By Mirjam Beeftink, University of Groningen, m.l.beeftink(at)student.rug.nl

At the time of writing there is a remarkable case pending in the Netherlands concerning the effects of air pollution on the health of the population. Two foundations and 57 individual plaintiffs have launched a case against the Dutch State in which they ask the court to order the State to reduce air pollution below the European maxima to the norms set in the World Health Organization (WHO) guidelines on air quality. If the case is successful, this will have significant consequences for the government as it will be ordered to protect the health of its citizens in a more effective manner by improving air quality. What are the chances of the plaintiffs succeeding in winning the case?

Air pollution in the Netherlands is responsible for thousands of premature deaths per year as well as tens of thousands serious diseases. For this reason, it is argued that the State is violating the right to health and health-related human rights. However, Dutch courts have remained reluctant in considering the right to health justiciable, which is a position taken towards economic, social and cultural rights in general. Any case build on these rights will thus prove problematic before the Dutch courts. To what extent this will be problematic in Milieudefensie and Others v the State will be discussed below.

The case revolves around clean air which is seen as a determinant of health. The right to health does not stand alone, but is related to numerous other human rights. Therefore, the plaintiffs invoke multiple human rights in support of their claim: Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR) (right to health), Article 21 of the Dutch Constitution (concerning a healthy living environment), Article 2 of the European Convention on Human Rights (ECHR) (right to life) and Article 8 ECHR (right to privacy and family life). The plaintiffs admit that a violation of these rights can only be established if a concrete norm is violated. They find these norms primarily in the WHO air quality guidelines.

Dutch courts have refused to grant provisions on the right to health direct effect. It is therefore unlikely that the invocation of Article 12 ICESCR will be successful. In some judgments the door seems to be left open for direct effect when there are special circumstances, but it remains unclear what these circumstances should entail and the plaintiffs have not argued the presence of such circumstances in the pending case. It is thus expected that the court will take the position of the State and rule that Article 12 of the ICESCR cannot be successfully invoked. Moreover, the court will probably find that no concrete rights derive from Article 21 of the Dutch Constitution, as courts have found this regarding Article 22 of the Dutch Constitution on the right to health.

However, this does not necessarily mean that the court will not rule in favour of the plaintiffs. As mentioned above, the claim is also based on the health-related civil and political rights enshrined in Articles 2 and 8 ECHR. The European Court of Human Rights has established the link between these provisions and environmental health threats in several cases. In addition, the Dutch judgment in the  Urgenda case  of 2015 is especially relevant and referred to by both parties to the dispute. In line with this judgment, if there is a high risk of ‘severe and life-threatening consequences for man and environment, the State has the obligation to protect its citizens from it by taking appropriate and effective measures’.

Thus, the question is whether the State has fulfilled its obligation to protect its citizens by taking appropriate and effective measures. Although measures have been taken, the State does not seem to contest the serious health deteriorating effects of the current air quality established by the plaintiffs. Considering the seriousness of these effects and the fact that the norms from the European Directive are not met everywhere in the country, the State does not seem to have protected its population sufficiently.

Therefore, if the court follows the line of the  Urgenda case , the chances of the pending case being successful are high. If the case is successful, that would show that although the right to health may not be justiciable as such (yet) in the Netherlands, health issues can nevertheless occasionally be adjudicated through civil and political rights which are granted direct effect. Still, in future cases Dutch courts should reconsider their position towards the justiciability of the right to health and treat it as an actual human right instead of merely a social objective for the State. How far a court is allowed to go and whether it may proscribe concrete measures to reduce air pollution is a question which remains unsettled. Moreover, to what extent are the non-binding WHO guidelines on air quality relevant for determining the duty of care by the State? It will be interesting to see what the court finds in this regard.