Rb. Den Haag, 28-01-2026, nr. C/09/659832 / HA ZA 24-53 (English translation)

The United Nations Framework Convention on Climate Change (UNFCCC) (hereinafter: the UN Climate Convention) of 199243.forms the basis for the UN agreements on reducing greenhouse gas emissions referred to below. The vast majority of the international community – 198 countries, including the Netherlands – has ratified this convention.

The aim of the UN Climate Convention is to stabilise greenhouse gas concentrations in the atmosphere at a level that prevents dangerous human interference with the climate system. This level must also be achieved in time, i.e. within a timeframe that allows ecosystems to adapt naturally to climate change. This will safeguard food production and ensure that economic development remains sustainable.44.

All member states of the UN Climate Convention are committed to protecting the climate system for the benefit of current and future generations. It has been agreed that rich, developed countries will take the lead in combating climate change and its adverse effects, because they contributed more to greenhouse gas emissions in the past and, partly as a result, now have more resources at their disposal than less developed countries.45.These rich countries, including the Netherlands, are listed in Annex I to the UN Climate Convention; the court refers to this group of countries as ‘Annex I countries’ below.

The member states have agreed to take precautionary measures to anticipate, prevent or mitigate the causes of climate change and to limit the adverse effects of climate change. Climate policy and measures must take into account the various socio-economic contexts, be comprehensive and cover all economic sectors and (the adaptation of) all relevant sources, sinks and reservoirs of greenhouse gases.46.

Furthermore, member states should cooperate in preparing for adaptation to the effects of climate change. They must draw up and implement appropriate and integrated plans for the management of coastal areas, water resources and agriculture, and for the protection and restoration of areas affected by drought, desertification or flooding.47.They must also take climate change into account in their policies and actions in the social, economic and environmental fields. Annex I countries must assist developing country member states, as they are particularly vulnerable to the adverse impacts of climate change, by supporting their adaptation costs.48.

When formulating all their climate policies and taking climate measures, member states must use appropriate methods, for example by carrying out environmental impact assessments at national level. Member states are expected to promote scientific, technological, technical, socio-economic and other research to remove the remaining uncertainties about the causes, consequences, extent and progression of climate change.49.

Although there is much uncertainty in climate change predictions – particularly regarding its progression, extent and regional patterns – the member states have agreed in the UN Climate Change Convention that they may not use these uncertainties as an argument for postponing action.50.

The ‘Conference of the Parties’ (hereinafter: COP) is the highest decision-making body within the UN Climate Convention.51.Almost every year, the COP organises a climate conference where member states take joint decisions and formulate new policies

The member states of the UN Climate Convention must draw up national inventories of anthropogenic greenhouse gas emissions by source and removals by type of carbon sink. They must also use comparable calculation and administration methods agreed by the COP to ensure that the data are comparable. The inventories must be updated periodically, made public and made available to the COP. Member states must also draw up national programmes with measures to mitigate climate change, focusing on emissions by source and removals by type of carbon sink for all greenhouse gases, and must periodically review and update their own policies and practices.52.

Finally, member states have recognised the importance of involving citizens and civil society organisations in efforts to mitigate the negative effects of climate change. The member states have therefore agreed to ensure that the wider public has access to information on climate change and its effects, in order to enable broad participation in combating climate change and its impacts.53.

ii. Kyoto Protocol 1997

During the third COP climate conference (COP3) in Kyoto, Japan, the member states of the UN Climate Convention reached agreement on the Kyoto Protocol.54.This protocol entered into force on 16 February 2005.55.Among other things, the protocol set new, more specific reduction targets for the period 2008-2012. For Annex I countries such as the Netherlands, the following requirements were established:

“Article 3 Kyoto Protocol

1. The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5% below 1990 levels in the commitment period 2008 to 2012.

(…)”

Cancún Adaptation Framework 2010

During COP16 in Cancún, Mexico, the member states noted that the effects of climate change were already becoming tangible worldwide in the form of changes in average temperature, shifts in seasons, an increasing frequency of extreme weather events and the start of ‘slow onset events’56.. They concluded that the faster the climate changes and the longer adaptation efforts are delayed, the more difficult and expensive it will be to tackle climate change. The member states therefore decided to establish the Adaptation Committee. This committee oversees the implementation of the Cancún Adaptation Framework57.and provides knowledge and technical support to the member states.

In the Cancún Adaptation Framework, the member states paid particular attention to developing countries and ‘the particularly vulnerable people in the world’, as they were already experiencing the negative effects of climate change at that time.

iv. Paris Agreement 2016

On 22 April 2016, the twenty-first conference of the COP (COP21) led to the Paris Agreement.58.With this Agreement, the member states wanted to improve the goals and implementation of the UN Climate Convention, including by:

These agreements must be implemented on the basis of equity and the principle of common but differentiated responsibilities and capabilities, taking into account different national circumstances.59.

All member states must in any case strive to ensure that the global greenhouse gas emissions is reached as soon as possible and that emissions are subsequently rapidly reduced in accordance with the best available scientific knowledge. In concrete terms, a balance between greenhouse gas emissions and capture/storage must be achieved in the second half of this century, i.e. from 2050 onwards. The guiding principles in all of this are equity, sustainable development and efforts to eradicate poverty.60.

In order to achieve the goal of the Paris Agreement, all member states must make ambitious efforts and also publicly report on these efforts. The Agreement describes how efforts should be reported.

The Agreement gives member states considerable freedom in determining exactly what measures they want to take as part of their national efforts; however, these national efforts must show progress over time.61.Annex I countries must set absolute emission reduction targets for their entire economy.62.

In order to monitor progress on the national contributions, each member state must report every five years on the nationally determined contributions it intends to achieve. Member states must take national mitigation measures to achieve the targets of their national contributions. They must also keep track of these contributions, taking into account subsequent decisions of the COP and the results of interim reviews (‘Global Stocktakes’).63.

Each subsequent nationally determined contribution by a member state must reflect the highest possible level of ambition and go beyond the previous nationally determined contribution it has reported.64.

All member states must formulate long-term strategies for low greenhouse gas emission-based development; they must also communicate these long-term strategies to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC).65.

Annex I countries must take the lead by setting absolute emission reduction targets for their entire economies.66.

Member states must also report on their nationally determined contributions. They must do so in a transparent, accurate, complete, comparable and consistent manner; double counting must be avoided.67.However, add-on mitigation benefits – for example, as a result of adaptation measures or economic diversification plans – may contribute to the mitigation results that the member states must track and report.68.

Furthermore, msmber States must provide the following information every five years69.:

The information provided should be as clear and transparent as possible in order to facilitate its understanding. Member states agreed that this meant that communications should, where applicable, include quantifiable information on the reference point (including, where applicable, a base year), timeframes and/or periods for implementation, scope and coverage, planning processes, assumptions and methodological approaches, including those for estimating and accounting for anthropogenic greenhouse gas emissions and, where applicable, removals, and how the member state considers its nationally determined contribution to be equitable and ambitious, in light of its national circumstances, and how it contributes to achieving the agreed temperature goal.71.

In the Paris Agreement, the member states also made further commitments on adaptation, based on the importance of preventing, minimising or addressing damage and loss caused by climate change. They recognised that adaptation has local and sub-national dimensions and that it is an essential component of the global long-term approach to climate change in order to protect people, livelihoods and ecosystems. The member states committed to working together and taking into account the urgent and immediate needs of countries that are particularly vulnerable to the adverse effects of climate change.72.

When taking adaptation measures, member states should follow a country-driven, participatory and fully transparent approach, taking into account vulnerable groups, communities and ecosystems. Adaptation measures should be based on the best available scientific knowledge, indigenous peoples’ knowledge and local knowledge systems to ensure that adaptation is properly integrated into relevant socio-economic and environmental policies and measures.73.

Member states may cooperate in implementing the Paris Agreement. They may do so by concluding an agreement and notifying the COP Secretariat of the provisions of that agreement. The agreement must specify the emission level allocated to each participating member state within the relevant period. Member states that are parties to such a cooperation agreement remain responsible for their own emission levels.74.

The member states of the European Union (EU) are parties to the Paris Agreement and have concluded a cooperation agreement. The EU is also an independent party to the Paris Agreement.

v. Glasgow Climate Pact

In the climate conferences held since the Paris Agreement, the climate targets set out in the Paris Agreement have been repeatedly confirmed and even tightened. For example, at COP26 in Glasgow, United Kingdom, in 2020, the parties to the agreement confirmed in the Glasgow Climate Pact that the COP:75.

“I. Science and urgency

1. Recognizes the importance of the best available science for effective climate action and policymaking;

(…)

3. Expresses alarm and utmost concern that human activities have caused around 1.1 °C of warming to date,76.that impacts are already being felt in every region and that carbon budgets consistent with achieving the Paris Agreement temperature goal are now small and being rapidly depleted;

4. Recalls Article 2, paragraph 2, of the Paris Agreement, which provides that the Paris

Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities in the light of different national

circumstances;

5. Stresses the urgency of enhancing ambition and action in relation to mitigation, adaptation and finance in this critical decade to address the gaps in the implementation of the goals of the Paris Agreement;

II. Adaptation

6. Notes with serious concern the findings from the contribution of Working Group I to the Intergovernmental Panel on Climate Change Sixth Assessment Report, including that climate and weather extremes and their adverse impacts on people and nature will continue

to increase with every additional increment of rising temperatures;

7. Emphasizes the urgency of scaling up action and support, including finance, capacity

building and technology transfer, to enhance adaptive capacity, strengthen resilience and

reduce vulnerability to climate change in line with the best available science, taking into

account the priorities and needs of developing country Parties;

(…)

IV. Mitigation

20. Reaffirms the Paris Agreement temperature goal of holding the increase in the global

average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to

limit the temperature increase to 1.5 °C above pre-industrial levels;

21. Recognizes that the impacts of climate change will be much lower at the temperature

increase of 1.5 °C compared with 2 °C and resolves to pursue efforts to limit the temperature

increase to 1.5 °C;

22. Recognizes that limiting global warming to 1.5 °C requires rapid, deep and sustained

reductions in global greenhouse gas emissions, including reducing global carbon dioxide

emissions by 45 per cent by 2030 relative to the 2010 level and to net zero around mid

century as well as deep reductions in other greenhouse gases;

23. Also recognizes that this requires accelerated action in this critical decade, on the basis

of the best available scientific knowledge and equity, reflecting common but differentiated

responsibilities and respective capabilities in the light of different national circumstances and in the context of sustainable development and efforts to eradicate poverty;

24. Welcomes efforts by Parties to communicate new or updated nationally determined

contributions, long-term low greenhouse gas emission development strategies and other

actions that demonstrate progress towards achievement of the Paris Agreement temperature

goal;

25. Notes with serious concern the findings of the synthesis report on nationally determined contributions under the Paris Agreement, according to which the aggregate greenhouse gas emission level, taking into account implementation of all submitted nationally determined contributions, is estimated to be 13.7 per cent above the 2010 level in 2030;

26. Emphasizes the urgent need for Parties to increase their efforts to collectively reduce

emissions through accelerated action and implementation of domestic mitigation measures

in accordance with Article 4, paragraph 2, of the Paris Agreement;”

Sharm el-Sheikh Implementation Plan

In late 2022, the COP confirmed the above in the Sharm el-Sheikh Implementation Plan (COP27)77.. Among other things, the member states noted the following:

“I. Science and urgency

(…)

6. Takes note of the 2022 adaptation gap and emissions gap reports of the United Nations Environment Programme, and recent global and regional reports of the World Meteorological Organization on the state of the climate;

7. Reiterates that the impacts of climate change will be much lower at the temperature

increase of 1.5 °C compared with 2 °C and resolves to pursue further efforts to limit the

temperature increase to 1.5 °C;

(…)

IV. Mitigation

14. Recognizes that limiting global warming to 1.5 °C requires rapid, deep and sustained reductions in global greenhouse gas emissions of 43 per cent by 2030 relative to the 2019 level;

15. Also recognizes that this requires accelerated action in this critical decade, on the basis of equity and the best available scientific knowledge, reflecting common but differentiated responsibilities and respective capabilities, in the light of different national circumstances and in the context of sustainable development and efforts to eradicate poverty;

(…)

17. Reiterates its invitation to Parties to consider further actions to reduce by 2030 non-carbon dioxide greenhouse gas emissions, including methane;”

The Sharm el-Sheikh Implementation Plan states the following on adaptation:78.

“12. Also notes that the best available science, as well as traditional, indigenous and local

knowledge, as appropriate, should be taken into account in addressing the priority gaps and

needs referred to in paragraph 7 above and in enhancing the process to formulate and

implement national adaptation plans for developing countries;

13. Notes with serious concern the findings on adaptation gaps in the contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change;

14. Recognizes that long-term planning and accelerated implementation of adaptation actions, particularly in the next decade, is important for closing adaptation gaps;

15. Also recognizes that maladaptation can be avoided through flexible, multisectoral,

inclusive and long-term planning and implementation of adaptation actions that benefit many sectors and systems;

16. Takes note of the support available to developing country Parties for formulating and

implementing national adaptation plans and recognizes the importance of scaling up this

support;

17. Encourages relevant organizations to continue coordinating support related to the

process to formulate, update and implement national adaptation plans and to continue sharing lessons learned;

18. Notes that the process to formulate and implement national adaptation plans is crucial

to informing the assessment of progress towards achieving the global goal on adaptation,

including through the Glasgow–Sharm el-Sheikh work programme on the global goal on

adaptation and the global stocktake.”

United Arab Emirates Framework for Global Climate Resilience

Following the outcomes of the Glasgow–Sharm el-Sheikh work programme on the global goal on adaptation, the member states (united in the COP) formulated global adaptation goals in 2023:79.

10. Decides that the United Arab Emirates Framework for Global Climate Resilience includes the following targets in relation to the dimensions of the iterative adaptation cycle, recognizing the need to enhance adaptation action and support:

(a) Impact, vulnerability and risk assessment: by 2030 all Parties have conducted up-to-date assessments of climate hazards, climate change impacts and exposure to risks and vulnerabilities and have used the outcomes of these assessments to inform their formulation of national adaptation plans, policy instruments, and planning processes and/or strategies, and by 2027 all Parties have established multi-hazard early warning systems, climate information services for risk reduction and systematic observation to support improved climate-related data, information and services;

(b) Planning: by 2030 all Parties have in place country-driven, gender-responsive, participatory and fully transparent national adaptation plans, policy instruments, and planning processes and/or strategies, covering, as appropriate, ecosystems, sectors, people and vulnerable communities, and have mainstreamed adaptation in all relevant strategies and plans;

(c) Implementation: by 2030 all Parties have progressed in implementing their national adaptation plans, policies and strategies and, as a result, have reduced the social and economic impacts of the key climate hazards identified in the assessments referred to in paragraph 10(a) above;

(d) Monitoring, evaluation and learning: by 2030 all Parties have designed, established and operationalized a system for monitoring, evaluation and learning for their national adaptation efforts and have built the required institutional capacity to fully implement the system;

First Global Stocktake

The first interim evaluation (First Global Stocktake) was prepared for COP28 in Dubai, United Arab Emirates. To this end, the state of affairs in 2023 in the field of climate change and the effectiveness of the measures announced to combat it were examined.80.Key findings included that actual global emissions were not on track to meet the Paris Agreement targets and that not all of the plans submitted by member states had been implemented. As a result, more needs to be done than was anticipated to limit global warming to the agreed 1.5 °C, while there is less time to achieve this.81.The conclusion was that it is not only necessary to take ambitious (or more ambitious) measures, but also to actually implement the intended measures

“13. Key finding 5: much more ambition in action and support is needed in implementing domestic mitigation measures and setting more ambitious targets in NDCs to realize existing and emerging opportunities across contexts, in order to reduce global GHG emissions by 43 per cent by 2030 and further by 60 per cent by 2035 compared with 2019 levels and reach net zero CO2 emissions by 2050 globally.”82.

viii. ‘Advisory Opinion’ of the International Court of Justice

On 29 March 2023, the UN General Assembly requested the highest UN court – the International Court of Justice (ICJ) – for an advisory opinion on the obligations of states with regard to climate change.83.

On 23 July 2025, the ICJ published an advisory opinion84.setting out the mitigation and adaptation obligations on UN member states. In its advisory opinion, the ICJ explained a number of provisions of UN law that are also relevant to these proceedings and provided further context. The court takes this advisory opinion into account in its assessment of the claims in Chapter 8 below, where it concerns findings on specific rules and principles. However, the considerations cited below are relevant to the interpretation of all the rules mentioned above:

“175. (…) the Court notes that not all provisions of a treaty readily lend themselves to classification as containing obligations of result or conduct, and each provision must be examined on its own terms in light of specific circumstances. The Court recalls that obligations of conduct in international environmental law entail an obligation to act with due diligence, requiring States parties “to use all the means at [their] disposal” with a view to fulfilling their international obligations”.

(…)

208. It must be stressed that both types of obligations [obligations of conduct and

obligations of result, added by the court] may result in the responsibility of a State for breach of the relevant obligation. While the issue of responsibility is addressed further under question (b) (see Part V below), the Court finds it useful here to note that, in the case of an obligation of conduct, a State acts wrongfully if it fails to use all means at its disposal to bring about the objective

envisaged under the obligation, but will not act wrongfully if it takes all measures at its disposal with a view to fulfilling the obligation even if the desired objective is ultimately not achieved. In the case of an obligation of result, a State acts wrongfully if it fails to bring about the result required under the obligation. At the same time, it cannot be said that an obligation of result, such as an obligation to “adopt national policies and take corresponding measures on the mitigation of climate change”, will be met merely by the adoption of any policies and the taking of corresponding measures. To comply with this obligation of result, the policies so adopted and the measures so taken must be such that they are able to achieve the required goal. In other words, the adoption of a policy, and the taking of related measures, as a mere formality is not sufficient to discharge the obligation of result.”85.

b. European legislation on climate change

On 22 April 2016, the European Union signed the Paris Agreement and thus became an independent party to this UN treaty, alongside its member states.86.

i. European Green Deal 2019

The EU has integrated its climate plans into The European Green Deal87., which the European Commission published on 11 December 2019. The aim of this policy programme is to transform the EU into ‘a fair and prosperous society, with a modern, resource-efficient and competitive economy, where there are no net greenhouse gas emissions in 2050 and where economic growth is decoupled from resource use’. The Commission announced that it would submit a proposal for a European climate law in March 2020, containing two binding targets for reducing greenhouse gas emissions: climate neutrality by 2050 and a 50-55% reduction in emissions by 2030 relative to 1990 levels.

European climate legislation has its own governance structure,88.including administrative obligations that EU member states must comply with in order to track joint efforts and report to the UNFCCC.

Among other things, member states must submit ‘integrated national energy and climate plans’ and long-term strategies, and update these every ten years.89.Member states must also submit progress reports every two years, including on the status of implementation of their own integrated national energy and climate plans and on forecasts. Estimated greenhouse gas inventories must be reported annually.90.

The aim is that this coordinated system will lead to greater coherence and effectiveness of the measures taken within the EU. It would also significantly reduce complexity and administrative burdens for member states, EU institutions and other stakeholders.91.

ii. European Climate Law 2021

The European Climate Law92.came into force on 30 June 2021, in the form of Regulation (EU) 2021/1119. This regulation contains two binding targets: one for climate neutrality in the EU by 205093.and one for a net reduction in greenhouse gas emissions from the Union of at least 55% in 2030 relative to 1990.94.In doing so, the EU aims to meet the UN target of limiting global warming to 1.5 ⁰C and to make progress towards achieving the UN climate adaptation goals.95.

iii. Fit for 55 package

In 2023, the EU adopted a series of legislative proposals revising all EU policy instruments necessary to achieve the 2030 climate target. With this so-called ‘Fit for 55’ package96., the EU has reaffirmed that greenhouse gas emissions in the EU must be reduced by at least 55% by 2030 relative to 1990 levels, and that the EU must be climate neutral by 2050. The EU has set up a Just Transition Fund to support regions and sectors that are economically dependent on fossil fuels and that need to make major adjustments in the transition to a green economy.

Since the aforementioned First Global Stocktake, negotiations have been underway within the EU to set a new intermediate climate target for the EU for the year 2040. At the time of this judgment, no new target has yet been laid down in legislation.97.The proposal on which political agreement seems to have been reached is that CO2 emissions must be reduced by 90% in 2040 relative to 1990, with at most 5% of the reduction in emissions being achieved by purchasing international carbon credits.98.

c. Applicability of relevant treaty law on Bonaire

Article 28 of the Charter stipulates that Aruba, Curaçao and Sint Maarten may, if they so desire, become members of international organisations on the basis of international agreements entered into by the Kingdom.

The ECHR, the Twelfth Protocol to the ECHR and the ICCPR apply to the entire Kingdom, including Bonaire.99.

The Netherlands is a member of the UN Climate Convention and the Paris Agreement, but only in respect of the European part of the Netherlands. The explanatory memorandum to the Approval of the Paris Agreement100.of 31 October 2016 states the following in this regard

“4.2 The Caribbean part of the Netherlands

The extension of the application of the Paris Agreement to the Caribbean part of the Netherlands (Bonaire, Sint Eustatius and Saba) requires the extension of the application of the Framework Agreement to the Caribbean part of the Netherlands; this is not yet the case.In the context of a possible acceptance of the Paris Agreement for the Caribbean part, consultations will be held with Bonaire, Sint Eustatius and Saba on how they can make an (additional) contribution to achieving the general objective and long-term temperature goal of the Agreement. This could include increasing the islands’ adaptive capacity, strengthening their resilience to (the effects of) climate change, their mitigation plans, the necessary legislation and regulations, and the financing of the entire package. Once the preparation of the necessary implementing legislation has been completed, the Agreement can then apply to Bonaire, Sint Eustatius and Saba. In this context, the necessary extension of the Framework Agreement to Bonaire, Sint Eustatius and Saba will be included.”

The European Climate Law does not apply to Bonaire.

Under EU law, overseas territories of EU member states have a special status as either ‘overseas countries and territories’ (OCTs) or ‘outermost regions’ (ORs).

In principle, EU legislation does apply to the ORs; however, due to their great distance from Europe, exceptions to this main rule are possible.

In principle, European Union law does not apply to the OCTs, with the exception of Parts II and IV of the Treaty on the Functioning of the European Union (TFEU). Part II concerns non-discrimination and citizenship of the Union; Part IV concerns the association of the OCTs. The purpose of associating the OCTs with the EU is ‘to promote the economic and social development of the countries and territories’ (Article 198 TFEU).

The Netherlands Antilles and Aruba had OCT status prior to 2010. During the constitutional reforms in 2010, it was agreed that the OCT status of the BES islands would be maintained ‘for the time being’. This means that, in principle, European Union law does not apply to the BES islands.

Greenpeace argues that the State has failed to fulfil its positive obligations under Articles 2, 8 and 14 of the ECHR and Article 1 of the Twelfth Protocol to the ECHR. According to Greenpeace, this failure constitutes a violation of those articles, is a breach of the standard of care and is therefore unlawful within the meaning of Article 6:162 of the Dutch Civil Code (BW). If the State has an obligation under the aforementioned provisions of the ECHR, it can be compelled to fulfil that obligation (Article 3:296 BW). This has already been confirmed by the Supreme Court in the Urgenda ruling.

The State argues that the ECHR provisions cited by Greenpeace are not suitable for review at group level, so that, according to the State, these provisions cannot be applied in an action initiated under the Settling of Large-scale Losses or Damage (Class Actions) Act such as this one. Furthermore, the State argues that Greenpeace has insufficiently substantiated that any failure on its part is so serious that it constitutes a violation of human rights and/or an unlawful act against the inhabitants of Bonaire.

The court will first assess whether – and if so, how – Articles 2 and 8 of the ECHR can be applied to climate-related claims in actions initiated under the Settling of Large-scale Losses or Damage (Class Actions) Act.

a. Articles 2 and 8 ECHR; general

The ECHR obliges member states to guarantee their residents the rights and freedoms laid down in the convention. Article 2 of the ECHR protects the right to life; Article 8 of the ECHR protects the right to respect for private and family life.

According to case law of the European Court of Human Rights (ECtHR), a member state is obliged to take appropriate measures if there are specific risks to the life and well-being of its residents and the state is aware of those risks.161.This is referred to as a ‘positive obligation’, as opposed to the (negative) obligation for member states to refrain from actions that violate the rights of citizens. Depending on the seriousness and urgency of the imminent danger, this obligation arises from Article 2 or Article 8 of the ECHR.162.

In applying both provisions, it is taken into account whether the threat complained of arose from the conduct of the member state itself or from the conduct of others. As mentioned above, the positive obligation of member states to protect their citizens against dangers arising from the conduct of third parties only arises if the member state was aware (or should have been aware) of the danger to the complainants.163.

If a member state is aware or should have been aware of a danger to the lives of its residents caused by third parties, its positive obligations under both Articles 2 and 8 of the ECHR essentially consist of two elements:

( a) the duty to provide a regulatory framework, and

( b) the obligation to take preventive operational measures.164.

Both elements must be tailored to the specific characteristics of the third party’s activity, in particular with regard to the potential level of risk. Member states must regulate the licensing, establishment, operation, security and supervision of that activity and require all parties involved to take practical measures to ensure the effective protection of citizens whose lives or well-being could be endangered by the risks inherent in that activity.165.

The right to live and practise one’s own culture as referred to in Article 27 of the ICCPR is also protected by Article 8 of the ECHR. The court will therefore not assess Greenpeace’s claims separately against Article 27 of the ICCPR.

b. Specifically in climate cases

In the KlimaSeniorinnen judgment of 9 April 2024166., the Grand Chamber of the ECHR listed its own case law and focused on the problem of climate change. The ECHR had also taken account of the most recent developments at that time; this concerned not only the situation in the world and the state of the art of scientific knowledge on climate change, but also the state of international law.

The judgment focuses on Articles 2 and 8 of the ECHR and clarifies – for the first time – how Articles 2 and 8 of the ECHR should be applied in climate cases from now on. As the Grand Chamber of the ECHR is the highest court for interpreting the ECHR, this court takes the legal framework set out in the KlimaSeniorinnen judgment as its starting point.

In the KlimaSeniorinnen judgment, the ECHR arrives at a special framework for climate cases because the assessment of complaints about violations of the ECHR related to climate change is so much more complex than the assessment in more traditional environmental cases. The ECHR explains this complexity in detail.167.

The ECHR had previously ruled on environmental cases, but those cases concerned situations involving specific sources of environmental damage. In such cases, it is possible to determine with a reasonable degree of certainty who is exposed to that specific damage and where. The existence of a causal link between an identifiable source of damage and the actual harmful effects on groups of people can generally also be clearly established in such ‘classic’ environmental cases. The same applies to the measures that have been taken – or not taken – to reduce the damage from that particular source. In short, in the classic environmental cases in which the ECHR had ruled up to that point, it was possible to establish a link between the alleged damage, the source of that damage and those who suffered damage, and it was clear what measures could have been taken to limit the damage from that source.

The situation is different in climate cases. There is no single clear source causing the damage; damage caused by climate change occurs because greenhouse gases from many different sources accumulate in the environment, where they then cause changes as an accumulated whole. Many of these sources do not, when viewed separately, emit quantities of greenhouse gases that are directly harmful to humans; the harmful effects arise from the accumulation of greenhouse gases in the environment and the complex chain of reactions that then takes place. The complexity of this chain of reactions makes it impossible to predict exactly where and when these reactions will take place, how intense they will be, and therefore who will be affected by them.168.

The accumulated total volume of greenhouse gases emitted worldwide causes global warming and climate change. This warming and climate change in turn lead to incidents or periods of extreme weather such as extreme heat waves, droughts, extreme rainfall, strong winds and storms, which in turn cause disasters such as forest fires, floods, landslides and avalanches. These consequences threaten human life and well-being and, in the longer term, even threaten to destroy the basis of food supplies and other livelihoods for people in the most severely affected areas. Entire populations around the world are already being affected, and even more people will be affected in the future; the way in which people will be affected and how serious the threats will be will vary from region to region. But it has long been known that many people around the world are and will be affected.169.

Another special aspect of climate cases is that greenhouse gases are not only emitted during activities that are inherently dangerous or unnecessary. Agriculture, livestock farming, transport, construction, energy supply, housing and industry are basic elements of societies worldwide, but they do release greenhouse gases. The necessity of many of the activities that release greenhouse gases and the diverse nature of those activities make it difficult to take measures to limit emissions.

In order to limit the amount of greenhouse gases in the atmosphere, economies and lifestyles must be adapted. This can only be achieved through a comprehensive and profound transformation of various sectors in societies worldwide. A transformation of this magnitude requires highly complex and comprehensive sets of coordinated actions, policy measures and investments – in both the public and private sectors. Businesses and citizens will also have to bear some of the responsibilities and burdens themselves. Measures to combat climate change therefore inevitably raise issues of burden sharing – not only between different generations of people living today, but also between current and future generations.

In classic environmental issues, questions of this nature hardly ever arise, if at all.

Greenhouse gas emissions are therefore a problem with many causes, some of which are transboundary. Measures to limit greenhouse gas emissions cannot therefore usually be localised or limited to specific installations where harmful effects originate: climate change requires the commitment of governments worldwide. Here too, the fact that there are major differences between societies is a complicating factor; this applies not only to the social importance of the various sources of emissions and the measures needed to achieve effective mitigation, but also to (socio-)economic financial capacity.

While climate change poses existential risks to humanity as a whole in the longer term, the need to combat climate change in the short term leads to conflicts between the interests of citizens. In Europe, the weighing up of these conflicting interests must primarily take place in the democratic decision-making processes within the member states, supplemented by judicial review by national courts and the ECtHR.

Due to the fundamental differences between classic environmental cases and climate cases mentioned above, the ECtHR does not consider it appropriate to apply case law tailored to classic environmental cases directly to complaints related to climate change. In the KlimaSeniorinnen judgment, the Grand Chamber therefore focuses its own case law on the specific context of climate change. This leads – insofar as relevant to this case – to the following adjustments to the traditional approach, which the court will discuss separately below:

i. the starting point is that climate change poses a serious threat to human rights;

ii. adjusted requirements apply in climate cases to assess or cause to assess human rights violations;

iii. states have limited policy-making discretion with regard to the necessity and objectives of climate measures;

iv. but they have considerable policy-making discretion in choosing from effective climate measures;

v. each member state is responsible for its own share of the necessary measures.

i. Starting point: climate change exists and can threaten human rights

Like the Supreme Court170., the ECtHR171., after extensive consideration of the evidence, has concluded that since 1992 there has been sufficient reliable evidence that climate change caused by human activity exists, and that this climate change poses a serious threat to the enjoyment of human rights guaranteed under the ECHR (given the consequences mentioned in 10.8.3 and the damage that may result and has already resulted from it).

The ECtHR notes that the member states of the ECHR have also been aware of this serious threat for years and know that the risks will decrease if the global temperature rise is limited to 1.5 °C above pre-industrial levels. The ECtHR further notes that there is broad consensus among scientists and politicians internationally that insufficient mitigation efforts are currently being made worldwide to achieve the goal of a maximum global temperature increase of 1.5 °C. This lack of action is causing greenhouse gas concentrations to rise, and with them the risks to humans. The need to take effective mitigation measures is therefore becoming increasingly urgent.172.

In recent years, the member states of the United Nations have repeatedly examined and confirmed the need for action, with an ever-increasing sense of urgency. The member states of the European Union have also done so at the EU level.173.

The member states of the ECHR have also repeatedly acknowledged in various forums that there is convincing scientific evidence that climate change has been contributing to an increase in morbidity and mortality rates for some time, especially among certain vulnerable groups, and that this increase has the potential to become irreversible and catastrophic due to a lack of effective action.174.

For all these reasons, the ECtHR takes as its starting point that there is a causal link relevant to the application of the ECHR between the causing or failure to tackle climate change by a member state and the consequences mentioned in Figure 5 (see 4.36) that individuals may experience as a result of climate change, and also that member states are aware of this.

ii. Adjusted requirements apply in climate cases to assess or cause to assess human rights violations

It is established in the case law of the ECtHR in classic environmental cases that the positive obligations of a member state only come into play when a risk to the complainant exceeds a certain threshold. There must also be a causal link between that risk and the alleged failure of the member state to fulfil its positive obligations.175.In short, the complainant must demonstrate that and how his rights have been affected by specific actions or omissions on the part of a member state.

The ECtHR cites this classic case law in the KlimaSeniorinnen judgment and then considers that in climate cases, that threshold for (the victimisation of) a complainant and the content of a member state’s positive obligation cannot be determined on the basis of a strict causal (conditio sine qua non) link.176.If the classic causality requirements were to be upheld in climate cases, the complexity of the problem described above would mean that the rights of citizens enshrined in the ECHR could not be effectively guaranteed, despite the causes and severity of the dangers associated with climate change being recognised by the member states.

The ECtHR has found a solution in the way in which climate complaints can be submitted to the ECtHR: the threshold for individual victim status in climate cases is high (‘especially high’)177., but in the context of climate cases, it allows collective complaints, which is not permitted in other cases.178.The logic behind this solution lies, among other things, in the fact that the consequences of climate change have already been studied internationally at the group level and are largely known.

This approach is in line with previous case law in which the ECtHR considered that where citizens in modern societies are confronted with particularly complex administrative decisions, the involvement of collective bodies is one of the most accessible means – and sometimes even the only means – available to them to effectively defend their interests.179.This is all the more true for climate change, as it is a global and complex phenomenon with multiple causes. Its adverse effects are not the concern of one specific individual or group of individuals, but constitute “a common concern of humankind”,180.in which intergenerational burden sharing and the representation of vulnerable citizens are of particular importance.

From this decision by the Grand Chamber of the ECtHR in the KlimaSeniorinnen judgment, the court concludes that in climate cases, collective actions – and therefore at the collective level – it can also be assessed whether a member state has complied with Articles 2 and 8 of the ECHR.

Limited policy-making discretion with regard to the necessity and objectives of climate measures, and

Considerable policy-making discretion in choosing from effective climate measures

The special nature of the climate change problem and the broad international consensus on the measures that governments worldwide must take also have consequences for the policy-making discretion available to member states when taking measures to combat climate change.

In short, the ECtHR considers that member states have only a reduced margin of appreciation in two key areas when it comes to measures to combat climate change, namely: 1) the need to take measures to reduce greenhouse gas emissions from their territory and 2) the targets to be pursued. Therefore, member states cannot decide that it is not necessary to take measures or to pursue less stringent targets. When it comes to choosing from possible measures, member states have a wide margin of appreciation.181.

This wide margin of appreciation is, however, limited by the requirements that the measures chosen must a) be suitable for achieving the targets and b) actually be implemented.182.The court will examine these requirements in more detail when assessing Greenpeace’s claims against the requirements of Article 8 of the ECHR.

v. Each member state is responsible for its own share of the necessary measures

In the KlimaSeniorinnen case, the Swiss government drew attention to the fact that Swiss greenhouse gas emissions account for only a small proportion of total international emissions. The Swiss government argued that Switzerland could therefore not be held responsible for the global phenomenon of climate change.

The ECtHR ruled that Switzerland indeed cannot be held responsible for the international phenomenon of climate change, but that it is responsible for its share in taking measures to combat climate change. The measures expected of a state are determined by the agreements made by states in this regard within the UN context.183.

In the context of climate change, the content of the assessment of the seriousness of the risk complained of and the question of whether the state concerned has taken sufficiently effective measures against that risk is also determined in part by the standards agreed by member states within the UN context.184.

vi. Overall assessment in climate cases

On the basis of the above, the ECtHR has arrived at the following overall assessment to assess whether a member state has fulfilled its positive obligations under Article 8 of the ECHR when taking climate measures.

The primary duty of the member states in this context is to adopt legislation and take substantial, progressive measures that can mitigate the existing and future effects of climate change. Legislation must include binding intermediate targets for the period up to net zero emissions, and said legislation and other measures must also be effectively implemented in practice.185.

The ECtHR distinguishes between three types of measures: mitigation measures, adaptation measures and procedural safeguards.

With regard to mitigation measures, it is relevant whether the competent national authorities – the legislative, executive and/or judicial powers – have taken sufficient account of the need to:186.

a. adopt general measures specifying a target timeline for achieving carbon neutrality in line with the overarching goal for national and/or global climate-change mitigation commitments;

b. set out intermediate GHG emissions reduction targets and pathways that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames;187.

c. provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant targets;

d. keep those targets updated with due diligence, and based on the best available evidence; and

e. act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.

The international mitigation obligations to which the ECtHR refers here are those laid down in the UN Climate Convention and the resulting further agreements between the member states.188.When assessing whether there has been a violation of Article 8 of the ECHR due to non-compliance with requirements a. to e., all requirements must be assessed in conjunction with each other. This assessment is of an overall nature; a failure on one specific point does not necessarily lead to a finding of a violation of Article 8 of the ECHR.189.

Where necessary, member states must supplement mitigation measures with adaptation measures aimed at alleviating the most serious or threatening consequences of climate change. Adaptation measures must be put in place and effectively applied in accordance with the best available evidence and consistent with the general rules for positive obligations of Member States referred to above under 10.5.2.190.

Due to the interconnection between adaptation and mitigation policies and the fact that some measures serve both mitigation and adaptation targets, the court will in fact have to make an overall assessment of all mitigation and adaptation measures as a whole taken by the member state.191.

Finally, when assessing whether the member state has remained within its margin of appreciation, it is also relevant that member states must observe two types of procedural safeguards when taking mitigation and adaptation measures:192.

a. the relevant information, and in particular the conclusions of the relevant studies held by public authorities, must be made available to the public, and in particular to those persons who may be affected by the regulations and measures in question or the absence thereof; and

b. procedures must be available through which the views of the public can be taken into account in the decision-making process.

Obligation to furnish facts: the existence of a life-threatening danger/(a risk of) harm

As discussed above in 10.10 to 10.14, for the application of the ECHR, the courts assume in climate cases that there is a causal link between a member state causing or failing to tackle climate change and certain types of consequences that individuals are known to experience as a result of climate change. This means that complainants in climate cases do not have to argue or prove these elements in order to meet the threshold for the applicability of Articles 2 and 8 of the ECHR. Nor do complainants have to prove that remedying the alleged violation offers a real prospect of limiting the alleged damage.193.

In the context of climate change, it is therefore up to the member state to argue (and, if necessary, prove) that there is no causal link between the conduct specifically complained of and the consequences known to affect individuals as a result of climate change.

viii. High threshold for the application of Article 2 of the ECHR in collective climate cases

What this means exactly for assessing whether there has been a violation of Article 2 or 8 of the ECHR in a specific case is not clear from the KlimaSeniorinnen judgment. The ECtHR only explicitly assessed the complaints in that case against the requirements of Article 8 of the ECHR, adding a few pointers for the assessment against Article 2 of the ECHR. The assessment under Article 2 of the ECHR is “to a large extent similar to”194.(but not identical to) the assessment under Article 8 of the ECHR.

In addition, it is not clear from the ECtHR’s considerations whether Article 2 of the ECHR can also be applied in collective actions. All things considered, the court understands the KlimaSeniorinnen judgment to mean that this is in principle possible in climate cases, but that the threshold for the applicability of Article 2 of the ECHR is high. This opinion is based on the following considerations.

Specifically with regard to the complaints of the interest group Verein KlimaSeniorinnen Schweiz, the ECtHR considers that Article 8 of the ECHR “undoubtedly applies”, but that “the applicability of Article 2 of the ECHR is more questionable”.195.The ECtHR then found that the individual complainants did not meet the high threshold for victim status under Article 2 of the ECHR, but left this open in the case of the interest group.

Meanwhile, the detailed reasoning in §513 and the fairly concrete wording of §487 and §488 do provide guidance for predicting the circumstances that could lead the ECtHR to find a violation of Article 2 of the ECHR in future cases. In order to meet the threshold for the applicability of Article 2 of the ECHR, §487 and §488 stipulate that there must in any case be:

a. a high intensity of exposure of complainants to the adverse effects of climate change that threaten the lives of complainants; and

b. a pressing need to ensure the complainant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.

These requirements are consistent with the established case law of the ECtHR on natural disasters such as mudslides and earthquakes, which has held that the obligation to protect life also applies when the right to life is threatened by a natural disaster, if the danger is acute and clearly identifiable.196.If these requirements are met, it is possible, according to the ECtHR, to assume that a serious risk of a significant reduction in a person’s life expectancy as a result of climate change – as argued by the plaintiffs in the KlimaSeniorinnen case – ought also trigger the applicability of Article 2 of the ECHR.197.

In view of the international studies on climate risks for population groups cited by the ECtHR, the requirements set out in §487 and §488 can be better assessed at the collective level than at the individual level. Allowing collective complaints about a lack of commitment to mitigate these risks is consistent with the system set out by the ECtHR in §489 to §503 of its judgment.

The ECtHR ultimately assesses the complaint by Verein KlimaSeniorinnen Schweiz about the absence of action against the risks associated with climate change for the life expectancy of those affected not against Article 2 of the ECHR, but against Article 8 of the ECHR.

ix. Obligation to furnish facts: damage (risk) to the represented group

In collective actions, an interest group represents the interests of a group of people. Complaints may then be substantiated at group level; the interest group does not have to state and substantiate the risks run and/or the damage suffered by each individual stakeholder.

Within the framework of Article 8 of the ECHR, the ECtHR allows collective complaints because, based on the available scientific information – which is widely accepted as accurate internationally – it is clear that the entire world population is at least at some risk from climate change or has already suffered some form of damage that falls within the scope of Article 8 of the ECHR.198.For types of risk and damage that are known to affect the group represented by the interest group, the obligation to furnish facts on interest groups is therefore limited.199.

As mentioned above, the ECtHR provides little guidance on the application of Article 2 of the ECHR in collective actions. From the considerations set out above under 10.28 to 10.28.4, the court concludes that the ECtHR also applies different thresholds for the concept of victim status under Articles 2 and 8 of the ECHR in the context of climate change. One of these differences is the weight of the obligation to furnish facts and the burden of proof in relation to the seriousness and urgency of the risks to the life expectancy of the group of people represented by an interest group. For Article 2 of the ECHR to apply, the interest group will have to prove that there is an acute life-threatening situation, whereas for Article 8 of the ECHR to apply, it is sufficient that the life and well-being (or the enjoyment of other rights protected by Article 8 of the ECHR)200.of that group are at risk in the long term.

Greenpeace is seeking separate declaratory decisions with regard to the mitigation and adaptation measures taken by the State. However, it follows from the assessment framework for climate cases set out above that, in answering the question of whether the State has fulfilled its positive obligations, the court must assess the climate measures taken as a whole. Mitigation and adaptation measures cannot therefore be viewed separately in this context.

b. Assessment against Article 8 of the ECHR, not Article 2 of the ECHR

The court will assess the mitigation and adaptation measures taken by the State and the associated procedural safeguards in the manner described above under 10.24 to 10.24.6.

The court will assess these measures against Article 8 of the ECHR and not against Article 2 of the ECHR. The court is of the opinion that Greenpeace has not sufficiently argued that the State’s failure to fulfil its positive obligations at the collective level could lead to the conclusion that there is an acute threat to the right to life of the inhabitants of Bonaire201.as referred to in Article 2 of the ECHR. This opinion is based on the following considerations.

The court considers it sufficiently plausible that climate change already poses an increased risk of illness and mortality for certain groups in the Caribbean region;202.the State has not disputed this either.

Both Article 2 and Article 8 of the ECHR offer citizens protection against dangers that threaten their lives. The difference between the provisions is that the protection afforded by Article 2 of the ECHR relates to acute threats to the lives of citizens, while other threats to their lives, life expectancy and/or health fall under the protection of Article 8 of the ECHR (see 10.28.2, 10.30 and 10.31).

Greenpeace argues that the inhabitants of Bonaire have been experiencing the increasing impact of climate change on their lives, well-being and living environment in various ways for many years. It also argues that the population of Bonaire is less able to protect itself than the population of the European Netherlands due to socio-economiccircumstances.

However, Greenpeace has not explained that and how the inhabitants of Bonaire are so intensely exposed to the harmful effects of climate change at a collective level that acute life-threatening situations arise.203.

Although it is very serious that in twenty-five years’ time, significant parts of the island will most likely be inundated, this is not an acute life-threatening situation for ‘the inhabitants of Bonaire’ in general. The consequences for citizens will vary depending on where they live on the island, whether they are young or old, poor or rich, and whether they are healthy or have underlying medical conditions. The consequences (their nature, severity and extent) will also depend on the adaptation measures that will be taken in the coming years.

The same applies in this collective action with regard to the rapidly rising annual average temperature, which at 28.5 °C is indeed already very high.

Greenpeace’s assertions – including those concerning the flooding of large parts of the island and the rapid rise in the average annual temperature – are sufficient to assume a possible violation of Article 8 of the ECHR. These arguments have not been contested by the State and the situations described pose – to varying degrees – a threat to the life, health, well-being and/or quality of life of the inhabitants of Bonaire. The court will therefore assess Greenpeace’s claims against Article 8 of the ECHR.

c. Overall assessment of all measures taken by the competent authorities

When assessing whether a member state has fulfilled its positive obligations under the ECHR towards a citizen, the court must take into account all the measures taken by the competent authorities.204.It is irrelevant how a member state has divided its powers and responsibilities internally in order to fulfil its obligations: this is not dictated by the ECHR205.nor is it regulated by the Paris Agreement.206.

The downside of this wide margin of appreciation is that member states cannot invoke (the limitations of) their internal state structure to defend themselves against complaints of violations of the ECHR.

Mitigation measures

i. Positions of the parties

Greenpeace believes that the targets set by the State clearly do not meet the requirements of the UN Climate Convention and the additional agreements subsequently made by the member states.

Firstly, according to Greenpeace, Dutch climate policy does not meet several ambition requirements, namely because (i) it is based on grandfathering; (ii) the mitigation policy does not take historical emissions into account; and (iii) it does not meet the lower limit of the Dutch fair share, which, according to the widely supported consensus, is determined by a so-called equal per capita distribution of the remaining global 1.5 °C carbon budget.207.

Secondly, according to Greenpeace, Dutch climate policy does not meet several requirements that are necessary to ensure that climate targets are actually achieved. These relate to the obligations to (iv) quantify emission allowances by establishing a national carbon budget; (v) to lay down mitigation measures in binding national legislation and to set intermediate targets, and (vi) to provide sufficient substantiation on how the climate policy contributes to a fair share of the 1.5 °C target.208.

The State is of the opinion that it does meet the positive obligations incumbent upon it under Articles 2 and 8 of the ECHR, also in view of the KlimaSeniorinnen judgment.

Firstly, according to the State, the Paris Agreement does not contain emissions reduction targets for individual parties to the agreement: countries determine their own mitigation targets and set a ‘Nationally Determined Contribution’ (NDC) for this purpose. Furthermore, the EU and its member states have opted for a joint approach to climate mitigation, so that, according to the State, the Netherlands no longer needs to set its own NDC.209.

The EU’s NDC includes an emission reduction target of at least 55% by 2030 relative to 1990, and a net zero emissions target for 2050. These targets are also laid down in a regulation: the European Climate Law. These targets will be achieved through both EU-wide and national measures.

In addition, the Dutch Climate Act sets a target of reducing national greenhouse gas emissions by 55% by 2030 relative to 1990 levels. For 2050, the Dutch Climate Act includes a target of net zero greenhouse gas emissions.

Both Dutch and European climate legislation include monitoring and adjustment mechanisms that ensure that progress is tracked and, if necessary, policy adjustments are made to achieve the legally established targets.

The State further takes the position that it has quantified its emission allowance, although not by means of a national carbon budget, which is also not necessary according to the State. For the period up to 2030, the emission allowance has been quantified by means of (a combination of) the EU ETS1 and EU ETS2210., the ESR Regulation211.and the LULUCF Regulation212.; these are the instruments aimed at meeting the climate targets at EU level. Based on the Governance Regulation213., the State is required to provide insight into the extent of these emissions; reports are made on the emissions of companies that fall under the ETS. It is important to note that the ETS system will be expanded to ETS2214.in 2028. At that point, 80% of emissions will be covered by this system.

The EU ETS1, EU ETS2, the ESR Regulation and the LULUCF Regulation quantify the emission allowance for the EU until 2030;215.for the quantification of the emission allowance up to and including 2050, the State refers to the indicative greenhouse gas budget drawn up by the European Commission on the basis of Article 4 of the EU Climate Law, which was published at the same time as the opinion of the European Scientific Advisory Board on Climate Change in February 2024.216.

ii. Summary of the legal framework for mitigation

In summary (see also 10.24.3), in order to fulfil its positive obligation under Article 8 of the ECHR, the State must:

Although the UN Climate Convention and the agreements based on it do not directly apply to the BES islands, these regulations do reflect the international consensus on the obligations that states have towards their citizens in the context of climate change.217.That is why the court is also assessing Greenpeace’s claims against these regulations.

The UN Climate Convention and the agreements based on it contain the following obligations relevant to these proceedings for Annex I countries such as the Netherlands:218.

Member states must be climate neutral by the second half of this century.219.

Member states should aim to limit global temperature rise to a maximum of 1.5 °C.220.In 2022, member states believed that this would require a 45% reduction in global CO₂ emissions by 2030 relative to 2010 levels and net zero emissions by the middle of the century, as well as ‘deep reductions in other greenhouse gases’.221.In 2023, the interim target for 2030 was revised to a 43% reduction in emissions of all greenhouse gases relative to 2019 levels.222.

The IPCC’s ‘First Global Stocktake’ showed that member states were lagging behind in implementing their commitments to date, meaning that they would have to make additional efforts to catch up. This means that all member states must adjust their nationally determined contributions to the further agreements arising from the Glasgow Climate Pact and the Sharm el-Sheikh Implementation Plan, and the results of interim evaluations.223.Annex I countries such as the Netherlands must also take the lead in reducing greenhouse gas emissions, given their past and their socio-economic advantage (partly acquired due to their past).224.

The current state of affairs is therefore that Annex I countries must reduce their greenhouse gas emissions by at least 43% by 2030 relative to 2019 levels and to net zero by around 2050. These targets represent the lower limit of the commitments for Annex I countries, as they had to step up their efforts when it became clear from the First Global Stocktake that their efforts at that time were insufficient to keep the target of limiting global warming to 1.5 °C within reach.225.

Furthermore, the UN Climate Convention and the further agreements based on it contain a number of specific administrative, communication and publication obligations.

Particularly relevant to this case is the obligation to compile a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases and to submit it to the COP Secretariat,226.and the obligation to compile a list of national and regional programmes of climate measures, focusing on anthropogenic emissions by sources and removals by sinks of all greenhouse gases.227.

Annex I countries must update these inventories annually, make them public and submit them to the COP Secretariat.228.The inventories must – like all other publications and communications under the UN Climate Convention – meet the requirements of transparency, accuracy, completeness, comparability and consistency.229.

Member states must also have a national system for estimating anthropogenic emissions by sources and removals by sinks.230.

The treaty provisions referred to here are binding obligations to achieve specific results.231.The information provided by member states (and its quality and comparability) is essential for the functioning of the UN Climate Convention, among other things to keep track of global developments and adjust joint efforts where necessary, and to check whether member states are fulfilling their obligations (sufficiently).232.

The State’s compliance with the aforementioned obligations must be assessed on the basis of whether it has exercised due care and made every effort to the best of its ability, using all means at its disposal to fulfil those obligations.233.

iii. Assessment of mitigation

Against this background, the court finds that the State’s climate policy in the area of mitigation has a number of shortcomings and raises questions on several points.

Firstly, this concerns the reduction targets in the Dutch Climate Act.

In 2019, the State laid down the national climate targets in the (first) Dutch Climate Act. At that time, the Paris Agreement had already been concluded, whereas the Glasgow Climate Pact and the Sharm-el-Sheikh Implementation Plan were not yet concluded. At the time of the entry into force of the Dutch Climate Act 2019, there were therefore no treaty rules yet that obliged the State to set specific emissions reduction targets. However, Annex I countries were already required to include absolute emissions reduction targets for the entire economy in national legislation and to strive to achieve climate neutrality by the second half of this century. The Dutch Climate Act 2019 (see Article 2(1) of that Act, cited in 6.1) complied with the requirement in Article 4(1) of the Paris Agreement to strive for climate neutrality. However, the Act only contained ‘a framework for the development of policy aimed at the irreversible and gradual reduction of greenhouse gas emissions in the Netherlands’ (Article 2(1)) and required the ministers concerned to strive for a 49% reduction in emissions by 2030 and completely CO2 neutral electricity production by 2050 (Article 2(2)). The Act therefore does not contain any absolute emissions reduction targets and therefore did not comply with Article 4(4) of the Paris Agreement.

In 2023, the State tightened Article 2 of the Dutch Climate Act. At that time, the Glasgow Climate Pact and the Sharm-el-Sheikh Implementation Plan were also part of the UN climate regime. Annex I countries were therefore also obliged to reduce their emissions of all greenhouse gases by at least 43% compared to 2019 levels by 2030, and to net zero by 2050.

Article 2(1) of the Dutch Climate Act 2023 explicitly and unconditionally states that the Netherlands must be carbon neutral by 2050 at the latest; this provision therefore meets the requirements of an absolute emission reduction target and climate neutrality in 2050.234.

Article 2(2) of the Dutch Climate Act 2023 does not meet these requirements. This is firstly because this provision designates 2030 as a target date.235.The Dutch Climate Act 2023 therefore does not provide for the intermediate ‘absolute emission reduction target for the entire economy’ as referred to in Article 4(4) of the Paris Agreement.236.The provision also deviates from the European Climate Law, which does prescribe a binding intermediate reduction target for 2030.237.Secondly, the target for 2030 in the Dutch Climate Act does not correspond to the target set out in the Glasgow Climate Pact and the Sharm-El-Sheikh Implementation Plan. The Dutch Climate Act – like the European Climate Law238.– is based on a 55% reduction in emissions in 2030 relative to 1990 levels, rather than compared to 2019 levels as required by current UN standards.

Although the Dutch and European targets appear similar to the UN standard at first glance, they are actually based on different parameters, including different reference years and different emission sources included in the calculations.239.

For example, the UN standard also includes emissions from aviation and shipping. Although it is known that emissions from these sources are significant in the Netherlands due to the presence of internationally important hubs such as Schiphol Airport and the Port of Rotterdam,240.emissions from these sources are not included, or not fully included, in the Dutch targets.241.The European targets only partially include emissions from these sources.242.This is at odds with Article 3(3) of the UN Climate Convention, which stipulates that climate policy and measures must cover all economic sectors and (the adaptation of) all relevant sources, sinks and reservoirs of greenhouse gases. Such differences also complicate monitoring by civil society organisations and the courts, which is at odds with the obligation to ensure maximum transparency in all reports submitted to the COP243.and the obligation to inform the citizens concerned about the climate policy pursued.244.

The foregoing is a strong indication that both the Dutch and European reduction standards are indeed – as Greenpeace claims – lower than the UN minimum standards for Annex I countries. On the basis of what the State has argued in this case, it cannot be established that this is not the case.

Contrary to what the structure of Greenpeace’s claims seems to assume, not every shortcoming in a national climate policy constitutes a violation of the positive obligations on the State under Article 8 of the ECHR.245.

Greenpeace rightly points out that Annex I countries such as the Netherlands have committed themselves to making greater efforts overall than the minimum required of average and less developed member states. However, Greenpeace fails to recognise that the State can also make these additional efforts in ways other than by reducing its own greenhouse gas emissions more quickly or by more than the agreed minimum percentage. For example, the State may choose to provide additional support to other countries in reducing their emissions or in taking adaptation measures. In any case, UN member states have a considerable margin of appreciation in choosing the additional efforts they must make.246.This choice is influenced not only by past emissions, but also by the resources available to a member state and the other circumstances in which the member state finds itself at that time.247.The court will exercise restraint in this regard.

The fact that the State does not reduce its own greenhouse gas emissions more quickly and/or by more than the percentage agreed within the UN context does not in itself constitute a breach of its positive obligations.

However, contrary to what the State appears to take as a starting point in its defence, it may well carry weight in the overall assessment in the context of Article 8 of the ECHR if, in exercising its margin of appreciation, it opts to a significant extent and/or on important points for principles or methods that, although not prohibited, are nevertheless controversial internationally.

An example of this is grandfathering: developed countries taking too little account of their own past emissions, for example by appropriating a disproportionately large share of the remaining global emissions budget.248.This point is relevant in this case because the State acknowledges249.that grandfathering is a controversial method and because the Ministry of Finance warned in September 2023 that the Netherlands’ remaining carbon budget would be exceeded within two years.250.Against this background, the State has not sufficiently contested that the current Dutch climate policy is based on emissions per capita that are significantly higher than the global average carbon budget per capita.251.Why this is equitable within the meaning of Article 3(1) of the UN Climate Convention and Article 4(1) of the Paris Agreement, and how this fits in with both the leading role that Annex I countries must play and the principle of intergenerational justice, requires explanation. However, the State has not provided this explanation. The court also considers this to be a negative factor.

Secondly, this concerns the implementation of climate measures.

The parties agree that it is “highly unlikely” that the Netherlands will achieve its own targets. There is a “less than 5% chance” of achieving its own target for 2030, which is probably already too low, and if the (implementation) policy is not tightened up, the target for 2050 will also be out of reach.252.Given the current state of policy, the State will not achieve its own mitigation targets for 2030 and 2050.

However, for the period from 2030 to 2050, there are still no concrete, coherent instruments aimed at achieving the reduction targets agreed within the UN context. The Netherlands therefore does not meet the requirement referred to in 11.7 that there must be a binding regulatory framework with intermediate targets and pathways for the agreed reduction of carbon emissions for the entire period until climate neutrality is achieved.

Thirdly, the State has not clearly quantified how much emission allowance the Netherlands still has as part of the global emission budget that remains to limit global warming to 1.5 °C. The State should have done this in some way.

Greenpeace argues that the State is obliged to quantify the remaining emission allowance for the Netherlands by drawing up a national carbon budget that is linked to the global carbon budget that remains to limit global warming to 1.5 °C. It is true that the UN Climate Convention and the further agreements based on the Convention oblige member states to quantify in a transparent manner how their regulations and policy measures (and their implementation) relate to the agreed minimum standards and their own climate targets (see 11.10-11.10.4). Member states will therefore have to provide insight into the total net greenhouse gases emitted from their territory during the accounting period and also how this total relates to the remaining global carbon budget. However, UN law does not oblige member states to do this specifically by means of a national carbon budget.

In its KlimaSeniorinnen judgment, the ECtHR also deduces from the UN conventions that member states must quantify the limits to their emissions over a certain period in the future, but leaves it up to member states to decide whether they want to do this ‘through a carbon budget or otherwise’.253.

Contrary to Article 12(8) of the UN Climate Convention, the EU has not submitted a breakdown of emission budgets per member state to the UNFCCC for the current administrative period;254.and it is not clear from the previous NDC255.what carbon budget the EU is assuming. In view of Article 4(16) of the Paris Agreement256., in this regard the Netherlands cannot refer to EU communication for the fulfilment of its own obligations.

The State has mentioned policy instruments that limit Dutch emissions, but these instruments do not cover total national greenhouse gas emissions; from 2027 onwards, they will cover 80% of Dutch emissions. Furthermore, these instruments are aimed at achieving the objectives of the European Climate Law; in view of the considerations set out above under 11.13.3 and 11.15.3, it is not clear that the climate objectives at EU level meet the UN minimum standards.

The policy instruments mentioned by the State do not provide for reduction plans and measures for the period after 2030; nor do they quantify Dutch emissions for the period between 2030 and 2050. This is at odds with the State’s obligations under Article 4 of the Paris Agreement (including paragraphs 4, 8 and 19). During the oral proceedings, the State stated that political agreement on such policy instruments had been reached very recently, but no information on this was presented to the court. The court therefore also considers this point to be negative, on the understanding that its judgment does not relate to any new policy instruments.

In this context, it is also relevant that in September 2023, the Ministry of Finance concluded that the Netherlands’ remaining carbon budget would already be exceeded in the next two years. This fact casts a negative light on the lack of a clear quantification of the Netherlands’ remaining emissions budget.

As an aside, the court notes that if the EU’s contribution does not meet UN standards – which appears to be the case on at least two important points257.– the Netherlands must submit its own NDC in accordance with Article 4(16) to (18) of the Paris Agreement.

iv. Interim conclusion on mitigation measures

The court finds that, in the past, Dutch legislation in the field of mitigation failed to meet the minimum standards agreed within the UN context on important points, and that current legislation also fails to meet these standards on important points.

Adaptation measures

i. Arguments of the parties

According to Greenpeace, vis-à-vis the inhabitants of Bonaire the State is not complying with the standard of due care that states must observe when taking adaptation measures. In summary, Greenpeace substantiates this as follows.

Greenpeace refers to the research studies mentioned in Chapter 4, which show that the inhabitants of Bonaire have been suffering increasing damage from climate change for many years, ranging from an increased risk of mortality, heat stress and other health problems; damage to agriculture due to persistent drought; damage to infrastructure due to drought, flooding and other forms of extreme weather.

The research also shows that a large part of Bonaire will be inundated in twenty-five years’ time, and studies by UNICEF and others show that this prospect is causing great concern among the island’s inhabitants. Greenpeace calls for special attention to the younger generation of Bonaireans, who have to live with the uncertainty of whether – and if so, how – they will be able to shape their future on the island.

According to Greenpeace, it follows from Article 4 of the UN Climate Convention, Article 7(9) of the Paris Agreement, the KlimaSeniorinnen judgment of the ECtHR, the Advisory Opinion of the ICJ and the case law of the Inter-American Court of Human Rights (IAHRM) that there is international consensus that the State has an obligation to take timely action to:

According to Greenpeace, the State has failed to meet these requirements for Bonaire.

According to Greenpeace, the State has failed to do all this for the inhabitants of Bonaire, or has not done so in a timely manner, while it has been developing, implementing, monitoring and tightening up an integrated adaptation policy for the European Netherlands since around 2010 and has structurally been making resources available.

The State should have done this for the inhabitants of Bonaire all the more because the island falls under the categories of vulnerable areas that are ‘particularly affected’ by climate change and therefore have ‘specific needs and concerns’. According to Article 4(8) and (9) of the UN Climate Convention, member states must give special attention (‘full consideration’) to these areas.

The State takes the position that it does indeed pursue an adequate and timely adaptation policy to protect the inhabitants of Bonaire from the effects of climate change. In summary, the State makes the following points in this regard.

The State points out that Bonaire was part of the Netherlands Antilles until 2010. Climate (adaptation) policy was a matter that was handled independently by the Netherlands Antilles, but was not a priority for the Netherlands Antilles. The State is not aware of any specific climate adaptation measures taken by the Netherlands Antilles on Bonaire before 2010. Since Bonaire became part of the country of the Netherlands as a public body, the tasks in the field of climate adaptation have largely been joint government tasks and powers. This means that the State creates frameworks with laws, plans and programmes within which the OLB must or can make and implement policy or plans. In the absence of national regulations obliging the OLB to draw up a local climate (adaptation) plan, the drafting of such a plan is an autonomous power of the OLB.

However, climate change is not an isolated issue; it is part of issues such as spatial planning, water management, nature conservation and protection, the environment and health. The State has tasks in these areas that are also relevant to climate adaptation, for example in the field of spatial planning (Wgro BES, Wet VRO BES), nature conservation (Wgnb BES) and maritime management (Wmb BES).

In the initial period following the political changes of 2010, the State was reluctant to introduce new legislation. On the one hand, this was to allow people to get used to the changes and to create a sense of calm, and on the other hand, it was because the local authorities and civil service lacked the people and resources to cope with too many changes at once. This was also agreed with the BES islands. From 2019 onwards, the principle of comply or explain applies, which means that all policy intensifications for the European Netherlands and the resulting legislation and/or financial consequences apply to the BES islands, unless there are reasons not to do so.

With the spatial development programme for the Caribbean Netherlands of July 2024, the State has provided frameworks for its own island development plan to Bonaire. The spatial development plan pays extensive attention to climate adaptation, such as good water management and protecting crucial and sensitive facilities from the effects of climate change by means of spatial choices. Furthermore, the State supports the OLB with crisis management and invests in (international) cooperation and in

climate adaptation-related policies, such as energy transition and socio-economic policy.

Pursuant to Articles 211 and 212 of the WolBES, the State must promote the discretionary power of the island administration and decentralisation for the benefit of the public bodies. The State may supervise the tasks assigned to the OLB and may intervene, but it must exercise restraint in view of the constitutional relationship. The State may only intervene in the event of neglect of joint government tasks or gross neglect of autonomous tasks by the OLB. The fact that climate adaptation measures have been adopted and implemented less quickly on Bonaire does not in itself constitute a neglect of duties or gross neglect of duties. Greenpeace has not claimed this either. At present, there is no legislation or regulation in the European Netherlands that makes climate adaptation policy mandatory for local authorities.

The State is aware that it has a duty to ensure the fundamental human rights of the inhabitants of Bonaire are realised, including protection against the effects of climate change. The State points out that it is doing so. At the national level, it is working on a national climate adaptation strategy (the NAS 2026), which includes the Caribbean Netherlands. At the local level, a climate plan for Bonaire is being developed. Although this is an autonomous task of the OLB, the State supports the OLB with financial resources (including by funding climate research and the Bonaire Climate Table project group), knowledge exchange and implementation capacity. The Bonaire Climate Table project group is also already working on preparing an integrated climate plan for Bonaire.

The State recognises that Bonaire’s culture is expected to be affected by climate change, but according to the State, those effects are not yet apparent. The alleged effects on agriculture, fishing and cultural festivals on Bonaire are difficult to measure, according to the State. According to the State, Greenpeace has not proven that there is already an actual impact on the right to culture on Bonaire. Moreover, numerous measures are being taken to protect Bonaire’s cultural heritage. The State refers to the Cultural Covenant, which has been elaborated in a cultural agenda and the BES Monuments Act, and various measures to preserve the traditional nature and marine environment. The IVM report submitted by Greenpeace also concludes that there is currently no real impact on ‘tangible cultural heritage’ and that ‘impact of climate change on [intangible cultural heritage, added by the court] is uncertain and difficult to predict’.

According to the State, it is inappropriate to compare the climate (adaptation) measures taken on Bonaire with those taken in the European Netherlands. The European Netherlands has a longer history of flood control measures because a significant part of the European Netherlands lies below sea level. This is not the case for Bonaire. The Delta Act, the Delta Programme and the Water Act therefore do not apply to Bonaire. Geological differences also mean that climate adaptation on Bonaire requires a completely different approach than climate adaptation in the European Netherlands. The State therefore endorses the key risks identified by the IPCC for small islands and is taking adaptation measures to mitigate these risks, including ensuring the preconditions that are important for climate adaptation to succeed: sufficient financial resources, availability of data and knowledge, and community involvement in adaptation.

With regard to scientific research into climate change on Bonaire, the State notes that data collection within the Netherlands Antilles was inadequate. This continues to have an impact on the availability of data on Bonaire. The State is working hard to improve this situation; since 2016, the KNMI has been conducting research into weather and climate on the BES islands. Although the research conducted by the KNMI since then shows that Bonaire is already experiencing the effects of climate change and will experience even more in the future, the State emphasises that the speed and extent to which these effects will occur on Bonaire are uncertain. This information is relevant in order to assess which adaptation measures are needed and when. The State is therefore funding several studies, including those by HKV (Risk profiles for flooding on the BES Islands)258.and by Witteveen+Bos (Climate change and adaptation efforts BES islands).259.

Finally, the State points out that it has a wide margin of appreciation when choosing adaptation measures.260.

ii. Legal framework for adaptation

Since 1992, the UN Framework Convention on Climate Change has required member states to draw up national programmes for “measures to facilitate adequate adaptation to climate change”. Member states must then implement, publish and regularly update these programmes.261.When drawing up and implementing these programmes, member states must use appropriate methods; the UN Climate Convention cites the preparation of national environmental impact assessments as an example of such an appropriate method.262.

Member States must also take into account the specific needs and interests of areas that are particularly vulnerable to the adverse effects of climate change, such as small island states, countries with low-lying coastal areas and areas susceptible to forest degradation.263.Annex I countries have an obligation to assist these vulnerable areas; while this obligation is binding, it allows member states a wide margin of appreciation as to how that assistance is provided.264.

UN member states have subsequently emphasised and reinforced these obligations on several occasions, including in the 2004 Buenos Aires programme of work on adaptation and response measures van 2004265.and the 2010 Cancún Adaptation Framework.

The agreements on taking adaptation measures were further tightened in 2016 in the Paris Agreement. In this agreement, the member states not only emphasised the necessity and urgency of taking adaptation measures, but also the need to report transparently on the efforts they have made and the effects their efforts have had. Article 7(9) of the Paris Agreement therefore contains binding obligations for member states to draw up a planning for adaptation measures.266.Article 7(10) of the Paris Agreement contains a binding obligation to submit an updated adaptation communication in which member states report on the planning and implementation of their national adaptation measures, and to update that communication regularly.

In the 2023 United Arab Emirates Framework for Global Climate Resilience these adaptation goals have been specified by formulating the following‘targets’ 267.:

By 2027, all member states must have established ‘multi-hazard early warning systems’ and climate information services for systematic observation in order to gather better climate-related information

By 2030, all member states must have carried out up-to-date impact and risk assessments of climate risks, the consequences of climate change and the vulnerabilities relevant to their territory, and must have used the results to formulate national adaptation plans, policy instruments and planning processes and/or strategies.

By 2030, all member states must have a national adaptation plan, an integrated adaptation policy and related planning processes that cover all ecosystems, sectors, people and vulnerable communities within their territory. These plans, policies and related instruments must be transparent and developed with the participation of the citizens and organisations concerned.

By 2030, all member states must also have made progress in implementing their national adaptation plans, policies and strategies and must have reduced the social and economic impacts of the main climate risks identified in the aforementioned impact and risk assessments.

Finally, by 2030, all member states must have established a system to monitor, evaluate and learn from the outcomes of their national adaptation efforts, including the institutional capacity to fully implement this system.

iii. Assessment of adaptation

The court finds that the State’s climate policy in the area of adaptation with regard to Bonaire had significant shortcomings in the past, but that the actions recently taken by the State appear to still make it possible to achieve the adaptation targets referred to in 11.22-11.22.5.

Firstly, the court considers it a negative factor that there is still no climate adaptation plan or integrated climate adaptation policy for Bonaire, even though it has been known for three decades that the island is particularly vulnerable to the negative effects of climate change.

Although the UN Climate Convention and the further UN agreements based on it do not yet apply directly to the BES islands (despite the government’s intention, expressed in 2016, to arrange for this to happen268.), but as an Annex I country, the State has repeatedly and explicitly committed itself since 1992 to assisting small islands and other vulnerable areas in protecting themselves against the negative effects of climate change. This too269.influences the content of the duty of care that the State has towards its own citizens living on small islands.

Although parties differ in their views on the extent to which this is the case, it is clear that the inhabitants of Bonaire have been experiencing the negative effects of climate change for many years and to an increasing degree (see 4.14-4.31).

Furthermore, it is not disputed that by 2050, a significant part of the low-lying areas of Bonaire will most likely be inundated and that a large part of the buildings and Bonairean cultural heritage are located in precisely those parts of the island.270.During COP28, the State, also on behalf of the Caribbean Netherlands, drew attention to the particular vulnerabilities of Small Island Developing States (SIDS).271.

Nevertheless, there is still no climate adaptation plan in place for Bonaire, nor is there an integrated climate adaptation policy.

A project group has been set up to develop a climate adaptation plan (the Bonaire Climate Table project group), but the outcome of this project group will not be a climate adaptation plan. The Climate Table’s task is to identify the views and interests in the field of climate mitigation and adaptation and, based on these, to propose measures to the Executive Council of the OLB. The project group’s proposals must then be laid down in the Bonaire Climate Intention and further specified in the Climate Plan.272.This is a meaningful process in which the obligation referred to in 10.24.6 to offer opportunities for participation of citizens who may be affected by the proposed measures (or the lack thereof) can be fulfilled. However, it is still unclear how long it will take before a concrete climate adaptation plan is in place.

The fact that nothing concrete can yet be said about the timeline is difficult to reconcile with the urgency of implementing a coherent and comprehensive adaptation policy for Bonaire. Since the early 1990s, it has been clear that the inhabitants of small islands worldwide are at above-average risk of experiencing serious negative consequences of climate change in the relatively short term. For more than a decade, it has been clear that climate change no longer only poses future risks for small islands in the Caribbean, but that their inhabitants are already suffering actual damage to their health, material damage and immaterial damage as a result of climate change (see paragraphs 4.1 and 4.2 of this judgment). It was also clear well before 10-10-10 – and in any case since the Round Table Conference273.and the 2005 Outline Agreement274.– that Caribbean government institutions did not have sufficient knowledge and resources to tackle complex and far-reaching problems such as climate change.275.

Nevertheless, it took until the Nijpels advisory report in 2023 (‘It is never too late’) for the State to take concrete steps towards a coherent and integrated climate policy for the Caribbean Netherlands.276.Although the steps now being taken appear appropriate to the court, it cannot be said that they were taken in a timely manner.

This assessment takes into account the fact that the European Netherlands has been working on a climate adaptation plan and an integrated adaptation policy since around 2006. Since 2016, the European Netherlands has had a National Adaptation Strategy, which has been implemented and is continuously monitored and refined. This shows that the State has been aware of its obligations regarding climate adaptation for almost two decades, but that it has not paid the same attention to the inhabitants of the BES islands as it has to the inhabitants of the European Netherlands. The court will discuss this difference in attention in more detail below in 11.37-11.47.

The State has four years left to achieve the 2030 targets from Decision 2/CMA.5 (Global goal on adaptation) referred to in 11.22.2-11.22.5. The process initiated with the Bonaire Climate Table project group could ultimately lead to a climate adaptation plan and integrated climate adaptation policy for Bonaire. For the time being, therefore, the targets referred to have not been breached.

Secondly, the court considers it a negative factor that there is insufficient scientific research available on the course of climate change on and around Bonaire and on the precise consequences this has and will have for the inhabitants of the island. Such research on Bonaire has only been conducted since around 2017, so the quality and completeness of the available information still lags behind that available for the European Netherlands.

However, the BES islands have now been included in ongoing programmes run by the KNMI (Climate Scenarios) and the PBL (the KEVs). The State has already commissioned the IVM to draw up updated elevation maps of the island, which are necessary to accurately assess climate risks and to be able to make adequate adaptation plans. From the discussion during the oral proceedings, the court understands that the research is ongoing.

The future therefore promises to hold structural progress in the quality of climate data available for the BES islands and in the monitoring and evaluation of (the implementation of) climate-related policy. The target for 2027 referred to in 11.22.1 therefore also appears to be achievable. The court considers this to be a positive factor for the future.

Thirdly, the court considers it a negative factor that no financial resources have been made available for the implementation of the second phase of the adaptation-related nature policy that has been in place for the Caribbean since 2020 (the NMBP 2020-2030), so that it is unclear how this part of the policy can be effectively implemented. No funding has yet been arranged for the implementation of the policy covered by the NMBP after 2030;277.the court also considers this to be a negative factor.

The State has defended itself by arguing that the drafting and implementation of adaptation policy is a power that belongs to the OLB. However, this does not detract from the fact that the State is ultimately responsible278.for guaranteeing the fundamental rights of the inhabitants of Bonaire (see 11.4).

iv. Interim conclusion on adaptation

In view of the above, the court finds that, with regard to the past, the State failed to sufficiently (and timely) fulfil its duty of care to take appropriate adaptation measures in a timely manner to reduce the vulnerability of Bonaire and its inhabitants to climate change.

With regard to the future, it is still possible that the targets of Decision 2/CMA.5 (Global goal on adaptation) referred to under 11.22.1-11.22.5 will be achieved and that the requirements of Article 7 of the Paris Agreement will still be met.

f. Procedural safeguards

When assessing whether the State has remained within its margin of appreciation when taking climate measures, it is relevant – as already considered in 10.24.6 – to what extent:

a. the State has made available to the public the relevant information, and in particular the conclusions of the relevant studies held by public authorities, and in particular to those persons who may be affected by the regulations and measures in question or the absence thereof;

b. procedures are in place through which the views of the public who are affected by the measures can be taken into account in the decision-making process.279.

In the UN Climate Convention, the member states have agreed the following with regard to informing their citizens:

Article 6. Education, training and public awareness

In carrying out their commitments under Article 4, paragraph 1(i), the Parties shall:

a. promote and facilitate at the national and, as appropriate, subregional and regional levels, and in accordance with national laws and regulations, and within their respective capacities:

i. the development and implementation of educational and public awareness programmes on climate change and its effects;

ii. public access to information on climate change and its effects;

iii. public participation in addressing climate change and its effects and developing adequate responses; and

iv. training of scientific, technical and managerial personnel;

(…)

Greenpeace argues that the State is not fulfilling any of these obligations, or at least not to a sufficient extent. The State believes that it is fulfilling these obligations; it refers in particular to the KNMI climate scenarios, the Climate Impact Atlas for the BES Islands,280.the efforts made within the framework of (or since) the Climate Table281.and the efforts mentioned in the letter to House of Representatives of 7 November 2023.282.

i. Assessment of procedural safeguards

The court finds that virtually all of the efforts mentioned by the State were initiated after 2022. With regard to the period up to 2023, it cannot therefore be said that the State has adequately fulfilled the obligations referred to in 11.30.

For the period from 2023 onwards, the documents show that the State is catching up, with many necessary overdue measures still being taken and room being made for participation by and knowledge of residents and local organisations.283.

However, for the period from 2023 onwards, the lack of binding national standards and concrete policy instruments (see 11.13.3 and 11.24.3) will make it more difficult for citizens to participate in combating climate change and its consequences, and to help devise and implement appropriate measures. In addition, the lack of a clear standards and policy framework for adaptation makes it more difficult for citizens and civil society organisations to identify any shortcomings on the part of the government and to hold it accountable.

ii. Interim conclusion on procedural safeguards

In the period up to 2023, the State did not fulfil its obligations towards the inhabitants of Bonaire as referred to in 11.30 under a and b. With the projects launched since 2023, the State appears to be well on its way to fulfilling the obligations referred to under b.

Unequal treatment

i. Arguments of the parties

Greenpeace’s claims are also based on Article 14 of the ECHR and Article 1 of the Twelfth Protocol to the ECHR (hereinafter: P12).

According to the State, the situation on Bonaire is different from that in the European Netherlands in terms of climate adaptation. Because the situations are not comparable when it comes to climate adaptation, the State argues that Bonaire and the European Netherlands do not need to be treated equally in that context.

The State acknowledges that the approach in the European Netherlands is different from that in the Caribbean Netherlands, but points to the geographical, climatic and geological differences between the two parts of the Kingdom. The State also points to the fact that Bonaire has only been part of the Netherlands since 2010. Because of these differences, a different climate (adaptation) approach is needed on Bonaire than in the European Netherlands.

The differences in approach are not based on the personal characteristics of the inhabitants. Bonaire and its inhabitants are protected against the adverse effects of climate change on the same basis as the inhabitants of the European Netherlands. Both groups are warned in the event of heat waves, both parts of the Netherlands have a legal and administrative framework for adaptation measures in the context of spatial development, and the nature and environmental policy objectives set for the Caribbean Netherlands are comparable to those for the European Netherlands. Therefore, according to the State, there is no violation of Article 14 of the ECHR or Article 1 P12.

While there is no comprehensive climate plan, according to the State, this does not constitute unequal treatment.

ii. Assessment framework: the prohibition of direct and indirect discrimination

The court will first briefly explain the assessment framework below, followed by an assessment of the claims on that basis.

Article 14 of the ECHR reads as follows:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This provision enshrines the right not to be discriminated against in the form of a dependent right, in the sense that it guarantees that member states do not discriminate when safeguarding the other fundamental rights guaranteed by the ECHR.284.

Article 1 P12 reads as follows:

This provision codifies a general prohibition of discrimination that constitutes an independent right.285.The scope of the provision overlaps with that of Article 14 of the ECHR.286.

In drafting Article 1 P12, four categories of cases were specifically considered, namely:287.

Discrimination’ means that persons in situations that are comparable in relevant respects are treated differently without objective and reasonable justification. The ECHR does not prohibit a member state from treating groups differently in order to correct factual inequalities between them; indeed, in certain circumstances, failure to attempt to correct inequality by means of different treatment may constitute a violation of Article 14 of the ECHR.288.Member states have a certain margin of discretion in assessing whether and to what extent different treatment is justified.289.

General policies and measures that are seemingly neutral but have disproportionately harmful effects on persons or groups of persons who can only be identified on the basis of an ethnic criterion may also be considered discriminatory, even if they are not specifically aimed at that group. This may not be the case if those policies and/or measures are objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportional.290.

Furthermore, discrimination may arise from a factual situation. In such cases, there may be no intention to discriminate against people, but a lack of adequate action by the government against the disproportionately harmful effects of a situation on a particular population group may be discriminatory.291.

If a complainant has demonstrated that there is a difference in treatment – or that there is an unjustified lack of difference in treatment – it is up to the State to demonstrate that the difference (or the unjustified lack of difference) is objectively and reasonably justified. The burden of proof on the complainant is limited: according to the ECtHR, they must demonstrate ‘prima facie’ that there is a difference in treatment.292.

iii. Assessment

In the opinion of the court, the reasons put forward by the State do not justify the conclusion that the different treatment of Bonaire and its inhabitants in terms of (the speed of) climate adaptation measures is appropriate, necessary and proportionate.

The circumstances on Bonaire and in the Netherlands are different in the sense that Bonaire is at greater risk from climate change more quickly than the European Netherlands293.and that the inhabitants of Bonaire have already been suffering actual damage from the negative effects of climate change for some time, while it has also been known for a long time that the local authorities lack the resources and executive power to adequately protect the inhabitants from the negative effects of climate change. The differences that have emerged in these proceedings therefore indicate an even greater urgency in drawing up and implementing a coherent and integrated climate adaptation policy for Bonaire than existed for the European Netherlands.

Why a coherent and integrated climate adaptation policy was already implemented in the European Netherlands in 2016, but now a decade later there is still no climate adaptation plan available for the island of Bonaire, and it is also unclear when this will be available, therefore requires further explanation.

However, the arguments presented by the State to the court do not constitute adequate justification for the (acknowledged) difference in treatment (see also legal ground 11.23 to 11.27), so that it has not been proven that the difference in treatment serves a legitimate purpose and that the difference in (speed of) adaptation measures is reasonable and proportional.294.

iv. Interim conclusion: violation of Articles 14 and 1 P12

In view of the above, the court finds that there has been a violation of Article 1 P12 and Article 14 in conjunction with Article 8 of the ECHR.

h. Conclusion: violation of Articles 8 and 14 ECHR and Article 1 P12

In particular, in view of the considerations set out above in legal grounds 11.12 to 11.17; 11.24 to 11.28; 11.36 to 11.46, the court finds that, overall, the State has failed to fulfil its positive obligations under Articles 8 and 14 of the ECHR and Article 1 P12 towards the inhabitants of Bonaire.

i. Unlawful act

The aforementioned violation of Articles 8 and 14 of the ECHR and Article 1 P12 also constitutes a violation of the law as referred to in Article 6:162 of the Dutch Civil Code, which can be attributed to the State.295.

j. Allowability of claimed declaratory decisions

It follows from the considerations set out above in this chapter that, on the basis of Article 8 of the ECHR, the State has a legal obligation to protect the right of Bonaire’s inhabitants to life, health, well-being and the enjoyment of their own culture against the negative effects of climate change. It also follows that the State has failed to adequately fulfil this legal obligation, in violation of the prohibition of discrimination laid down in Article 14 of the ECHR and Article 1 P12. To that extent, the declaratory decisions sought by Greenpeace are allowable;296.in all other respects, they are dismissed.

Allowability of claimed orders

i. No exception to Article 3:296 Dutch Civil Code

The court has found that, on the basis of Article 8 of the ECHR, the State has a legal obligation to protect the right to life, health, well-being and the right to experience their own culture of the inhabitants of Bonaire against the negative consequences of climate change. In order to fulfil this obligation, the State can be ordered by the court to do so on the basis of Article 3:296 of the Dutch Civil Code, unless there are grounds for an exception.

Under Article 3:296 of the Dutch Civil Code, an exception applies if the law so provides or if this follows from the nature of the obligation or the legal act. The case law of the Supreme Court on orders to legislate is an application of this exception.297.

The Supreme Court’s case law on exceptions to the principle that the State can be ordered by the court to comply with a legal obligation incumbent upon it is based on two considerations.

The first consideration is that the court may not interfere in the political decision-making process that is involved in the enactment of legislation. The second consideration is that a legislative order must create a regulation that also applies to parties other than those involved in the proceedings.298.

In the opinion of the court, these considerations do not preclude the orders formulated in the operative part of the judgment, for the following reasons.

The consideration that the court may not interfere in the political decision-making process involved in the creation of legislation does not mean that the court may not enter the field of political decision-making at all. After all, the court must, on the basis of Article 94 of the Constitution, not apply legislation if so required by provisions of treaties that are binding on everyone. However, the court may not, by issuing a legislative order, interfere in political decision-making on the appropriateness of enacting legislation with a specific, concretely defined content. In view of the constitutional relationship between the branches of government, this is exclusively a matter for the legislator. This means that the court cannot order the legislator to enact legislation with a specific content.

The consideration that a legislative order entails the creation of a regulation that also applies to parties other than those involved in the proceedings is related to the fact that the civil court only issues binding judgments between the parties to the proceedings (cf. Article 236 of the Dutch Code of Civil Procedure). The court does not have the power to decide in a manner that is binding on everyone how a legal regulation should be worded. A legislative order therefore has the disadvantage that third parties who are not involved in the proceedings and who are therefore not bound by the judgment are nevertheless (indirectly) bound by that order because the legislation will also apply to them. The same applies to a general order to take measures.

The foregoing means that the court is not permitted to issue an order to enact legislation with a specific content. As in such a case would the objections mentioned in 11.53.1 and 11.53.2 arise. The court may therefore order the State to take measures to achieve a specific objective, as long as that order does not amount to an order to enact legislation with a specific content.299.

The orders formulated in the operative part are an application of the main rule of Article 3:296 of the Dutch Civil Code. They are not orders to take specific legislative measures, as they leave the State free to choose the measures to be taken.300.

ii. Scientific research now underway

The court dismisses the claim to, immediately after the judgment in this case is delivered, initiating, or causing to be initiated, adequate scientific research into the historical, current and future consequences of climate change on Bonaire, and making sufficient resources available for this purpose, and continuing to enable such research, in view of the considerations set out above in 11.25.

The updated elevation maps of the island, which are urgently needed, are currently being prepared. The State has recently commissioned scientific studies into various aspects of climate change on the BES islands,301.platforms for knowledge exchange have been set up302., and the BES islands have now been included in the regular research and reporting cycles of the KNMI and the PBL. The studies referred to here have been financed and, in some cases, already carried out. In view of this, Greenpeace has not sufficiently substantiated the interest that still exists in the claimed (and very broadly formulated) declaratory decision on this point.

No order where the State has discretionary power

The court dismisses the orders sought by Greenpeace in sections IV and V, because they amount to orders to enact legislation with a specific content on points on which the State has discretionary power (see legal grounds 11.13.4 and 11.15.1).

The court dismissed the claim for an order, under II.a, for the State, to base all its adaptation policy on Bonaire on, and test it against, the applicable international human rights treaties ratified by the Netherlands, and providing clear reasons for doing so, on the grounds of lack of interest.

The order claimed amounts to a confirmation of a rule that already applies without a court order – in general, i.e. not only in the legal relationship between the State and the inhabitants of Bonaire.

In other words, there is no question of a declaration regarding the legal relationship between the claimant and the defendant within the meaning of Article 3:302 of the Dutch Civil Code, nor is there a sufficiently concrete interest within the meaning of Article 3:303 of the Dutch Civil Code.

The court partially allows the orders claimed under II.b and II.c for the State to adopt an adequate adaptation plan for Bonaire as soon as reasonably possible and no later than 1 April 2027 and to ensure that it is implemented.

Although the State does not dispute that an adaptation plan for Bonaire must be drawn up as soon as possible, and although the intention to draw up this plan has existed since 2022, it is still unclear when it will be ready. In view of this, Greenpeace has a sufficient interest in an order.

The court will order the State to ensure that the targets303.set out in the United Arab Emirates Framework for Global Climate Resilience for the drafting and implementation of a national adaptation plan that also covers Bonaire are achieved on time, i.e. by 2030 (see 11.22.3).

It is still too early for a more far-reaching order to the State to ensure that the adaptation plan is also implemented in a timely manner; at this stage, it is not even clear what the plan will entail exactly.

The order claimed under VI. to establish a national carbon budget within six months cannot be allowed for the reasons stated in 11.15.1 and 11.15.2. The court will grant the alternative claim by ordering the State to provide insight into the (remaining) emission allowance for the Netherlands on which the State bases its decision-making and implementation of climate measures. The State is free to choose how it wishes to comply with this order, on the understanding that the method chosen must comply with the rules on transparent information provision included in the UN Climate Convention and the more detailed UN agreements based on it (see 5.16.6 and 5.16.7).

The court considers the claimed period of six months after this judgment to be reasonable, as the underlying information is already available according to the State. The State believes that this information already provides sufficient insight into the (remaining) emission allowance on which the current policy is based, but the court does not agree with the State.

l. Provisional enforceability

The State requests the court to declare that the claims II.a, II.b, II.c, IV, V and VIII are not provisionally enforceable.304.The State argues that allowing these claims would have far-reaching consequences in that the ministers concerned would then have to take additional decisions as soon as possible and enact legislation and regulations aimed at satisfying these claims.

The claims under IV and V are dismissed.

In view of the urgency of the climate problem as recognised by the UN and the EU, Greenpeace has a sufficient interest in its claim to declare the order provisionally enforceable. Because the State has put forward a reasoned defence against this, the court must weigh Greenpeace’s interest in being able to enforce the judgment, even if an appeal is lodged, against the interest of the State in maintaining the status quo until the appeal has been decided.305.

The court is of the opinion that the interest of Greenpeace (and the inhabitants of Bonaire) in the requested provisional enforceability outweighs that of the State in maintaining the existing situation. After all, in this judgment, the State is only ordered to comply with obligations it had already undertaken. Compliance with this order can be achieved in part by (effectively) implementing already applicable rules and policies and by carrying out ongoing or planned projects.

m. Costs of the proceedings

As the more unsuccessful party, the State must pay the costs of these proceedings, plus any additional costs. Greenpeace’s costs in these proceedings are assessed at:

The claimed statutory interest on the legal costs is awarded as stated in the decision.