Bonaire, Verein KlimaSeniorinnen and a nudge for…

This blog was written by Margherita Cornaglia

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Much has been written about the Hague District Court’s ruling that the Netherlands breached its human rights obligations by failing to protect the people of Bonaire from climate change, and I’d point you first to the comments by Lucy Maxwell and Joana Setzer, two experts on climate litigation and government climate claims. But I’d like to focus on five takeaways from the judgment which will be of interest to UK climate lawyers. I don't plan to spend much time on the background, but here is my take on the Court's more significant approach to the case. Paragraph references are to the English translation of the Dutch Court’s judgment, which you can find here.

Key facts

First, the historical relationship between Bonaire and the Netherlands matters for the court’s analysis. From 1954 until 10 October 2010, Bonaire was part of the Netherlands Antilles, a separate country within the Kingdom of the Netherlands. Following a 2004 referendum and a 2005 outline agreement, the Netherlands Antilles was dissolved in 2010 and Bonaire became part of the Netherlands as a public body with an administrative structure akin to a municipality. Since then, governance has been split between the island-level Public Body of Bonaire and the Dutch State, with a subsidiarity principle that as many tasks as possible should be carried out locally. This is relevant to the Court’s findings on jurisdiction and Article 14, which I discuss below. (see paragraphs 1.8, 4.1, 7.2-7.6)

Second, the Court underlined that the domestic Climate Act’s accountability mechanism rested on the scrutiny provided by the Netherlands Environmental Assessment Agency’s annual Climate and Energy Report (the KEV). The court placed importance on the KEV 2025’s core finding that it was “highly unlikely”, with less than a five per cent probability, that the Netherlands would meet its statutory 55% reduction target by 2030. The KEV’s role is strikingly close to the UK Climate Change Committee’s (CCC) progress monitoring under the Climate Change Act. In those circumstances, UK lawyers may wonder whether the CCC’s findings in the UK, which are usually given short shrift by the courts, may have renewed strength in the light of VKS’s “effectiveness in practice” lens. Will the CCC’s progress reports form a stronger basis for arguing that the UK government has breached human rights because it is failing to effectively implement the Climate Change Act in practice? (see paragraphs 6.6 and 11)

Third, the court records that, as to the UN climate regime, the Netherlands is bound for the European Netherlands and that those instruments have not been extended to the Caribbean Netherlands. Furthermore, within the Kingdom’s Charter, climate change has never been designated a “Kingdom affair”, so it has consistently been a national affair. Despite what might look like legislative insulation for the State in respect of climate effects in Bonaire, the court held that human rights obligations apply irrespective of, and beyond, such internal arrangements. Put crisply, devolutionary lines did not dilute Convention duties or form a “shield” from claims of this nature. (see paragraphs 5.35 and 7.8-7.9).

Fourth, the court’s summary of why the treatment of climate cases before the European Court of Human Rights differs from the Strasbourg Court’s traditional environmental jurisprudence is helpful. The Court agreed with the novel approach to climate cases in VKS (you can read Richard Turney KC’s, Alex Goodman KC’s and Miranda Butler’s analyses of VKS here, here and here). It explained that classic environmental cases often centred on specific, identifiable sources of harm, clearer causal lines and discrete remedial measures. Climate change, by contrast, arises from the aggregate accumulation of greenhouse gases from many sources, across borders and over time, raising complex questions of burden sharing and intergenerational fairness. That is why the Court noted that a direct copy‑paste from environmental case law would not do. (see paragraphs 10.8.1 to 10.8.4) Could this increasing convergence between different judiciaries in treating climate cases distinctly, and perhaps in a manner that most favours strategic litigants, herald a more progressive line of public law climate cases in the UK, if claimants make the case for a renewed approach that allows judges to break free of the strictures of traditional environmental claims?

Fifth, the court also concurs with VKS’s treatment of association-led claims in the climate context: given the collective nature of climate risk and harm, associations may vindicate Convention rights at group level. (see paragraphs 10.17-10.18) That made me think of the UK Supreme Court’s discussion in Lloyd v Google, in an entirely different context. There, Lord Leggatt gave clear guidance on the value of representative proceedings where there is a genuinely shared interest. While Lloyd was a case focused on an entirely different context (data rights in the tech space), what Lord Leggatt says at paragraph 67 seems to me to be directly applicable to climate or environmental claims:

“The mass production of goods and mass provision of services have had the result that, when legally culpable conduct occurs, a very large group of people, sometimes numbering in the millions, may be affected. … In such cases, it is necessary to reconcile, on the one hand, the inconvenience or complete impracticality of litigating multiple individual claims with, on the other hand, the inconvenience or complete impracticality of making every prospective claimant (or defendant) a party to a single claim. The only practical way to “come at justice” is to combine the claims in a single proceeding and allow one or more persons to represent all others who share the same interest in the outcome.”

So, as courts increasingly accept that the collective nature of the climate crisis requires collective responses, it is not a long leap to foresee growth in collective and representative claims in the UK, not just in public law but also in private law.

Five key takeaways for UK lawyers

I think UK lawyers should focus on these five key points in the Judgment.

First, the overlap between adaptation and mitigation. The judgment, echoing VKS, treats mitigation and adaptation as a single legal conversation. It starts from the overall assessment logic and returns to it when applying Article 8 ECHR: the court must look at mitigation, adaptation and procedural safeguards together, and many measures serve both ends. When the court turns to Greenpeace’s claims, it is explicit that it will assess the climate measures “as a coherent whole” taken by the competent authorities, without letting internal divisions of responsibility distract from the rights analysis. (see paragraphs 1.6, 10.24, 11.1) As many will know, the UK is being taken to Strasbourg on the ground that it has breached its positive obligations when it comes to climate adaptation. The Dutch court’s views on the distinctness (or lack thereof) of climate mitigation and adaptation obligations will likely shape the debate as that case proceeds upwards. One to keep an eye on.

Second, the court’s interpretation of the applicability thresholds in articles 2 and 8 climate cases and in light of VKS, are worth noting. Applying VKS, the court held that, in such cases, the courts assume 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. 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.” (see paragraphs 10.25-10.26)

Consequently, the Court delineated a clear principle when it comes to applicability and shifting of the burden of proof, which was perhaps less expressly formulated in VKS itself. Unshackled by the need to demonstrate applicability, Claimants in climate cases must thus focus on whether reasonable measures the authorities failed to take could have had a real prospect of mitigating the harm. This argument on burden and causation is (I think) untested in the UK. Will prospective claimants seek to push it?

Third, Article 2. The Dutch court is certainly not the only one to have noticed the residual lack of clarity in VKS on Article 2 in collective climate claims. (see paragraphs 10.27-10.28, and 11.3.2) The court addressed this by keeping imminence at the heart of Article 2. While it accepted that certain groups in the Caribbean region face increased risks of illness and mortality and that temperature and flooding risks on Bonaire are grave and growing, it still proceeded under Article 8 because Greenpeace had not shown an acute, generalised, life‑threatening situation at the collective level for “the inhabitants of Bonaire”. Question: what do people think about this? Is this really the right way to distinguish 2 and 8? It is certainly consistent with the ECtHR’s environmental jurisprudence on Article 2, where imminence is core to the threshold. But given the court’s own emphasis that climate is a “new beast”, is this the right long‑term organising principle?

Fourth, at paragraph 11.24.1 the Court made an interesting comment on state duties of care which may go unnoticed. It said that the content of a state’s duty of care is influenced by the state’s public commitments on climate change, including, e.g., commitments to assist small islands and other vulnerable areas to protect against climate impacts. Civil society and strategic litigants have long sought to give a legal edge to non‑binding promises and voluntary commitments by states and corporates alike. In that light, does the Dutch court’s ruling suggest the beginnings of a liability framework that would allow public commitments to ground accountability for states, and, perhaps, for corporates too, much as the logic of Urgenda informed Milieudefensie v Shell, with strong rulings against states often adapted in corporate litigation?

Fifth, a word on extraterritoriality and discrimination. You might recall that the Grand Chamber in Duarte Agostinho rejected a broad theory of extraterritorial climate jurisdiction over multiple respondent states, holding fast to Article 1 ECHR’s conventional bases of jurisdiction. Bonaire is different: the island is part of the Netherlands, and its inhabitants are more plainly within the State’s jurisdiction. The Court also found differential treatment amounting to unlawful discrimination because the Netherlands devoted markedly greater effort, resources and planning to climate protection in the European Netherlands than in Bonaire, without an objective and reasonable justification (see paragraph 11.46). That conclusion sits alongside the court’s clear view that the inhabitants of Bonaire fall within the State’s jurisdiction: once jurisdiction is engaged, equal enjoyment of Article 8 rights cannot be diluted by geography or institutional complexity. Taken together, those points may encourage claims that examine whether other states with overseas territories (or perhaps ex colonies?) have created a two‑tier climate safety net, especially where there is evidence of long‑standing knowledge of local risks but materially lower investment in adaptation or mitigation for those communities. Duarte Agostinho rules out broad extraterritorial theories, but where a state exercises territorial jurisdiction or decisive control (through constitutional ties or perhaps control over key levers such as funding and infrastructure), Articles 14 and 8 could provide a direct route to challenge systemic climate failures by developed states towards climate‑vulnerable jurisdictions.

Conclusion

The Dutch Court’s decision in Bonaire must have us all thinking about how it may influence strategic climate litigation elsewhere. As we have seen with Urgenda, when an approach works, it is rapidly replicated in other jurisdictions. The UK’s strong historical ties with climate vulnerable countries may make it a particularly well-suited target for this kind of litigation.

Do keep an eye out for our subsequent Climate and Environment Law Blogs, with expert analysis of key case developments of interest to UK lawyers. And as ever, don’t hesitate to reach out if you’d like to discuss any of the above – we are keen to hear your thoughts!