1. Transparency and Access to Justice in Environmental Decision-making
Presentation on Paris2015 UN Climate Change Conference
The Impact of Transparency in
International Climate Issues
Paris 8 December 2015
Professor Jan Darpö
Faculty of Law/
Uppsala Universitet

2. Development of the modern international protection: international perspective
Protecting individuals
1948: Universal Declaration of Human Rights (UDHR)
1966: Covenant on Civil and Political Rights (CCRR) - classic rights
1966: Covenant on Economic, Social and Cultural Rights (CESCR)
1966: Convention on the Elimination of All Forms of Racial Discrimination
1979: Convention on the Elimination of All Forms of Discrimination against women
1989: Convention on the Rights of the Child
Protecting the environment
1972: the Declaration of the United Nations Conference on the Human Environment
1992: the Rio Declaration on Environment and Development
2000: Millennium Development Goals
2002: Johannesburg Declaration on Sustainable Development
You can name the major instruments and point out that the deterioration of the environment, including in transboundary context, in 60th has lead to the development of the soft law to protect the environment as a whole and a new generation of human rights (right to a clean environment). 2

3. Development of the modern international protection: regional perspective
Protecting individuals
1950: Convention for the Protection of Human Rights and Fundamental Freedoms
1952: First Protocol to the Convention
Case law of ECtHR
Protecting the environment – “Environment for Europe” process
1998: Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters
2003: Protocol on Pollutant Release and Transfer Registers
2005: Amendment to the Convention regarding genetically modified organisms (Art.6bis and Annex I bis)
Although, we should keep in mind the Central Counties are not Parties to ECHR 3

4. The Aarhus Convention THREE PILLARS
Art. 4-5: Environmental Information…
Art. 6-8: Public Participation…
Art. 9: Access to Justice…

5. Parliament & Administration
Access to what..?
Parliament & Administration
Courts
Supervisoryauthority
Public concerned

6. The Urgenda Case
Rechbank Den Haag (C/09/ / HA ZA )
- The international obligation to reduce the emissions of CO2 in 2020 with at least 25 %, compared with 1990 levels…

7. Urgenda ./. NL
886 members; individuals, organisations, institutions, local authorities
Urgenda; Insufficient measures to implement international obligations, breach of ”duty of care”, Articles 2 o 8 ECHR, Article 21 Grondwet…
NL (and EU); Sufficient measures, prerogative of the political decision-making…

8. RECHBANK DEN HAAG
Urgenda represents a general and collective interest…
No breach of Art 2 or 8 ECHR…
A legal obligation of the State towards Urgenda cannot be derived from the UN Climate Change Convention and associated protocols and Article 191 TFEU…

9. RECHBANK DEN HAAG
4.55: (..) under Article 21 of the Constitution, the State has a wide discretion of power to organise the national climate policy in the manner it deems fit. However, the court is of the opinion that due to the nature of the hazard (a global cause) and the task to be realised accordingly (shared risk management of a global hazard that could result in an impaired living climate in the Netherlands), the objectives and principles, such as those laid down in the UN Climate Change Convention and the TFEU, should also be considered in determining the scope for policymaking and duty of care.

10. RECHBANK DEN HAAG
4.79: It is an established fact that climate change is a global problem and therefore requires global accountability. (…) It compels all countries, including the Netherlands, to implement the reduction measures to the fullest extent as possible. The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care.

11. RECHBANK DEN HAAG
: It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another – but vital – respect. His authority and ensuing “power” are based on democratically established legislation, whether national or international, which has assigned him the task of settling legal disputes. (…) In a general sense, given the grounds put forward by Urgenda, the claim does not fall outside the scope of the court’s domain. The claim essentially concerns legal protection and therefore requires a “judicial review”.

12. RECHBANK DEN HAAG 5.1 The Court thus
…orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990, as claimed by Urgenda, in so far as acting on its own behalf…

13. Different procedural system
Adm
court
General
court
Adm appeal-
body/tribunal
Administrative or Civil procedure; burden of proof, responsibility of the court, costs, etc
Scope of the trial
Outcome; quash or reform…
Authority/
Permit body

14. The AC does NOT demand… Actio popularis Abstract norm control
Direct action in court
= A2J for the PC, but neutral to the ways….

15. Key issues: Standing Should trees have standing?
Sufficient interest/ Impairment of a right
Individuals
NGOs
*******
Should trees have standing?
(Chris Stone, 1972)

16. Court fees: between 100 - and 5.000 €, commonly fixed...
Costs for lawyers: between 0 and €…
Costs for experts: courts’ responsibility, tables, without limits…
Cost distribution: all models (LPP  each bears his/her own costs)…
Security/bonds…
Legal aid…

17. Effectiveness of A2J Duration! …
Appeals usually do not have suspensive effect…
Injunction sometimes difficult to obtain
= Many cases ‘won in court, but lost on the ground’ (‘victory on paper’): Lappel Bank (UK)

18. Courts cannot… …run the world, …but sometimes act in the forefront…

19. ….and finally… THANK YOU FOR LISTENING..!    jan.darpo@jur.uu.se
In English