fulfilled in various ways.77 This in contrast with negative obligations where it is clear what must be done (refrain from interfering). International courts do not formulate specific positive obligations because it is in principle not their task to interfere with national policy making. However, regarding the environment, this could entail that States are obliged to take all possible measures to prevent or to bring to an end serious environmental harm.
Looking at the case law of the ECtHR it is shown that Urgenda involves a more abstract situation and a more precise positive obligation than is usually the case in human rights adjudication. The Dutch Court acted in an activist way by forcing the State to comply with its specific order of reducing by 25% before 2020. In contrast, the ECtHR has not decided on climate cases yet. However, it is inevitable that climate cases will appear before the ECtHR. Therefore, it is important to see the development of environmental cases of the ECtHR and how the Court has interpreted them over time. It could be possible that the Court will extend these cases to make them applicable to climate change cases. The Urgenda case could therefore possibly be used to ensure that human rights ‘’fit’’ in climate change cases so that courts could provide effective protection.
77 V. Stayanova, ‘The Disjunctive Structure of Positive Obligations under the European Convention on Human Rights’
The case law of the ECtHR of the last couple years shows a development on the approach of the Court towards protecting human rights related to the environment. On the one side this approach is progressive and has significantly contributed to the development of
environmental obligations to regulate activities, to enforce legal, administrative, and judicial measures to protect the human rights of all human beings. However, on the other side, there is a degree of ambiguity in the case law and varying approaches regarding the issue of
individual rights and collective interests of the whole society. Claims related to climate change are usual claims concerning the interests of the whole society and mostly concerning the future generation, since they are the ones who are going to feel the effects the most. This is why the solution must be found on the international level.
The most common article used in international cases regarding environmental harm, are the articles 2 and 8. These articles include positive obligations that can serve as a basis for assessing climate change policies.
Starting with the López Ostra v. Spain case, the Court has made a significant interpretation of art. 8 as a right to a healthy environment for the first time. Herein the Court concluded that positive obligations of States, also include acts by private parties.78 This was emphasized in
Guerra v. Italy where the Court did find a violation of art. 8 because the State did not fulfil its
obligation to secure the applicants’ right to respect their private and family life.79 In Fadeyeva
v. Russia, the Court equally found a violation of article 8. The applicant claimed that the
amount of air pollution at her home harmed her health and well-being. The Court took it further than its previous judgments and held that the pollution had exceeded safe limits and that the government had “failed to strike a fair balance to strike a fair balance between the interests of the community and the applicant's effective enjoyment of her right to respect for her home and her private life”.80 Furthermore, the Court “points out that the State's
responsibility in environmental cases may arise from a failure to regulate private industry”.81 The most important case so far on the basis of article 2, is the Öneryildiz v. Turkey case. In this case, the applicants submitted that the government was responsible for the loss of their relatives and their properties due to a methane explosion on a garbage tip in Istanbul. The
78 F. Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21(1) The European Journal of
International Law 41, 49.
79 Guerra and others v. Italy (1998) no. 14967/89, para 60. 80 Fadeyeva v Russia (2005) no. 55723/00, paras 133-134. 81 Ibid. para 89
Court held that art. 2 must be interpreted in a way as to make it safeguards practical and effective. The Court stressed that the State did not do all that could have been expected from them to prevent the deaths from happening. Therefore, States have a positive obligation to “take appropriate steps to safeguard the lives of those within their jurisdiction.” Especially in this case where the government knew or ought to have known that there was a real and immediate risk to the lives of the people living on the garbage tip. Furthermore, this also “entails a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.”82 Another case worth mentioning is the Budayeva and others v. Russia case. In this case, Tyrnauz (Russia) was hit by a natural disaster; a big part of the residential area was flooded because of mudslides. The dispute was not about whether it would be likely that the mudslides would take place, but whether the government had known that the mudslides would be of a much larger scale, would be much more destructive than normal and would thereby put the lives of the residents at risk by failing to mitigate the effects.83
These cases are obviously not directly related to climate change. However, they can support climate change cases and can be helpful in protecting the right to life and prevent the effects of dangerous climate change. In both cases, the State had a duty of care that they failed to comply with. The States knew about the dangers and risks but failed to act by taking preventative measures.84 When potential lives are at stake regarding a natural disaster, the Court in Budayeva held that ‘Article 2 includes a duty to do everything within the
authorities' power in the sphere of disaster relief for the protection of that right’.85 States have a wider margin of appreciation regarding natural disasters than regarding man-made danger since natural disasters have an unforeseeable nature. It is of course quite difficult to determine whether natural disasters are caused by climate change or are ‘normal’ disasters. However, it follows from several reports of the IPCC regarding climate science that GHG emissions are caused by humans. If it could be proven that a natural disaster is caused by climate change or GHG emissions, and the lives of citizens would be at risk, this would indicate that the State would have a strong positive obligation. Not complying to this obligation would mean that the State is violating the Convention. Even if measures have been taken by the State, violation of
82 Öneryildiz v. Turkey (2004) no. 48939/99, para 89.
83Budayeva and Others v. Russia (2008) no. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, paras 146 and 153. 84 D. Shelton, ‘Human Rights and Climate Change’ (2009) Buffett Center for International and Comparative Studies
Working Paper Series, Working Paper No 09-002 1, p. 18.
the Convention is still possible if protection measures do not create a fair balance between the conflicting interests.86 On top of that, the measures must be proven effective.87 This means that mitigation measures have to be equally effective, adequate and proven.
In Urgenda man-made climate science and the risks of the Dutch citizens' lives has been proven and accepted by the Dutch Court. The Dutch courts have followed these cases of the ECtHR to extend its scope to make it applicable to climate change. The Court held that “the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the rights to home and private life. This obligation applies to all activities, public and non-public, which could endanger the rights protected in these articles, and certainly in the face of industrial activities which by their very nature are dangerous. If the government knows that there is a real and imminent threat, the State must take precautionary measures to prevent infringement as far as possible''.88 On this basis, the Court ordered the State to reduce its GHG emissions by 25% before 2020.
86 Fadeyeva v Russia (2005) no. 55723/00, paras. 132–34.
87 Oluić v. Croatia (2010) no. 61260/08, paras. 48–66 and Taşkın and Others v. Turkey (2004) no. 46117/99. 88 ECLI:NL:GHDHA:2018:2610, Gerechtshof Den Haag, 200.178.245/01, par. 43.
5. Conclusion
By analyzing the Urgenda case and the ECtHR’s case law, a lot of similarities have been shown. However, the case is a national case and therefore impact on an international court seems almost nil. Yet, the Urgenda case is based on international human rights law and the Court is obliged to interpret the same legal principles as the ECtHR. The first hurdle that the Court needs to overcome, would it be able to adjudicate a similar case like Urgenda, is the victim requirement and the actio popularis of article 34 of the Convention. Regarding
environmental issues, the Court has already shown a relaxed and liberal approach which could open the door for similar climate change cases. Additionally, the increasement of national climate cases and the importance of climate change could influence this development of approach even more.
In any event, what the Urgenda case does demonstrate is the realization and
acknowledgement that climate change has a negative impact on our fundamental human rights. Moreover it shows that these climate cases can be adjudicated by courts. This shows that courts play a role in addressing climate change, are capable in promoting human rights and are able to adjudicate over these issues. The Convention was not created with protecting the environment in mind. However, the Court was, through its case law, to recognize the environment as a right to life.
Secondly, the Netherlands has interpreted article 2 and article 8 in accordance with the ECHR, considering they are a party to the Convention. This resulted in the decision of the Dutch Court to order the State to reduce their GHG emissions by 25% before 2020. This shows the judicial activism of the Court to not only order the State to reduce but also how they have to do it. This also derives from the fact that States have the freedom to take more far-reaching measures than is imposed on them. Similarly, the ECtHR shows this judicial activism in its case law as they are interpreting the Convention as a living instrument -
interpreted in the context of the present-day society. This is also shown in the interpretation of the Court to include the environment into the ambit of article 2 and 8. However, it would not be likely that the Court will go as far as the Dutch Court in ordering specific measures. The Court still has a subsidiary function and ordering specific measures will infringe the
sovereignty of States. Besides, the Court usually gives a wide margin of appreciation to States in which measures they use to comply with their obligations.
Thirdly, the ECtHR takes international but also national law into account when interpreting and deciding on a case. This is also in line with the principle of international consensus. With the increase of international consensus about the dangers and importance of climate change, the view of the society is changing. The Court must therefore take into account the consensus as they are interpreting the Convention as a living instrument.
Fourthly, by analyzing the environmental case law of the ECtHR, it is shown that the Court still has a long way to go in developing a solid and effective environmental right. It follows from the case law that the Court balances the interests of both parties. Therefore it could be possible that the Court would prevail economic interests over environmental interests. This could be problematic since most GHG emissions derive from private economic parties. The Court in its earlier case law had decided that economic interests could prevail over
environmental interests.
Analyzing the Urgenda case and the case law of the ECtHR, no real impact has been proved. It is still uncertain and debatable whether the ECtHR will be able adjudicate a similar case in the near future. What we do know is that climate change is real and measures need to be taken now in order to create a liveable environment for the next generation. In conclusion, Urgenda has been a step in the right direction towards a sustainable future.
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