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New Paper. Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v The Netherlands

With Tim Staal, Laura Burgers wrote a case note to the appeals judgment in the tort case Urgenda v the Netherlands rendered last October. The paper will be printed in The Netherlands Yearbook of International Law 2018 next spring, but is already available on SSRN and the Judges in Utopia website.
The case note deals with inter alia the influence of civil procedure to the outcome of the case.

Abstract of the paper

On 9 October 2018, the Hague Court of Appeal confirmed the first instance judgement rendered in the world-famous Urgenda case: the Dutch State commits a tort by setting a goal for greenhouse gasses emissions reduction of only 20% by the end of 2020, compared to 1990 levels. The State is ordered to raise this goal to at least 25%. Both judgments are heavily criticised by constitutional and administrative law scholars. Most of this critique is ultimately linked to the objection that the Courts overstepped their task in the constitutional separation of powers. With this objection the State also takes the case to the Supreme Court. 

This annotation analyses the appellate court’s decision step by step, pointing out where it differs from the lower court’s decision and engaging with the various critiques. The Court of Appeal directly applies Articles 2 (right to life) and 8 (right to family life) of the ECHR, finds that these rights cover climate change related situations, and on the basis of Dutch civil procedure determines that 25% reduction is the factual minimum to prevent ECHR violations. Although parts of the decision could have been motivated in more detail, the authors conclude that the Court applied the law correctly and that neither the separation of powers, nor the political question doctrine were infringed. 

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