After Urgenda  How the world-famous Dutch case affected climate regulation and climate litigation across borders.

After Urgenda

How the world-famous Dutch case affected climate regulation and climate litigation across borders.

Research question:

How could the Urgenda-case affect global climate litigation and what were its domestic effects?

Abstract:

How come four years of the Urgenda’s legal proceedings were necessary for the Dutch State to get the urgency of climate change and finally start acting? Especially since most of the Dutch territory is below sea level, there is grave danger of losing land and living space when the level rises as a consequence of global warming and melting ice caps. Many international climate agreements lack enforcement mechanisms, therefore domestic action is needed when a State risks human life and private life by not taking sufficient action to reduce greenhouse gas emissions. How can this obligation be created on national level? In this thesis, I analyse the Urgenda-case in which the Urgenda foundation has ordered the Dutch state to comply with its international agreements. The Urgenda-case has been widely discussed all over the world by scholars who find the order of the Dutch Courts either concerning or hopeful. Many scholars worry that the judges trespassed their competence in giving orders to the government. In the second section I explain why the Court was able to apply the Dutch and European law in this way without overstepping its boundaries. Even though climate proceedings in other states refer to the Urgenda-case as an example, the unique Dutch legal framework makes it hard to transplant the case, as will become clear in the third chapter. In the fourth chapter, I will discuss why the Netherlands needed this case even though the government had already set its targets and estimated a reduction of 20% compared to 1990 levels. Finally, I will present an overview of the newly adopted Climate Change laws and measures of the Netherlands and discuss in what way they are linked to this case.

Name: Marije Pricker

Email: marijepricker@gmail.com Student Number: 10576495

Mastertrack: European and international law: Public international law Supervisor: Dr. León Castellanos-Jankiewicz

Table of contents

1. Introduction

It’s 2020. The year that the Intergovernmental Panel on Climate Change (IPCC) found that emissions should be reduced with 25-40% compared to 1990 levels.1 _{Now that we are here, it is} time to assess whether we are on the right track. Are the international goals of reducing the concentration of greenhouse gases (‘GHG’) within reach?

With a global break on airplane vacations due to the COVID-19 pandemic, many states closed their borders and take even more severe measures that restrict the freedom of movement of people. This shows one clear thing; governments are willing to take far-reaching measures when people’s safety is at risk. The positive side of these rapid changes in the day to day life is that the chance of reaching the Dutch emissions reduction targets becomes slightly attainable.

Since the 1970’s the need for climate awareness has become a matter of growing importance and throughout the last years, many targets have been concluded both nationally, internationally and on the European level. The Netherlands has always been part of international agreements on limiting global warming and time after time emphasized the importance of reducing CO2 emissions. Notwithstanding these speeches and declarations, there has been a collective procrastination in this field that led to the climate challenge evolve into a climate emergency. Around the world, forest fires and floods show the altering climate circumstances that create dangerous situations for mankind.

How come four years of the Urgenda’s legal proceedings were necessary for the Dutch State (‘the State’) to get the urgency of climate change and finally start acting?2 _{Especially since most} of the Dutch territory is below sea level, there is grave danger of losing land and living space when the level rises as a consequence of global warming and melting ice caps. Many

international climate agreements lack enforcement mechanisms, therefore domestic action is needed when a State risks human life and private life by not taking sufficient action to reduce greenhouse gas emissions. How can this obligation be created on national level? In this thesis, I analyse the Urgenda-case in which the Urgenda foundation has ordered the Dutch state to comply with its international agreements. The Urgenda-case has been widely discussed all over the world by scholars who find the order of the Dutch Courts either concerning or hopeful. Many scholars worry that the judges trespassed their competence in giving orders to the government. In the second section I explain why the Court was able to apply the Dutch and European law in this way without overstepping its boundaries. Even though climate proceedings in other states refer to the Urgenda-case as an example, the unique Dutch legal framework makes it hard to transplant the case, as will become clear in the third chapter. In the fourth chapter, I will discuss why the Netherlands needed this case even though the government had already set its targets and

estimated a reduction of 20% compared to 1990 levels. Finally, I will present an overview of the newly adopted Climate Change laws and measures of the Netherlands and discuss in what way they are linked to this case.

1 _{Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2007.} 2 _{Court of First Instance, The Hague, 24 June 2015, Stichting Urgenda / Staat der Nederlanden, ECLI:NL:RBDHA:2015:7145} (‘Urgenda, District Court’); Court of Appeal of The Hague, 9 October 2018, Stichting Urgenda / Staat der Nederlanden,

ECLI:NL: GHDHA:2018:2591 (‘Urgenda, Court of Appeal’); Supreme Court, The Hague, 20 December 2019, Stichting Urgenda / Staat der Nederlanden, ECLI:NL:HR:2019:2006. (‘Urgenda, Supreme Court’).

2. What is the Urgenda-case about?

In this section I explain the Dutch legal framework and the circumstances that led to the Urgenda-case (‘Urgenda’ or ‘the Case’). I will also explain the uncommon reception of international law into the Dutch system. In addition, I will give a small overview of the statements of both parties.

2.1 The need to reduce emissions

The use of energy has accelerated after the industrial revolution by the combustion of fossil fuels. In this process, greenhouse gases are emitted. One of the most important greenhouse gases is CO2 which is partly absorbed by forests and oceans. However, the possibility of absorption decreases because of deforestation and the warming of ocean water. Therefore, more greenhouse gases (‘GHG’s’) rise up to the atmosphere, thickening the layer that holds the warmth of the earth. This leads to global warming. Since the industrial revolution, the planet’s average temperature has increased by approximately 1.1 degrees. Further warming has multiple

dangerous consequences such as extreme weather, melting of ice caps which subsequently leads to higher sea levels. All this will change ecosystems and possibly leads to the loss of food supplies or loss of territory and habitable areas. Another consequence are health risks that could lead to the loss of human lives. Since the effects of emissions in the atmosphere are experienced about thirty or forty years later than the actual emissions take place, future consequences can only be estimated.3

The warming of the earth can be prevented by limiting the emission of GHG’s into the

atmosphere. This is called mitigation. Another possible type of measure is adaptation. These are measures taken to anticipate the effects of climate change. The concentration of GHG’s is expressed in parts per million (ppm). According to the international consensus on mitigation targets, the concentration of emissions should stay below 450 ppm in the year 2100 which constitutes to limiting global warming to a maximum of 2 degrees. New insights have shown the need to lower the maximum temperature rise to 1.5 degrees. This translates to a maximum of 430 ppm, whereas the current concentration of greenhouse gases is 401 ppm. This shockingly small leeway of emitting greenhouse gases is called the ‘carbon budget’.

Scientific researches that the above assessment is based on, have been recognized at the

international level. For example, the United Nations Framework Convention on Climate Change (‘UNFCCC’) designed its objective towards reducing the emission of greenhouse gases.4 _{It has} two types of parties, Annex 1 countries (developed countries) and non-Annex 1 countries

(developing countries). The Netherlands is categorized in the first group. The UNFCCC provides for ‘conference of the parties’ (‘COP’) which is its highest decision-making body. Yet its

decisions are non-binding. The COP meets annually and its agreements are important for the interpretation of international commitments - based on article 31 of the Vienna Convention on the Law of Treaties - and to assess the consensus on the topic of climate change. In multiple

3 _{Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2007.} 4 _{“Recognizing also the need for developed countries to take immediate action in a flexible manner on the basis of clear}

priorities, as a first step towards comprehensive response strategies at the global, national and, where agreed, regional levels that take into account all greenhouse gases, with due consideration of their relative contributions to the enhancement of the greenhouse effect,(…)”.

COP’s, states have been urged to reduce their greenhouse gas emissions. In 2015, COP21 led to the Paris Agreement, which the Netherlands has signed. It emphasized the need for the maximum rise in temperature to stay below 1.5 degrees.5 _{Each time the State postpones the reduction, it} will need more stringent reductions in the future to be able to keep the reduction target within reach.6

The Intergovernmental Panel on Climate Change (‘IPCC’) is an intergovernmental organization created by the United Nations World Meteorological Organization and the United Nations Environment Programme. Its objective is to study and assess scientific research on all aspects of climate change. The reduction targets in the preceding paragraph are stated in the Fourth IPCC Assessment Report (‘AR4’).7 _{Even though this is not a binding instrument and it does not create} any obligations for states, the research in this report has been the main supporting scientific document for the Urgenda judgement. The Court investigated the international consensus on the scientific statements in the report to be able to apply it to the Case.

The Netherlands is also bound to the European Union reduction targets. The EU has created legislation in 2009 which includes three main targets for 2020. The first is a 20% cut in GHG emissions compared to 1990 levels. Secondly, a minimum of 20% of energy needs to be renewable. Thirdly, energy efficiency should be improved with 20% in 2020. Concerning the reduction in GHG’s, the EU introduced the Emissions Trading System (‘ETS’) which covers 45% of the EU’s GHG emissions, for example in aviation and power and energy sectors.8 Reductions in the non-ETS sectors such as housing, agriculture, waste and transport are

regulated under the Effort Sharing Decision.9 _{These targets are based on national GDP’s, and are} equally shared between States. The responsibility for the reduction policies lies with the Member States. However, the EU encourages states by setting EU-standards that will facilitate the

implementation of these policies. The Effort Sharing Decision is based on the Kyoto protocol.10 Moreover, the EU implemented the Paris Agreement under its 2030 climate and energy

framework.11

2.2 The rare direct applicability of international law

Both the fourth IPCC report and COP decisions are non-binding. Notwithstanding this fact, the Dutch courts that handled the Urgenda-case still found an obligation for the State to reduce its greenhouse gas emissions with 25% instead of the -binding- collective EU reduction of 20%. How is it possible that the courts made this interpretation?

5 _{Paris Agreement, opened for signature 16 February 2016, United Nations Treaty Series I-54113 (entered into force 4 November} 2016) (‘Paris Agreement’).

6 _{Court of Appeal, para 45.}

7 _{IPCC Fourth Assessment Report, supra note 1.}

8 _{Directive (EU) 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission} allowance trading within the Community and amending Council Directive 96/61/EC.

9 _{Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to} reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020. 10 _{Ibid, consideration 24.}

11 _{Regulation (EU) 2018/842 - Binding annual greenhouse gas emission reductions by Member States from 2021 to 2030} contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013, 30 May 2018.

The explanation can be found in the following. Dutch courts are unique in incorporating international law in their decisions. Articles 93 and 94 of the Dutch Constitution show the authority international law has in the Dutch legal context.

Article 93

Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.

Article 94

Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by

international institutions.12

When a treaty provision “binds all persons” it thus prevails over national statutory regulations and has direct applicability after publication. A treaty is seen to be binding on all persons if it creates a private right of action or applies directly to citizens.13 _{Interpretation thereof needs to be} done according to article 31 to 33 of the Vienna Convention on the Law of Treaties.14 _{If the} direct applicability does not follow from the original text or the history of the construction of the provision, the content of the provision is important; it should be unconditional and sufficiently accurate. The context of the provision is also of importance in assessing the direct applicability. If a treaty provision or a resolution of an international institution is not binding on all persons, it can only indirectly be applied into national law. Dutch courts try to incorporate international legal views in explaining national law according to the principle of pacta sunt servanda.15 _When considering an open norm, Dutch courts assess international law as much as possible due to the reflex-effect (reflexwerking).16

2.3 The working of the reflex-effect

Since climate agreements bind states and not citizens, Urgenda could not directly rely on them. However, the District Court held that the duty of care should be interpreted in a way that the State is compliant with international norms. This kind of interpretation of the open norm of the duty of care is called the “reflex effect”.17

An important point of discussion is the fact that the Court of Appeal granted the reflex-effect to a non-binding instrument of international law, the IPCC. Some critics find this impermissible and claim the court oversteps its task of legal assessment by creating law.

12_{Translation by <dutchcivillaw.com>.}

13 _{Stein, E., & Castermans, A. (2017). Urgenda v. The State of the Netherlands: The “Reflex Effect” - Climate Change, Human} Rights, and the Expanding Definitions of the Duty of Care. McGill Journal of Sustainable Development Law, 13(2), p. 312. 14 _{Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, United Nations Treaty Series, 1155, 331} adopted by the Netherlands on 23 May 1969 (‘VCLT’).

15 _{VCLT, article 26.}

16 _{Article 92 and 94 of the Dutch Constitution; Stein, E., & Castermans, A. (2017). P. 306.}

17 _{Burgers L., Staal T. (2019) Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v the} Netherlands. In: Nijman J., Werner W. (eds) Netherlands Yearbook of International Law 2018. Netherlands Yearbook of International Law, vol 49. T.M.C. Asser Press, The Hague, p. 3.

The Court explains it is allowed to make this assessment since soft law, -such as the IPCC- often is the inspiration of hard law. It quotes the Oslo Principles on Global Climate Obligations:

“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.” 18

The District Court allocated the order on article 6:162 DCC in combination with the reflex-effect of the soft law instruments (IPCC). After concerns of the primacy of the government on this point, the Court of Appeal found an opportunity to strengthen the basis of the order by rightly allowing the standing of Urgenda in articles 2 and 8 of the European Convention on Human Rights (‘ECHR’).19 _{Thanks to article 93 of the Dutch Constitution, these articles were directly} applicable in the Dutch legal system. Moreover, article 32 ECHR subjects the Netherlands to the jurisdiction of the European Court of Human Rights (‘ECtHR’). Dutch courts must therefore interpret certain standards in the same manner as the ECtHR. Therefore, Urgenda had standing. 2.4 “Reflex-effect” on the European level

In Nada v. Switzerland the Court held that the Convention must be interpreted in harmony with general principles of international law and any relevant rules applicable between the parties.20 The Court added in Demir and Baykara v. Turkey that it’s not necessary for the State to have ratified all instruments, it would be sufficient that the relevant international instruments show an evolution in norms and principles that are applied in both international and domestic laws.21 Scientific insights and generally accepted standards must also be considered. In reference to the Urgenda-case, case law of the ECtHR on loss of territory or life due to a government failing protection of citizens would be relevant. The right to life and private life contain a positive obligation for the government. However, a straightforward meaning of this positive obligation is not described. To determine the scope, inspiration from soft law is thus needed.22

This can be done by using res interpretata, which is the way in which a judgement, that is principally only binding for the parties to the case, could be used to interpret another case. This could have provided the Court with case law that links article 2 and 8 ECHR to climate change. An example is Öneryildiz v Turkey, where the ECtHR declared that any activity, whether public or not, entails the positive obligation of the government to protect the right to life.23 _{This does} not exclude climate change, so the conclusion could be drawn that the ECHR interprets the positive obligation as also encompassing climate change cases.24 _{As the Convention must be} seen as a “living instrument” it should include an obligation to protect lives within the scope of climate change.25 _{This positive obligation varies from case to case and needs to be assessed}

18 _{Expert Group on Global Climate Obligations, Oslo Principles on Global Climate Obligations, The Hague: Eleven 2015, p. 38.} 19 _{Council of Europe., & Council of Europe. (1952). The European Convention on Human Rights. Strasbourg: Directorate of} Information, (Entered into force for the Netherlands on 31 August 1954).

20 _{European Court of Human Rights, Grand Chamber no. 10593/08, (Nada v. Switzerland).}

21 _{European Court of Human Rights, Grand chamber no. 34503/97, (Demir and Baykara v. Turkey).}

22 _{Besselink, L.F.M. (2018) ‘De constitutioneel meer legitieme manier van toetsing. Urgenda voor het Hof Den Haag’, NJB} 2018/2154 (afl. 41), p. 3081.

23 _{European Court of Human Rights, Grand chamber no 48939/99, (Öneryildiz v Turkey).} 24 _{Burgers L., Staal T. (2019), p.6.}

25 _{Eckes, C. (2018) ‘De Urgenda uitspraak doet juíst recht aan het EVRM’ (Eu explainer, 27 October 2018)} <http://euexplainer.nl/?p=520> accessed 25 june 2020; Burgers & Staal (2019), p. 6.

according to the “common ground” method. According to the ECtHR, the common ground method reflects the common views of the States. However, sometimes just a “clear and

uncontested evidence of a continuing international trend” is sufficient.26 _{It should be noted that} the Dutch Court left this possibility unused.

The common ground method could also be linked to the authority given to the IPCC report. The IPCC report and the expressions of the COP’s were the main arguments for the reduction order in the first handling of the Urgenda-case since this revealed the common ground on the necessary percentage of the reduction.

Determining the scope of the positive obligation is not the perception of international law into the national law (reflex-effect) but is used to determine the scope of directly applicable international law. However, this is rather similar since in both cases non-directly applicable norms clarify the directly applicable provisions.27

2.5 The claim of Urgenda and the defense of the State

Urgenda is a platform constituted by Dutch citizens. It aims towards development of better plans and measures to prevent climate change and tries to both accelerate and stimulate the transition towards a more sustainable society.

In this lawsuit, Urgenda claims that the Court should order the Dutch State (‘the State’) to

commit to its target of reducing greenhouse gases with 40% or minimally 25% compared to 1990 levels before the end of 2020 (‘the Target’). Urgenda’s standing is based on article 3:305a DCC which allows for class actions in the interest of Dutch civilians. The Court of Appeal states - in contrast to the District Court - that as individuals may rely on article 2 and 8 ECHR, Urgenda is allowed standing on behalf of the individuals it represents.28 _{The Dutch nationals that Urgenda} stands up for, will have to deal with climate change and its effects, so their interests in mitigation of climate change are susceptible for article 3:305a DCC.29 _{The victim requirements of article 34} ECHR are only needed in a case to go before the Strasbourg Court and not for the ECHR

provisions to be applicable in domestic law since most are directly applicable in the Netherlands according to article 93 of the Dutch Constitution.

These interests are the following. GHG emissions constitute dangerous climate change. Urgenda finds the share of Dutch emissions contributing to the worldwide emission level excessive in both an absolute and relative way. The excessive share falls under the responsibility of the State who violates the duty to care for the people that Urgenda represents since it does not set an emission limit for 2020 even though the IPCC shows the necessity for such a limit. According to Urgenda, the unlawfulness is based on article 6:162 DCC and articles 2 and 8 ECHR. Based on both national and international law, the State will therefore be obliged to ensure the reduction in GHG’s in order to prevent dangerous climate change. This has to constitute a reduction of 25%

26 _{Demir and Baykara v. Turkey, supra note 20.} 27 _{Besselink, L.F.M. (2018).}

28 _{Court of Appeal para 36.}

29 _{Court of Appeal para 38; Article 3:305a sub 1: “A foundation or association with full legal capacity that, according to its}

articles of association, has the objection to protect specific interests, may bring to court a legal claim that intents to protect similar interests of other persons.” Translation by <dutchcivillaw.com>.

to 40% of the 1990 levels as was stated to be necessary in the Fourth Assessment Report of the IPCC.

The necessity of reducing emissions was undisputed. Eventually, global greenhouse gases must have disappeared entirely. Other targets, the reduction of 80%-95% to 1990 levels by 2050 and the reduction of 49% to 1990 levels by 2030 have now been affirmed in the Dutch Climate Act.30 The dispute was about the Reduction Target.31

Nonetheless, until 2011 the Netherlands established its own reduction target of 30% compared to 1990 levels. In 2009, the minister of Housing, Spatial Planning and the Environment even stated that a reduction of less than 25-40% in 2020 would be inadequate to maintain the two-degree goal. However, after 2011, the State reduced its individual reduction target from 30% to 20% since it thought the same result can be achieved by improving the reduction of GHG emissions in the Netherlands after 2030. This action was never substantially based on climate science.32 In its defense, the State claims the requirements of article 3:296 DCC -the legal connection between two parties- and article 6:162 DCC have not been met since (i) the State has no legal obligation towards Urgenda and (ii) climate change would fall outside the scope of the duty of care of the State. This means Urgenda would not have standing in the Case and there would be no duty under the Dutch law for the State to reduce its emissions and meet the Reduction

Targets. Moreover, it claims the Redution Targets are not legally binding to the Netherlands and articles 2 and 8 ECHR cannot be used as a basis for creating obligations for the State since mitigating climate change is not covered by the scope of these articles. Furthermore, if the Court would grant the reduction order, this would contravene the political freedom which is comprised by the sovereign power of the government and parliament according to the separation of powers.

This controversial case has been through the entire Dutch legal system. In the following section I will assess the most important considerations of the three instances.

2.6 The District Court and the duty of care

An important finding of the District Court was that neither article 21 of the Dutch Constitution, the no harm principle, the UNFCCC and its protocols nor article 191 TFEU or its ETS directive can be used as a basis for the legal obligation of the state to reduce emissions.

Moreover, in contrast to the Court of Appeal, the District Court found that Urgenda could not be seen as a direct or indirect victim of dangerous climate change which meant that article 34 ECHR -the victim requirement that allows standing at the European Court of Human Rights- could not be met and Urgenda could not directly rely on articles 2 and 8 ECHR.33 _{Therefore, the} claim could only be based on article 6:162 DCC, which reads as follows:

30 _{Climate Act (klimaatwet), (2019) article 2(1) and 2(2).} 31 _{Court of Appeal para 46.}

32 _{Court of Appeal para 52.} 33 _{District Court, para 4.45.}

1. A person who commits a tortious act against another person that can be attributed to him, must repair the damage that this other person has suffered as

a result thereof.

2. As a tortious act is regarded a violation of someone else’s right (or entitlement) and an act or omission in violation of a duty imposed by law or of

what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour.

3. A tortious act can be attributed to the person committing the tortious act if it results from his fault or from a cause for which he is accountable by virtue of

law or generally accepted principles (common opinion).34

The Court expressed that the State acted in violation of this duty of care. In the case Lindebaum

v. Cohen the Supreme Court stated that everyone should behave as is deemed fit in societal

interrelations and that the creation of a dangerous situation could also lead to a tortious act.35 _The criteria for this duty of care have been established in the Kelderluik-case.36 _{Important factors are:} first, the probability that people will be exposed to the danger; second, the probability that harm will occur from this situation; third; the severity of the impact of climate change; and fourth the drawbacks for the State to take measures to prevent the harm.

Firstly, the State has argued they would postpone mitigation by taking less measures up to 2030 and start reducing sharply from 2030 onwards. However, the court does not accept this

alternative since it would contribute significantly to the risk of dangerous climate change.37 _At least the global maximum of 450 ppm, as explained in the preceding paragraph, is allowed to prevent hazardous climate change and the Netherlands should take measures to accomplish this goal.

Secondly, the State has not argued that the needed measures would constitute an undue burden. It has previously strived towards a higher reduction target. Since the State has discretionary power, imposing a higher reduction than has been consented to in AR4 would not be permissible.

Even though the State said it would comply with the judgement, it did not agree with the manner of conclusion and appealed. However, the Court of Appeal confirmed the District Court’s

assessment following the subsequent considerations.

2.7 The scope and importance of article 2 and article 8 ECHR

The Court of Appeal allows Urgenda’s claim on article 2 ECHR, the right to life:

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following

his conviction of a crime for which this penalty is provided by law.

34_{Translation by <dutchcivillaw.com>.}

35 _{Supreme Court, 31 Jan. 1919, ECLI:NL:HR:1919:AG1776 (Lindenbaum v. Cohen).} 36 _{Supreme Court, 5 November 1965, ECLI:NL:HR:1965:AB7079, NJ 1966, 136 (kelderluik).} 37 _{District Court, para 4.85.}

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely

necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

And article 8 ECHR, the right to respect for private and family life:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for

the protection of health or morals, or for the protection of the rights and freedoms of others.

The State claims article 2 nor article 8 ECHR create an obligation to offer protection from the threat of climate change since the threat is not specific enough to fall within the scope of the articles. Both cause and solution are global and relate to the environment, a subject that is not protected by the ECHR.

The Supreme Court states that the scope of the ECHR follows from article 1. Article 2 and 8 ECHR largely overlap and entail a positive obligation to protect the lives and private life of people in its jurisdiction. This also extends to environmental cases as was confirmed by the ECtHR.38 _{In the occurrence of environmental hazard, the articles protect all people in the region} under the State’s jurisdiction. Moreover, when there is a mere risk of danger, the State has to take preventative measures to take away this risk following from both the positive obligation in the articles and the precautionary principle. The precautionary principle holds that states should aim their decision-making towards sustainable development. In the case of potential

environmental danger connected to activities, the state should withhold from these activities even if there is insufficient scientific evidence the danger will materialize.39

The risk of violation of these rights needs to be real and imminent to entail the positive

obligation.40 _{The imminence of dangerous climate change links more to the direct consequence} of the risk rather than the time the risk would occur.41 _{There is no margin of appreciation in} whether the preventative measures have to be taken, they do have to be taken in any case where

38 _{Supreme Court, para 5.2.3 and 5.2.4; ECtHR 10 November 2004, no. 46117/99 (Ta kin a.o./Turkey), para 107 and 111-114} (applicability art. 8 EVRM in threat to environmental damage that would occur in 20 to 50 years).

39 _{E.g. Principle 15 of the Rio Declaration on Environment and Development.} 40 _{Court of Appeal, para 39-43.}

they are needed. States decide in which manner they are taken, as long as they are suitable and reasonable.

The measures can consist of adaptive measures, to lessen or soften the impact of the

materialization, or mitigation measures, to prevent the threat from materializing at all. The Court should determine whether the measures are suitable in that particular case and if all competing interests have been considered.42_{Similarly, the burden on the state cannot be disproportionate.} The Court notes there is a real and immediate risk that the possible sharp rise in sea level could lead to (partial) inhabitability of the Netherlands as has been established by scientific research such as AR4. The Court explains that the life and welfare of Dutch citizens could be endangered because of climate change. Even when this risk could only materialize in the future, and would impact a large part of the population instead of a specific group, articles 2 and 8 ECHR still offer protection. The existence of the sufficiently genuine possibility that the risk will materialize will be enough to invoke the duty to take measures based on the articles.43

2.8 To what extent can the Netherlands be responsible?

States have the responsibility to ensure that activities within their jurisdiction do not cause damage to the environment of other states or of areas beyond national jurisdiction, the no harm

principle.44 _{All parties should take measures and develop policies to anticipate, prevent or} minimize causes of climate change according to article 3.3 and 4 UNFCCC.

Partial responsibility applies only when the actions of multiple states contribute to the same internationally wrongful acts according to article 47 of the Draft Articles on State Responsibility for Internationally Wrongful Acts (‘ARSIWA’).45 _{If the damage is separable, the responsibility} will be determined individually. Therefore, many states incorporated that “partial fault leads to partial responsibility” in their domestic legal system. Following this, the Court expresses that the government is only responsible for the risk of losing life or family life for the people within its jurisdiction. The Court does not provide a causal link between the inactions of the State and the risk of losing life or living space. It mentions there is no possibility of the condition sine qua non since other countries actions could lead to damage in the Netherlands as well. Bleeker, PHD-candidate at the Utrecht Centre for Water, Oceans and Sustainability Law, explains this through the three-headed dragon.46 _{Firstly, there is a lack of conclusive knowledge in climate science} concerning future effects on a global level. Secondly, climate change is a broad concept which leads to difficulties in linking causes to effects. Thirdly, the place of climate damage in legal orders is undefined. Discussions on these matters would divert from the central problem and unnecessarily complicate cases. Bleeker explains that since the order holds that the government has to cease current unlawful behavior to prevent future damage, the establishment of the unlawfulness of the government’s acts is enough to base its responsibility on. No causal link

42 _{ECtHR 13 July 2017, no. 38342/05 (Jugheli et al./Georgia), paras. 76- 78.} 43 _{Court of appeal para 43; Supreme Court para 5.6.2 and para 5.10}

44 _{As established in the Trail smelter cases: Trail Smelter Arbitration (United States v Canada) (1905) III Reports of the} International Arbitral Awards 1941.

45_{Article 47 ARSIWA:“where several States are responsible for the same internationally wrongful act, the responsibility of each}

State may be invoked in relation to that act. The general rule in international law is that of separate responsibility of a State for its own wrongful acts and paragraph 1 reflects this general rule”.

46 _{Bleeker, T. (2018) Aansprakelijkheid voor klimaatschade: een driekoppige draak. Nederlands Tijdschrift Voor Burgerlijk} Recht NBTR 1:4–11.

between the inaction and climate effects is needed.47 _{The responsibility is thus based on the} overall view that all countries have to do the necessary to counteract climate change since it will altogether lead to more space in the carbon budget.48

The State is thus obliged to take adequate measures to reduce greenhouse gases from Dutch territory. What these adequate measures are, has not been specified because it falls within the competence of the political domain. In principle, only the Dutch government has the competence to bind itself to international climate agreements. Nonetheless, in determining the scope of the positive obligation following from articles 2 and 8 ECHR, the Case shows that the international consensus on a certain topic can also indirectly bind the government to an agreement or target. Thus, non-binding rules can be used to interpret the minimum fair share of the reduction. It follows from multiple COP’s and EU litigation that there is a high degree of consensus on the needed degree of reductions from Annex 1 countries.49 _{The Paris Agreement even ascertained} the need of further reductions of emissions and emphasized that global warming should be limited to 1,5 degrees instead of 2 degrees. This new target also incorporates a stricter reduction for all countries. The UNEP expresses that action in a later stadium may not be feasible in practice and pose greater risks of climate impacts.50 _{As is the objective of the precautionary} principle, rather far-reaching measures than less far-reaching measures should be taken.51

On the one hand, even though the UNFCCC and Paris Agreement provide for cooperation of states in reaching the target, they are both based on the individual responsibility of the states and lack enforcement mechanisms. The Court of Appeal therefore finds this reduction obligation applies to the Netherlands individually as well. On the other hand, the State argues it is only bound by the 20% reduction that the EU imposed. Nonetheless, the Court dismisses this point of view by arguing the EU does not replace the statements of the UNFCCC. Furthermore, as described before, the positive obligation following from article 2 ECHR and article 8 ECHR binds the Netherlands to take sufficient measures. The Court of Appeal confirms this by stating that it would be peculiar to bind the Netherlands to a lower reduction target than the EU as a whole since its emissions per capita are among the highest of the EU.52

Moreover, the Supreme Court argues that currently, the State has formulated a reduction target of 49% for 2030 and of 95% for 2050. These targets have been enacted in the Dutch Climate Act which went in force last January 2020.53 _{The targets for 2030 and 2050 are aligned with one} another and if they would be aligned further back to 2020, a reduction target of 28% would be

47 _{Burgers L., Staal T. (2019), p. 11.} 48 _{Supreme Court, para 5.7.4. and para 5.7.8}

49 _{E.g.: COP-13 (endorsed need for reductions), COP-16 (resolution included preamble about complying with the Reduction} Target), COP 18 (countries should strive for reaching the Reduction Target); United Nations Framework Convention on Climate Change, Compilation of economy-wide emission reduction targets to be implemented by Parties included in Annex I to the Convention, 7 June 2011, FCCC/SB/2011/INF.1/Rev.1, p. 4-5.

50 _{UNEP Emission Gap Report 2013, executive summary, under 6. According to the glossary of the report, ‘later-action}

scenarios’ refer to scenarios where emissions in the period 2020 to 2030 are higher than in the corresponding least-cost scenarios. 51 _{Supreme Court, para 7.2.10}

52 _{Court of Appeal, para. 60} 53 _{Dutch Climate Act, 2019.}

appropriate.54 _{A reduction of 20% would therefore not be sufficient. Moreover, there has not} been any insight into policies or measures towards reduction for the coming years.

Additionally, the Court notes the order of a minimal reduction of 25% would not impose an impossible or disproportionate burden on the State. It is true that the measures and their results have to be shown in a short time frame from the Supreme Court decision but the primary decision was issued in 2015 and set the reduction target on 30%. Furthermore, the level playing field would not be negatively impacted since other EU countries maintain much stricter climate policies.55

The Court concludes that the broad international consensus and the alignment of the reduction targets of the Netherlands for the years 2030 and 2050 can be invoked to order a reduction of 25-40% based on articles 2 and 8 ECHR.

2.9 Is the Court overstepping the primacy of the government?

The State brings two arguments to call the order impermissible. Firstly, the order is an order to create legislation which, according to Supreme Court caselaw is not permissible. According to the Dutch Waterpakt-case, Dutch courts cannot order the government to create legislation.56 _The Court of Appeal recognizes the impact of its decision but also argues that legislation might not even be needed to reach the Reduction Target, further reaching policies would be sufficient. It also expresses that the right to judicial review is of great value in a democratic society.

The Court further opposes the State by arguing that when the State is obliged to do something, the Court can order it to do so at the request of an entitled party (3:296 DCC). This is consistent with the right to an effective legal protection (art. 13 ECHR) and the jurisdiction of the Court based on the Dutch constitution.57 _{Moreover, on the basis of article 93 of the Dutch Constitution,} the Court has to directly apply international legislation or treaties that bind all persons, such as article 2 and article 8 ECHR. Additionally, the content of the measures and policies is still up to the government.

The second argument of the government is that courts cannot make the political considerations that are necessary for the order to reduce greenhouse gases. The parliament and the government, the argument runs, have a wide degree of discretion on making political considerations.

The Court declares it cannot make political considerations but it can assess the previous

statements of the Dutch government that acknowledged the urgent need for measures to reduce emissions. The duty to follow up on these acknowledgements arises from articles 2 and 8 ECHR, the right to life and the right to private life. The fact that the order is based on the ECHR, lessens the need to accentuate the separation of powers because of its primacy.58 _{The State has endorsed} to reduce emissions and wants to achieve the Reduction Target in the future as well. This goal is unlikely to be achieved if the reduction percentage would be lowered now. Furthermore, the

54 _{Supreme Court par 7.4.5.} 55 _{Supreme Court par 7.5.3.}

56 _{Supreme Court, 21 March 2003, ECLI:NL:HR:2003:AE8462 (Waterpakt), para. 3.5, second paragraph.}

57 _{Supreme Court, 28 September 2018, ECLI:NL:HR:2018:1806, para. 3.5.2; Parliamentary Papers II, 1979/80, 16 162, no. 3, pp.} 6 and 10, and Parliamentary Papers II, 1991/92, 22 495, no. 3, pp. 83-84.

State has not made clear any statements that confirm otherwise. The order of the Court of Appeal for an emissions reduction of 25% compared to 1990 levels is thereby confirmed by the Supreme Court.

3. Why was this such a breakthrough case?

The Urgenda-case was significant in the development of climate change law. As can be seen in the preceding discussion, the ruling of the District Court in The Hague was the first time any court in the world ordered its own government to strengthen its climate change response.59 Besides this breakthrough aspect, other elements were groundbreaking as well. Particularly, it was the first time a tort law approach has been successfully used in climate litigation against a state - even though it has been attempted in cases against large fossil fuel companies.60 _The decision even has even been translated to English in order to reach a broader audience, perhaps even with the goal of being transplanted in other legal systems.61 _{The following section considers} the unique aspects of the Case and assesses the possibility of following this line of reasoning in other legal systems.

3.1 The Court giving an order to the State; political powers doctrine?

Although the State did not need to create further legislation to be able to reach the Reduction Target (on paper), these further reaching policies have a significant impact on Dutch citizens. With the use of the legal system instead of the political system the voices of the citizens will not be heard which lessens democratic legitimacy. After COVID-19 measures issued by the

government, protests led to the permission for many businesses to re-open. Whether or not this was a convenient outcome does not take away the fact that the protests show the importance of the public debate and the need for citizens to have a say in response to drastic measures. An argument raised by Shell in proceedings instituted against them by Friends of the Earth

Netherlands is that courts should not be allowed to rule on climate regulation, even though this happens more and more on a global scale.62 _{Some scholars think the legal system is used for} political gain. A main question by scholars is: is this development wanted? 63

An important argument Burgers - PhD-candidate at the University of Amsterdam - stresses, is that judges have a secondary role in interpreting law. A judge only rules in a certain way when it finds that this decision best suitable in current society. It only opposes the democratic majority when that would be best for the democratic system.64 _{When a rule is already in force, the legal} system is the only way possible to protest against such a law. Urgenda’s way of “protest” has been asking the court to order the State to enforce existing law. In my opinion, this does not constitute overstepping the court’s boundaries since it rules in the view of both Dutch nationals and international actors. A Norwegian case for example, where the Court was asked to deny

59 _{Stein E., and Castermans A. G. (2017).}

60 _{Cox R., (2015) A Climate Change Litigation Precedent: Urgenda Foundation v The State of the Netherlands, online: 79 Center} for International Governance Innovation <www.cigionline.org/sites/default/files/cigi_paper_79.pdf>.

61 _{Roy S., and Woerdman E. (2016). Situating Urgenda v the Netherlands within comparative climate change litigation. Journal}

of Energy & Natural Resources Law, 34(2), 165–189.

62 _{Peel, J., & Osofsky, H. (2015) Climate change litigation: regulatory pathways to cleaner energy. Cambridge University Press,} p. XI.

63 _{Burgers, L. (2020). Should Judges Make Climate Change Law? Transnational Environmental Law, 9(1), 55-75.} 64 _{Burgers, Ibid, p. 70.}

certain oil and gas extraction licenses, required more political considerations and was more specific than just a general order of emission targets. The Court was thus not allowed to prohibit the grant of these licenses.65 _{This shows the thin line between the allowed considerations of} judges in the political sphere.

The separation of powers would be the main hurdle in adopting this case’s order in other countries such as the United States.66 _{United States law incorporates the political questions}

doctrine which holds that the Court has to refrain from adjudicating issues that would be in the

exclusive discretion of politicians. In the 2011 decision American electric power v. Connecticut, the Supreme Court found the dispute between the largest greenhouse gas emitters

nonjusticiable.67 _{This was because the Clean Air Act delegated the jurisdiction on these kinds of} matters to the Environmental Protection Agency (‘EPA’). A more Urgenda-like approach would be possible in proceedings against the inadequately acting EPA.68

A very interesting case that pursues this more Urgenda-like approach is Climate Case Belgium. After it was initiated in 2014, a 3-year dispute on the process language of the case followed. Finally, the Court will decide on the matter in the autumn of this year. The Belgian governments argue that “positive obligations leading from the ECHR articles are not directly applicable in

Belgium since they are too abstract”.69 _{Since Belgium and Dutch law are rather similar, there is} a high probability that the Urgenda approach will be used to interpret the European positive obligations which will hopefully turn to a positive outcome.

3.2 The importance of the duty of care under Dutch law

It made sense for Urgenda to base the climate change litigation on tort law rather than

administrative law since the current climate change laws were insufficient to address the problem of global warming. International climate laws were domestically non-existent and there is no international enforcement mechanism. Since the Dutch law incorporates a general duty of care, this constituted an opportunity for climate litigation.70 _{It is an open norm that must be assessed} according to the circumstances of the case. Important factors for this case are that (i) the perpetrator has to take measures to prevent the occurrence of harm; (ii) the probability of the occurrence of harm; (iii) and the cost-benefit ratio of these measures. Since the duty of care is an open norm, the Court assessed if the international consensus on emission reduction could be used to explain the scope of the open norm and whether that would be satisfactory in this case.

Besides the international consensus, several principles leading from the UNFCCC such as the right to protection of the climate for current and future generations, the precautionary principle and the sustainability principle could also form an inspiration for the assessment of the duty of care. The Court also found a duty of care connected to the no harm principle in customary

international law. Even though the no harm principle addresses the occurrence of harm caused by one state that injures another state, it can still be used to stress the importance of preventing

65 _{Oslo District Court, 4 Jan. 2018, Case No. 16-166674TVI-OTIR/06, Greenpeace Norway v. Norwegian State, para. 5.2.7.} 66 _{Stein E., and Castermans A. G. (2017) 316/317.}

67 _{United States Supreme Court, 20 June 2011, Case no. 564 US 410, American Electric Power v. Connecticut.} 68 _{Stein E., and Castermans A. G. (2017), p. 317.}

69 _{Conclusions De Synthèse La Région De Bruxelles-Capitale v. Klimaatzaak. Tribunal De Première Instance Francophone De} Bruxelles 4 Ème Chambre R.G. n° 15/4585/A, par 181.

global warming and to indirectly contribute to the open norm based on the reflex-effect or the common ground method.71

On the one hand, in the United States (‘US’), who has a public trust obligation in its constitution, judges would be able to adopt a similar approach to the Urgenda judgement through a duty of care.72 _{According to Peel and Osofsky, - professors in international law who wrote the book}

climate change litigation - the public trust doctrine holds that the government owns certain

natural resources and has trust obligations to the public to preserve them for public use and benefit.73 _{Even though this could be sufficient ground for action, federal sovereignty stands in} the way of using tort as a legal basis for climate change adjudication in the US system and its political questions doctrine.

On the other hand, the United Kingdom (‘UK’) for example includes a better system for using tort against the government. However, in the UK, a proximity between the claimant and the defendant as well as foreseeability are needed to establish a duty of care. It is therefore likely that the causal link has not been sufficiently addressed in the Urgenda-case to make it transferable to the UK.74 _{Since in the Urgenda-case, an order is given to cease harmful and unlawful acts, the} causality did not have to be established.75 _{However, even though the entire line of reasoning} cannot always be transplanted into other legal systems, it is still possible to indirectly influence open norms in other climate litigation cases as it is another argument for the international consensus on the topic of climate change.

3.3 Human rights connected to climate change

The fact that the Court had held the government individually responsible for its national contribution to global greenhouse gas emissions from its territory and its failure to implement suitable mitigation measures was just as extraordinary as the central role of human rights in the Case. In combination with the governments’ obligation of care, this was stated as an important ground for future climate change litigation.76

No case where a party relied on human rights to plea for action in reducing emissions had succeeded before this case.77 _{Therefore, the jurisprudence from Urgenda paved the way for} environmental law judgements in other jurisdictions. The human rights approach could mainly be argued in ECHR Member States, where its reception would depend on the direct effect of ECHR rules in that particular state. Even though the ECtHR has not recognized a straightforward right to a healthy environment, it declares that lagging environmental protection can negatively impact other human rights.78 _{Furthermore, other international institutions did confirm the right to} a healthy environment. After the Court of Appeal judgement, the Human Rights Committee

71 _{See paragraph 2.3 and 2.4 above.}

72_{Van Zeben, J. (2015). Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?}

Transnational Environmental Law, 4(2), 339-357. doi:10.1017/S2047102515000199, p. 350.

73 _{Peel, J., & Osofsky, H. (2015) p.82.} 74_{Van Zeben, J. (2015) p. 352.} 75 _{Bleeker T (2018).}

76 _{Stein E., and Castermans A. G. (2017), p. 305} 77 _{Stein E., and Castermans A. G. (2017), p. 317.}

78 _{Peel, J., & Osofsky, H. M. (2018). A rights turn in climate change litigation?. Transnational environmental law, 7(1), p. 64;} ECtHR, 22 May 2003, App. No. 41666/98, (Kyrtatos v. Greece), para. 52.

published a comment holding the right to life as stated in the International Covenant on Civil and Political Rights (‘ICCPR’) - which the Netherlands has ratified - also includes positive

obligations for states to act against dangerous climate change.79 _{The case Ioane Teitiota v. New} Zealand shows that the Human Rights Committee takes the next step in climate change litigation and calls for protection of refugees due to climate migration, an issue which is no longer just a future problem.80

According to Viñuales and Dupuy, - professors in international law and authors of International

Environmental Law - the OHCHR analytical study identified the benefits of using human rights

to ensure environmental protection.81 _{Firstly, human rights holders can be specifically identified,} which is harder to establish with environmental laws that do not address a right holder. Secondly, these right holders are able to ascertain their rights before a “growing number of adjudicatory (and quasi-adjudicatory) bodies” whereas such a procedure is not (or hardly) available in

environmental law.82 _{Thirdly, human rights are considered to be of high value which means that} they have an urgent social and political incentive to change ways. But it is highly important for such a procedure that a causal link between climate degradation and human rights is established. This means in what way the State would be responsible for climate change leading to the danger of losing life or family life.83 _{An important source for this causality is the IPCC. Their reports} show the scientific evidence that emissions lead to global warming and the effect that global warming has on the living environment. However, establishing a specific causal link between one state’s emissions and a certain effect of climate change is unthinkable.

An example in this context is an Australian case where the State is held accountable for damages that resulted from the grave forest fires of the beginning of 2020.84 _{Bush fire survivors,}

represented by the Environmental Defenders Office, hold that the bush fires have been more intense due to climate change and seek orders that the Environmental Protection Authority (‘EPA') should develop sufficient objectives, guidelines and policies to ensure environmental protection - as they are obliged to do under the Environmental Operations Act 1997. It might be hard to establish the causal link in this case since the forest fires are very specific occurrences. However, as the claim holds that EPA should be ordered to create sufficient legislation, the Court could follow the Dutch judges and argue that causality between the insufficient regulation and de forest fires might not even be needed. Even though EPA declares it has no specific obligation to create legislation under the Operations Act and the claim is thus unfounded, the

79 _{Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant on Civil and} Political Rights, on the right to life, para 62; Reeh, G., Climate Change in the Human Rights Committee, February 18 2020. Accessed via <https://www.ejiltalk.org/climate-change-in-the-human-rights-committee/>.

80 _{Human rights committee, 24 October 2019, ICCPR no. 2728/2016.}

81 _{Dupuy, P. M., and Viñuales, J. E. (2018). International environmental law. Cambridge University Press, p. 179;}

Office of the High Commissioner for Human Rights (OHCHR), Analytical study on the Relationship between Human Rights and the Environment, 16 December 2011, UN Doc. a/HRC/19/34.

82 _{Dupuy, P. M., and Viñuales, J. E. (2018). p. 179.}

Office of the High Commissioner for Human Rights (OHCHR), Analytical study on the Relationship between Human Rights and the Environment, 16 December 2011, UN Doc. a/HRC/19/34.

83 _{Dupuy P.M., and Viñuales J. E. (2018) p. 394; Albers, J. H. (2018). Human Rights and Climate Change: Protecting the Right} to Life of Individuals of Present and Future Generations. Security and Human Rights, 28(1-4), 113-144.

84 _{Summons at The Land and Environment Court of New South Wales, 08 May 2020, Bushfire Survivors for Climate Action}

Incorporated v. Environmental Protection Authority, case no. 2020/00106678; Points of defence at The Land and Environment Court of New South Wales, 5 June 2020, Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority, case no. 2020/00106678. No court order has been issued yet. On the website <climatechangechart.com> a small overview of global climate change litigation is provided.

Urgenda judgement could inspire the court to use the precautionary principle and the

documentation of the IPCC as grounds for the order. Moreover, Australian law even contains a duty of care although its threshold is higher than the Dutch meaning.85 _{An important}

consideration is whether the Court of New South Wales could issue the order while staying within the limits of the separation of powers.

Thus, it seems that the Urgenda judgement was among the first cases on this topic and gave citizens in other jurisdictions the tools and the courage to commence litigation against their governments. In 2015, almost seven hundred climate claims had been issued.86 _{This brings me to} another question. How come that many states do not implement international climate agreements out of their own initiative?

4. Why was the case needed?

Other aspects than just the Dutch political choices played a role in the lagging Dutch climate regulation. The following section looks into the role that international agreements played in the lagging Dutch climate regulation and stretches the gap that the Urgenda-case is supposed to fill. This gap surely exists in other legal systems as well which is another reason the Urgenda-case could play a significant role in international climate litigation.

4.1 The urgent need for measures

Since there is no specific knowledge of the effects of climate change, the problem is not tangible. States rather deal with current problems so people will see what their money is invested in. Despite many scientific researches, the uncertainty of actual climate effects led to governments underestimating its urgency or even - such as president Trump, who once claimed that climate change was a hoax - denying that climate change exists at all. The Urgenda-case was especially needed because it had been shown that Dutch climate plans were all aimed at 2030. The urgency of the problem had to be visible and action needed to be taken as soon as possible. Adequate targets for 2020 were thus deemed necessary.87 _{Other legal frameworks also show that climate} targets and frameworks are high on the agenda but sufficient action is still lagging. Why?

4.2 The reluctant role of the UNFCCC

The United Nations Framework Convention on Climate Change (‘UNFCCC’) was developed in 1992 and meant to consider the differences in responsibility of countries since they contributed in their own manner to the GHG emissions. The UNFCCC specified sources of emissions that had to be limited. As the Netherlands is a party to the UNFCCC, it has to commit to its principles such as the precautionary principle, the principle of intergenerational equity and the principle of common but differentiated responsibilities. As referred to in the Case, the Convention calls for wide cooperation and all parties should take measures and develop policy to anticipate, prevent or minimize causes of climate change. Annual COP’s show the international consensus on this

85 _{High Court Australia, 26 August 1999, Perre v Apand, Case No. HCA 36, (1999) 198 CLR180.} 86 _{Peel, J., & Osofsky, H. (2015) p. XI.}

topic. One of the key instruments that arose from the UNFCCC, is the Kyoto Protocol in 1997.88 However, since Russia, Canada and Japan refused to accept a new commitment period in 2011, the relevance of this protocol lost its importance for future climate cases.89 _{The Protocol contains} a top-down approach which has been deemed unsuitable as a response to air pollution and

climate change. 90 _{It allowed for flexibility mechanisms holding that states can purchase carbon} units abroad, stimulate the private sector to use carbon credits and incentivize domestic

emissions reduction through climate policies.91

In 2013, the PBL acknowledged the Netherlands had met the reduction targets from the Kyoto protocol; reduction of GHG emissions with 6% compared to 1990 standards.92 _{Due to the} flexibility mechanisms of the Protocol, the national reduction efforts could be lessened if the carbon units were traded with other states. This is also one of the key aspects of the European Emission Trading System. Many private companies that fell within the ETS system had the responsibility of giving up their emission rights. The non-ETS sector - for example agriculture - falls under the government's responsibility, who reduced emissions but still had to buy emission space from other states to reach the Kyoto target.

Due to the economic crisis of 2008, ETS companies were able to sufficiently reduce emissions.93 After equalizing their emission rights through trade, Dutch ETS companies had 44 million spare emission rights. In 2013, the Dutch government expected to have 18 million spare emission rights in the non-ETS system due to successfully buying them from foreign projects. The trade in emission rights will also be an important theme of this year's - postponed - COP in Glasgow.94 The ability to trade emission rights shows that working towards a target and solving a problem is not the same thing. The - heretofore - reluctant Dutch approach will lead to measures that only work on the short term and fail to address the occurrence of future problems since they are only aimed at reaching the number that is set as a target. External influences such as the current economic setback or the purchase of emission space will help in reaching the target but will not change the way in which the system works. Each legal system should implement measures that work best in that system. Therefore, a structural effort had to be made to attack the problem of climate change in a bottom up approach. COP 21, the Paris Agreement has been a breakthrough meeting in this effort.

88 _{UNFCCC (1997) Kyoto Protocol to the United Nations Framework Convention on Climate Change adopted at COP3 in Kyoto,} Japan, on 11 December 1997.

89 _{Dupuy, P. M., & Viñuales, J. E. (2018), p. 179.} 90 _{Dupuy, P. M., & Viñuales, J. E. (2018), p.180.}

91 _{Shishlov, I., Morel, R., & Bellassen, V. (2016). Compliance of the Parties to the Kyoto Protocol in the first commitment} period. Climate Policy, 16(6), p. 775.

92 _{Verdonk M., (2013) The Netherlands reach Kyoto, emission trading create important contribution (Nederland haalt Kyoto,}

emissiehandel levert belangrijke bijdrage), PBL Publication number 1240. Accessed via:

<https://www.pbl.nl/publicaties/nederland-voldoet-aan-de-kyoto-verplichting-uitstoot-broeikasgassen>.

93 _{Climate and energy outlook 2019, PBL publication number: 3825; Boot, P., (2020) The influence of the coronavirus on the} Dutch greenhouse gas emissions (De invloed van het coronavirus op Nederlandse broeikasgasemissies 2020), PBL publication number 4173, p. 17.

94 _{Foreign news editors, Klimaattop Madrid: akkoord bereikt, maar belangrijkste beslissing uitgesteld, December 15 2019,} accessed via: <https://www.topics.nl/klimaattop-madrid-akkoord-bereikt-maar-belangrijkste-beslissing-uitgesteld-a13778590ad/?context=zoek%2Fartikels%2F%3Fquery%3DCOP%2520klimaat%26offset%3D0>.

4.3 The central role of the Paris Agreement

Considering the Paris Agreement (‘the Agreement’) was concluded after the first handling of Urgenda, it only influenced the appeal. In the coalition agreement of 2017, the State recognized the importance of reaching its goals.95 _{The Agreement is an important framework for}

coordination and implementation of climate measures at the domestic level. Mainly because the United States could not consent to a treaty that would be internationally binding, the Agreement leaves the determination of national contributions up to states and therefore became just

domestically binding.96 _{Another reason the Agreement could not be made internationally} binding, was because states did not want to partly give up their sovereignty.97

The Agreement is primarily a document of good intentions since it has no enforcement mechanisms.98 _{Many governments, such as the Dutch, used the non-ratification of the biggest} emitters as an excuse for its own inaction. Since states do have to implement climate measures at the domestic level to be enforceable, inaction could stay a problem. This enhances the

importance of a sufficient domestic right to a practically and legally effective remedy that follows from article 13 ECHR:

The right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been

committed by persons acting in an official capacity.

In the implementation of the Paris Agreement, the Urgenda-case could serve as the necessary link between the Target and the implementation of measures to incite both the Netherlands and other states to comply with their obligations.

From the other perspective, the Paris Agreement can be used to show the political will to reduce emissions and influenced societal values concerning climate change. Justice Preston - Chief Judge of the Land and Environment Court of New South Wales - elaborates on the “ripple effect” of the Paris Agreement and the litigation that incorporates it. Step by step, states will inspire each other to start implementing climate regulation.99 _{Under the Paris Agreement, states} have an obligation to give legal effect to the Agreement.100 _{Therefore, the Paris Agreement could} be seen as the start of this ripple effect.

4.4 The important role of litigation in climate change

In 2015, before the Urgenda proceedings, Peel and Osofsky named three arguments in favor of climate litigation. Firstly, there is a need for domestic litigation since international regulatory

95 _{Court of Appeal, para 25.}

96 _{Preston B. J., (2019). The impact of the Paris Agreement on Climate Change Litigation and Law. University of Dundee, United} Kingdom, p. 2.

97 _{Bodansky, D. (2016). The legal character of the Paris Agreement. Review of European, Comparative & International} Environmental Law, 25(2), 142-150; Dupuy, P. M., & Viñuales, J. E. (2018), p. 190.

98_{Slaughter, A. M. (2015). The Paris approach to global governance. Project Syndicate, 28, 15-12, accessed via:}

<https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-governance-by-anne-marie- slaughter-2015-12>.

99 _{Preston B. J., (2019), p. 51.} 100_{Preston B. J., (2019), p. 8.}