All posts by Dina Townsend

Carbon Majors inquiry – London hearings and student competition

The London hearings of the Carbon Majors inquiry http://essc.org.ph/content/nicc/ will take place this week at the London School of Economics.

Joana Setzer and Annalisa Savaresi have written a short blog post on what to expect from the hearings. The blog includes information on how to follow the live webcast. You can access the blog here: http://www.lse.ac.uk/GranthamInstitute/news/the-carbon-majors-inquiry-comes-to-london/

The hearings will conclude on Thursday 8th November with a public debate, where Commissioner Cadiz, Luke Harrington, Kristin Casper, Joana Setzer, Stephen Humphreys and I will reflect on the theme of ‘Human Rights and Climate Change’. You can find the details on how to attend here:  http://www.lse.ac.uk/GranthamInstitute/event/human-rights-and-climate-change/.

A recording of the event will be available here: http://www.lse.ac.uk/lse-player?category=public+lectures+and+events

At the event,  a student competition to support the drafting of the Philippines Human Rights Commission’s recommendations will be launched. The competition is supported by the Institute of Environmental Science for Social Change in the Philippines, the London School of Economics and Political Science, and the University of Stirling. Details of the competition are available here: http://essc.org.ph/content/student-competition

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Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren

This blog post was originally published on the Tilburg University Environmental Law Blog

Today, the Higher Court in the Dutch city of The Hague rendered its judgement in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Higher Court today rejected all objections by the State in firm and straightforward language. The Higher Court stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention of Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Higher Court, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the COconcentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Higher Court briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44)

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs, courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers, on the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved.

In remarkably clear language, the Higher Court rejects all objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Higher Court invokes the precautionary principle. The Higher Court stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have proactive climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Higher Court argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case.” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more as within the EU, climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Higher Court considers it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Higher Court simply rejects this by referring to the special position of the Netherlands as a rich, developed state, that has gained much of its wealth through extensive use of fossil fuels. Quite humorful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Higher court!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Higher Court simply refers to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Higher Court does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

Today the Dutch Higher Court followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

Feature image: Dina Townsend

 

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New edition of the JHRE

The latest edition of the Journal of Human Rights and the Environment is now out! The theme of the edition is Indigeneity, Human Rights and the Environment:

You can read more about this latest edition (including two open access articles here)

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Open letter from UK academics: The harsh sentencing of anti-fracking campaigners sets a dangerous precedent

[This letter was originally titled ‘Open letter from University of Sussex academics: The harsh sentencing of anti-fracking campaigners sets a dangerous precedent’. Although signers from other organisations have always been welcome, given the overwhelming support, we have officially opened it up to academics from across the country (and international allies) who wish to express their concern. The full letter including the list of signatories can be found here.]

We the undersigned are writing to express our growing concern about the shrinking space for communities and environmental defenders to engage in civil opposition to fracking developments in the UK.

This week three non-violent campaigners opposing fracking were jailed for 15 to 16 months simply for ‘causing a public nuisance’ and for not expressing regret. Although others have received jail sentences in more recent times, this is the first time since 1932 that environmental defenders have been imprisoned for such long periods of time for staging a protest in the UK. It is also the first time ever that activists have been jailed for anti-fracking actions.

With fracking companies increasingly granted civil injunctions to prevent protest, the scope of protest is becoming more and more restricted, representing a threat to fundamental rights to freedom of expression and assembly.

Fracking is controversial in the UK. According to government surveys conducted in 2017, only 16% of people support fracking development. Given the grave environmental consequences of hydraulic fracturing and growing concerns about climate change, this is not surprising.

The ruling sets a worrying precedent, curtailing opportunities for the kind of public protests that have historically been effective in instituting the legal and policy changes that defend our environment for our future generations. We need more, not less, space for action to confront unsustainable industrial practices that harm our communities and perpetuate our reliance on fossil fuels.

We oppose this absurdly harsh sentence and join calls for an inquiry into the declining space for civil society protest that it represents.

More information is available at the supporters’ web site at http://frackfreefoursupporters.org/

RECENT MEDIA COVERAGE

The Independent UK:
Anti-fracking activists jailed for ‘causing a public nuisance’ during four-day protest https://ind.pn/2OAa18F

Fracking protesters’ ‘absurdly harsh’ jail sentences sparks calls for judicial review backed by hundreds of scientists https://ind.pn/2OylGEY

The Guardian:
Four anti-fracking activists face prison over protest http://bit.ly/2Ox9pQQ

You can sign the letter here: 

https://docs.google.com/forms/d/e/1FAIpQLScmXGgV93AycjcfbWmWBQ_7eYxbI69n5PIQhM_0B9kF1qMSaA/viewform

Featured image: geography.org.uk

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Second Annual Animal Welfare and International Law Seminar

On the 10th of October 2018, the Regional African Law and Human Security project (RALHUS) and Lincoln Law School, UK present the Second Annual Animal Welfare and International Law Seminar.

Programme:

9:30 WELCOME AND INTRODUCTION
Duncan French, Head of Lincoln Law School, UK

9:40 SHIFTING NORMS IN WILDLIFE PROTECTION AND EFFECTIVE REGULATORY DESIGN
Steven White, Griffith University, Australia

10:30 ENVIRONMENTAL JUSTICE FOR ANIMAL VICTIMS: RECOGNISING THE EXTENT OF WELFARE HARMS TO ANIMALS IN WILDLIFE CRIME
Amanda S Whitfort, The University of Hong Kong

11:20 COMFORT BREAK

11:40 EARTH V HUMANITY: BIODIVERSITY FOR WHOM AND BY WHOM?
Gay Morgan, The University of Waikato, New Zealand

12:30 LUNCH

13:30 ANIMAL WELFARE, BIODIVERSITY CONSERVATION AND HUMAN WELLBEING: JOINING THE DOTS IN SOUTH AFRICAN LAW
Michael Kidd, University of KwaZulu-Natal, South Africa

14:20 WELFARE PERSPECTIVES ON TRADE IN RHINO HORN: TOWARDS CONSERVATION, SUSTAINABLE USE AND COMPASSION.
Werner Scholtz, University of the Western Cape, South Africa

15:10 COMFORT BREAK

15:30 THE INFLUENCE OF INTERNATIONAL TRADE ON THE EMERGENCE OF GLOBAL ANIMAL LAW
Iyan Offor, Strathclyde Centre for Environmental Law & Governance, University of
Strathclyde, Glasgow

16:20 WTO LAW, THE ENVIRONMENT AND ANIMAL WELFARE
Katie Sykes, Thompson Rivers University, Canada

17:10 CLOSURE

For more information, please contact Professor Werner Scholtz wscholtz@uwc.ac.za

Feature image: Josh Gellers

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