Climate Change: Dutch Court of Appeal upholds the decision of the Hague District Court in Urgenda Foundation v Kingdom of the Netherlands

The Dutch Court of Appeal (the “Court”) has upheld the 2015 decision of the Hague District Court in the case of Urgenda Foundation v Kingdom of the Netherlands, and ruled that the State (ie the Kingdom of the Netherlands) has a duty of care under Articles 2 and 8 ECHR to its citizens to reduce greenhouse gases by at least 25%, relative to the 1990 emission level. All of the defences raised by the State were dismissed.

In its decision the Court stressed that immediate action is required, noting that the later actions are taken to reduce emissions, the more ambitious measures will need to be in the future. In addition, the court held that the State cannot hide behind the EU level reduction target of 20% by 2020, especially as the EU as a whole is expected to achieve a reduction of 26-27% in 2020.

The Court held that by not taking action to reduce emissions by at least 25% by end-2020 the State fails to fulfil its duty of care to its citizens pursuant to Articles 2 and 8 ECHR. A reduction of 25% should be considered a minimum as recent insights about an even more ambitious reduction in connection with the 1.5°C target have not even been taken into consideration.

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The erosion of state and diplomatic immunity by European law? Two recent English Court of Appeal cases

In the case of (1) Benkharbouche and (2) Janah v (1) Embassy of the Republic of Sudan and (2) Libya, the English Court of Appeal (the Court) considered the claims by employees of the embassies of Sudan and Libya, that s16(1)(a) and 4(2) of the English State Immunity Act 1978 (the SIA) were incompatible with Art. 6 of the European Convention on Human Rights (the ECHR) and Art. 47 of the Charter of Fundamental Rights of the European Union (the EU Charter). Both Art. 6 and Art. 47 relate to the right to a fair trial.

In its judgment of 5 February 2015, the Court determined that ss.4(2) and 16(1)(a) were incompatible with Art. 6 of the ECHR and a declaration of incompatibility would be made indicating to Parliament that the SIA requires amendment. Further, the Court found that these sections also violated Art. 47 of the EU Charter and that they should be disapplied where the claimants’ claims were derived from EU law measures. As described in more detail below, the Court’s decision indicates that state bodies and diplomatic missions that anticipate benefitting from immunity under the SIA may find that such immunity does not shield them from civil law claims, where it is incompatible with provisions of EU law. This case arose in the context of employment claims against the embassy employers but its application may be felt more broadly in other civil claims which are derived from EU law.

In another recent case involving employment claims, Reyes and Anor v Al-Malki and Anor, the respondent Saudi diplomatic agent and his wife claimed diplomatic immunity pursuant to Arts. 31 and 37 of the Vienna Convention on Diplomatic Relations 1961 (the Vienna Convention). In contrast to Benkharbouche (in which the focus of the Court’s consideration was the UK domestic law, the SIA), the Court of Appeal in Reyes was considering international law. In its judgment in Reyes of 5 February 2015, the Court found that: the claims brought were covered by diplomatic immunity pursuant to the Vienna Convention, on the basis that the activity of employing someone was incidental to life as a diplomatic agent for which the immunity was granted; the Vienna Convention remains an authoritative statement of international law on diplomatic immunity; the compatibility of the limitation on access to a court with the state’s international law obligations was determinative as to whether the restriction on access to a court was proportionate; and those obligations were not incompatible with Art. 6 of the ECHR.

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