On Thursday, 11 January 2024, 8 Dutch Caribbean islanders filed a lawsuit against the government of the Netherlands over its failure to protect their human rights and to take sufficient climate action.
The plaintiffs include inhabitants of Bonaire, a ‘special municipality’ of the Netherlands; making them Dutch nationals. The plaintiffs are assisted by Greenpeace Netherlands.
In a pre-litigation letter sent on 11 May 2023, the plaintiffs stated that the Dutch government “is obliged to take measures to protect everyone in the Netherlands, including the inhabitants of Bonaire, against dangerous climate change in an effective manner”.
The letter continues by highlighting that the climate action taken by the Dutch government is tailored to the European part of the Netherlands only. As such, the government engaged in “unequal treatment” whereby inhabitants of Bonaire are “second-class citizens”.
There is an urgency behind this lawsuit. Inhabitants of Bonaire are already experiencing the adverse effects of climate change in their day-to-day lives. Temperatures have risen to the point where many inhabitants are unable to leave their homes during certain hours of the day. The weather has become extreme, with periods of heavy rainfall and long droughts.
The Dutch finance secretary, Alexandra Carla van Huffelen, in an official response to the pre-litigation letter, said that the Netherlands shares the concerns of the islanders, but that the current Dutch targets were ‘appropriate’.
Following the government’s response to the claims in the pre-litigation letter, discussions took place in the final quarter of 2023. However, due to the urgency of the matter and the Dutch government’s continued avoidance of responsibility, plaintiffs felt compelled to proceed with its legal challenge.
Violations of Human Rights
As per the pre-litigation letter, the plaintiffs allege that by failing to mitigate the emission of greenhouse gases, the Dutch government is in breach of its duty of care under Articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). These are the right to life and the right to respect for private and family life respectively.
Importantly, the lawsuit goes beyond breaches of Articles 2 and 8. The Netherlands has had a presence on Bonaire for 400 years, and only in 2010 did the island gain its independence from the Dutch colonial administration. Moreover, it’s only been a little over a year since Dutch Prime Minister Mark Rutte issued a public apology for the role of the Netherlands in the enslavement of people in its former colonies, including Bonaire.
This context is of importance, since the complete lack of research into the impact of climate change on Bonaire and the absence of any meaningful action to include Bonaire in the Dutch climate action plan, constitutes a potential breach of Article 14 ECHR, the prohibition of discrimination.
Under Article 14 ECHR, a State must not make a distinction between persons under its jurisdiction when safeguarding the rights and freedoms of the ECHR. As Andy Palmen, executive director of Greenpeace Netherlands aptly puts it: “It shouldn’t matter whether you live on Bonaire [or in the European Netherlands]. It’s the Dutch government’s duty to protect all of us from the consequences of the climate crisis”.
Similar European and International Litigation
There are currently several cases pending before the European Court of Human Rights that are also being argued concerning Articles 2, 8, and 14 ECHR. For instance, in Duarte Agostinho and Others v. Portugal and 32 Other States, six Portuguese youth plaintiffs brought the case under the same ECHR articles. Their discrimination argument relies on the young generation experiencing the worst effects of climate change.
Across the globe, a very similar case was argued in Australia. In the Torres Strait Islanders case, eight islanders, Australian nationals, submitted a legal petition against the Australian government, citing rights similar to Articles 2 and 8 ECHR. The petition relied on violations of the International Covenant on Civil and Political Rights (ICCPR), particularly the right to culture (Article 27), the right to be free from arbitrary interference with privacy, family, and home (Article 17), and the right to life (Article 6). With the court deciding in favour of the plaintiffs, this case highlights the vulnerability of islanders and the responsibility governments bear for their island communities.
The Netherlands has had strong climate litigation in the recent past. In 2019, the Dutch government lost the landmark Urgenda case.
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