Urgenda and Dutch Dikastophobia: Is this the end of public interest litigation for the enviroment, and the end of article 3:305A dutch civil code?
In recent years, the domestic courts of the Netherlands have produced a series of judgments, all relating to general issues of global concern, which have been praised by international lawyers from all over the world. In the Mothers of Srebrenica case, the Netherlands was held responsible for the failure of a United Nations peacekeeping mission. The failure to protect Bosnian Muslims from the Bosnian Serbs was regarded as a breach of Article 2 (right to life) of the European Convention on Human Rights (ECHR). In the SyRI case (only available in Dutch), an automated algorithmic system designed to detect and analyse welfare fraud was held to be in breach of Article 8 ECHR (right to private life). The best-known example is the Urgenda case, in which a failure of the Government to take appropriate measures against the threat of dangerous climate change was held to constitute a breach of Articles 2 and 8 ECHR (right to life and well-being).
All these cases were instituted by foundations, claiming to act in the common interest. Such claims are based on Article 305a of Book 3 Dutch Civil Code (in short “3:305a Civil Code”). This provision is introduced first (section 2); immediately followed by an explanation how it is used as legal basis for public interest litigation (section 3). All rulings mentioned above are considered highly “political”, and thus the court responsible for these rulings is often accused of trespassing into the realm of politics. This controversy, i.e. of the judge as lawmaker, is discussed next (section 4). I will then zoom in on the Urgenda case, as an example of public interest litigation for the environment on the basis of 3:305a Civil Code (section 5); and end with a look into the future of public interest litigation for the environment on the basis of Article 3:305a Civil Code (section 6).