Recht in Balans

Dutch citizens win climate case against the State

A victory for wholehearted lawyering Dutch citizens win climate case against the State

Together with 886 citizens, Dutch NGO Urgenda brought a climate liability case against the Dutch state. I joined this case as one of the co-plaintiffs. Our argument was that the Dutch state neglects its duty of care towards us, its current and future citizens, by not reducing CO2 emissions quickly enough to avoid catastrophic climate change.

We asked the judge to order the Dutch State to reduce its CO2 emissions with 25-40 % in 2020, the percentage that science and international agreements tell us is needed if we want to stay below the 2 degrees threshold.

The State acted unlawful towards Urgenda refusing to take timely climate action

Today was ‘judgement day’ and I what I heard in that courtroom exceeded my hopes and expectations. In a groundbreaking verdict, the judges agreed fully with the arguments presented by us and stated that the Dutch state has a duty of care, under Dutch tort law, to reduce its C02 emission to 25% in 2020. The court ruled that Urgenda had standing and that the State acted unlawful towards Urgenda, representing 886 citizens, under national tort law.

Court appealed to the protective logic of the rule of law and separation of powers

The court used European human right standards, such as art. 2 and 8 of the European Convention for Human Rights, the precautionary principle, the UN Framework Convention on Climate Change, and the treaty of the European Union to interpret the ‘equity’ principle of the Dutch tort article (art. 6:162 Civil Code) and concluded the Dutch state liable for a tort of negligence towards Urgenda.

The argument of the State’s defense, that climate policy is a matter of discretion for the executive power, was brushed aside when the court appealed to the protective logic of the rule of law and separation of powers: the judiciary’s rightful place is offer its citizens protection when the executive exercises its power in such a way that endangers the wellbeing and human rights of its citizens, and this includes the negligence of a government refusing to take timely climate action.

Court takes responsibility for its duty to acknowledge scientific facts

We, co-litigants, and the defense of Urgenda were amazed by the boldness of the court; and I was deeply touched that something really seems to be changing in the world if a court, which could have easily have hidden behind arguments like ‘the discretionary power of the executive to determine climate policy’, ‘the relative small contribution of the Netherlands to the global emission problem, thus refusing to establish proportionate liability’ or ‘the lack of a strong enough causal link between the actions of the Dutch state and the future damage caused by climate change’ – let alone simply refusing to grant Urgenda standing! – that with all these arguments present, the court made a bold decision to take responsibility for its duty to acknowledge scientific facts, apply the law and do justice in this matter of extreme societal importance.

Relief for Urgenda’s lawyers and for co-litigants

For me it was a moment in which my idealism touched ground and merged with the hopes of the other 100 co-litigants present in the room, (some of which held hands and many shed tears!), which were confirmed and ‘mirrored’ by the words of the judge who agreed with our most important grievances and demands.

Such was the surprise that Urgenda’s lawyers had to pull themselves together afterwards, overcome with emotion and relief – TV news images later showed their teary faces and yet none of them really tried to hide their tears: they were proud to admit that they had put their whole heart into this case – in what they described as ‘the case of their lifetimes’. I cannot help but think that some of this wholeheartedness rubbed off on the judges in this rightful judgement.

Encouragement and sound legal arguments to NGO’s in other countries

Regardless of wether the State will appeal against the decision, this was a huge victory for climate activists and environmental lawyers all over the world. It gives such encouragement and sound legal arguments to NGO’s in other countries, to start similar class actions on behalf of a liveable environment for current and future generations.

It is my wish that this precedent will be followed by many more similar cases in other jurisdictions, forming a ‘ius commune’ on climate justice, and that other lawyers and co-litigants will dedicate themselves as wholeheartedly to these cases as we did here in the Netherlands on this historic day.

 

By Femke Wijdekop, Earth Lawyer at Institute for Environmental Security & End Ecocide in Europe

Restorative Justice Conference

What’s happening in the Netherlands? Who’s in the Dutch integrative law community?

A compilation by Ayni Smith and Kim Wright

Restorative justice, a sustainable solution

On Tuesday april 21 2015, we (Kim and Ayni) attended the Restorative Justice conference at De Rode Hoed;
a debate ‘Restorative justice: a sustainable solution’ on the current practice of restorative justice led by Clairy Polak.
By Annemarie Penn, Jeroen Recourt and Klaartje Freeke, John Blad and Wiel Erens. Following award of Alex Brenninkmeijer the Bianchi Price.

Gathering at Amsterdam April 19 2015:

Graciously welcomed by Anna Van Der Leeuw it was fortuitous that a dozen busy lawyers of the local integrative law community were able to come together on very short notice.
The gathering was lively and action-oriented. Several follow-up activities were planned. In attendance:
Besides Anna and Digna de Bruin, Alex de Savornin Lohman, senior statesman of sustainable justice, was there with his business partner, Jaap van Straalen, and Jaap’s partner, Meta Vaandrager, a judge in the Amsterdam criminal court.
Our well-known and beloved earth lawyer, Femke Wijdekop is becoming known as a luminary. She is about to do a TED-x talk on Earth Law with Polly Higgins. (We always saw her light.) She was recently quoted in a top news story about the climate change lawsuit arguing on behalf of the rights of future generations.
Sonja Ortmans was also there. Sonja was at the IAHL conference in New Hampshire in 2002 and is still a big fan of Bill van Zyverden. She left law to become a full-time writer and wrote a book (in Dutch) called: Recht uit het hart, Een zoektocht naar holisme en compassie in het recht; ‘Straight Law from the heart, A quest for holism and compassion in the law’.
Klaartje Freeke is a partner in Freeke & Monster. Klaartje initiated a mindfulness training at the University of Amsterdam which hosted Charlie Halpern a few months ago. About 120 people attended and the group has been on-going with lawyers and law student attending regularly. The other named partner of the firm, Wikke Monster, who I met later at a Restorative Justice conference, is passionate about forgiveness and the mindfulness group has also explored forgiveness and compassion.
Petra Slingenberg drove up from The Hague. It seemed very serendipitous that Petra emailed Kim a few days before the journey began, not knowing we were headed to the Netherlands. She is the founder and managing partner of the full-service firm of Delissen Martens. She already has a holistic, peacemaking family practice, with plans to take it to the next level. She was the founder of the first divorce café in the Netherlands. (There are now more than a dozen.) She holds several leadership positions in professional organizations. (Yes, she is well-connected and accomplished!)
Minne van Woersem left law to become a massage therapist. When he learned about Earth Law, he became inspired to return to law for the purpose of healing and protecting the earth.
Fadime Kilic is a human rights lawyer, originally from Turkey. Her website shows an all-female team and says, “What we share with each other as a team, our love for the profession and our involvement in the issues that we have under our care. We only achieve a goal and that is the best solution for our clients.….. Through our passion for original solutions, our analytical ability, our determination and our courage we make the legal profession a creative profession.”

Restorative Justice, limiting the damage

such as neighbor disputes, divorces, but also crimes. Perpetrator and victim speak guided together to answer questions from the victim and to try to limit the damage.
Since the first debate evening in the Rode Hoed in 2012, the introduction of restorative justice in the Netherlands has taken a flight. It is a recognized part of victim policy, there is a legal basis preformed, be carried out at a number of courts pilot mediation, there are youth courts for conflict mediation in schools and there is an initiative note MP Jeroen Recourt (PvdA) on ‘the application of restorative justice in the criminal law’.

At Digna’s

Digna de Bruin’s interview in Happinez magazine about justice and dignity has been getting a lot of attention. The lawyers who thought they were alone are finding her and clients who want her holistic approach are seeking her out.
She’s working with the company Dialogue on Conscious Contracts, and she is pursuing a lawsuit to protect hundreds of trees from destruction to expand a golf course.
On our first night, we had a small gathering which included one of the Netherlands most famous lawyers as we engaged in lively conversation. We may do a program at his firm in October.
On Thursday, Kim and Digna went to a meeting to plan a Conscious Contracts workshop in October at Dialogue (Bussum). Stay tuned for announcements, but save October 9 2015!

Compilation by Ayni Smith and J. Kim Wright

Original article on Cutting Edge Law

Save the rainforest

Video by PRINCE EA American rapper, spoken word artist, music video director and rights activist;
“Dear Future Generations: Sorry”
 

April 22 is Earth Day

April 22 is Earth Day

A global event honoring our connection to Mother Nature and raising consciousness through ceremonies, community service, and educational offerings. On the first Earth Day in 1970, approximately 20 million people in US participated; now over one billion people in 192 countries plus 22,000 organizations are involved each year, making this the largest civil observance in the world.

The emergence of Earth Day and the environmental movement began in the 60s, when a legal conflict between Walt Disney and the Sierra Club prompted Supreme Court Justice William O. Douglas to write one of the most powerful dissents in the history of the environmental movement and his now famous quote:

“Who speaks for the trees?”

 

Evolutionary Legal Leadership

Amanda Boardman, founder of the Centre for Integrative Law in South-Africa (Cape Town) training her students, lawyers;

Evolutionary Legal Leadership

“Law is a cognitive profession and the legendary stressors in legal education and the practice of law can take a tremendous toll on cognitive capacity. Lawyers suffer from depression at triple the rate of non-lawyers… A number of innovative companies have instituted programs designed to enhance the bottom line. Research shows that perks such as onsite gyms, stress management classes, and mindfulness training produce vibrant workplaces and thriving employees. Forward-looking law schools have created wellness programs designed to relieve law student stress and improve well-being.”
~ Debra Austin, Killing Them Softly: Neuroscience Reveals How Brain Cells Die From Law School Stress and How Neural Self-Hacking Can Optimize Cognitive Performance

There are some pretty awesome developments happening around the world in the field of neuroscience and optimizing the use of our brains. Finally these developments are starting to filter into some of the more cutting edge law firms, which are realizing that you can curate a culture of cognitive wellness. But sadly 99% of firms (and sole practitioners) are continuing the insanity of doing the same thing and expecting different results. Lawyers work until they’re broken, then go on leave most of which is spent just trying to get back to “normal” ie being able to fall asleep without alcoholic or chemical assistance and actually being able to watch waves crash onto a beach or clouds scurry across the sky without an anxiety that one should be doing something else.

Sometimes it gets really bad. Many lawyers end up incapacitated by depression or anxiety, some needing hospitalization. There are firms worldwide including some in South Africa that pay for their lawyers to receive psychiatric treatment from time to time rather than put in preventive programs to stop this happening. Although it seems crazy, this is in line with the reactive approach prevalent in much legal thinking which you may have seen illustrated by the analogy of a cliff with a fence at the top and an ambulance at the bottom: It is said that no matter how many clients want a stronger fence, their lawyers insist on improving the ambulance service.

It’s not so funny when we might be referring to real ambulances. Ask the partners in your firm who’ve suffered heart attacks.

If we had any time to think about it (which we don’t because we’re billing by the hour) it’s pretty obvious that there’s a strong impact on our brains when our bodies are stressed. We also know that our anxiety levels play a huge role in our ability to learn and problem-solve. Are you familiar with the “my mind went blank in the exam” phenomenon or have you ever noticed that you don’t even hear a person say their name when they introduce themselves if it’s a high-pressure gathering or if you’re socially anxious? That’s because the part of your brain that retains information is not operative over a certain level of anxiety.

The good news is that all these scientists, doctors, neuro-biologists and cognitive behavioural therapists have done the research on how to stop us frying our brains with stress! And the even better news is the discovery of neuroplasticity which basically means that we can re-mould our brains with training. There are many benefits to basic mindfulness training which include developing emotional intelligence competence, excellent leadership skills, and the capacity for sustainable happiness.

You don’t have to wait until you fall apart to seek help. Let’s build some stronger fences.

TODAY’S TASK

The master of ceremonies, and developer of Google’s Search Inside Yourself (SIY) emotional intelligence curriculum, is Chade-Meng Tan. Tan describes two levels of mindfulness:
the Easy Way (bring gentle and consistent attention to your breath for two minutes, and when your attention wanders, bring it back) and
the Easier Way (sit without an agenda for two minutes, shifting from doing to being).
Right now, stop everything for 2 minutes and give it a try. You may want to set your phone unless that makes you anxious (I set mine for 4mins and then then do a 2 minute practice – weirdly I worry otherwise about being interrupted!).

It sounds simple but you may find it really difficult to focus only on your breath. Your mind may be jumping around like crazy (referred to as “monkey mind”). Don’t swing off into your thoughts, just bring your attention back to your breath. Give it a try. Seriously – stop reading and give it a try.

Now look at your schedule and work out how to schedule another 2 minute breather before a meeting or call that requires your full concentration. Set your phone so you’ll have enough time.

Still think this is silly? A lawyer who began meditating started a Facebook page called Meditating Lawyers to see if other lawyers meditated. She’s got over 100 000 following her. That’s a lot of silly lawyers.

Be well”.

By Amanda Boardman, Director of the Centre for Integrative Law

 

You may also like to read (Dutch):

‘Zo blijven advocaten psychisch gezond’

“Het beroep van advocaat is zwaar. De werkdruk is hoog… Intussen is de cultuur op veel kantoren er één van survival of the fittest. Wie niet mee kan wordt vaak als zwak gezien of ongeschikt. Het gevolg: psychische klachten of zelfs verslaving aan drugs en alcohol. Geluk blijkt in de advocatuur allesbehalve gewoon. Hoe komt dat en wat moet er aan gebeuren?”

Bronvermelding:  ‘Waarom advocaten zo ongelukkig zijn‘ – Artikel in Advocatenblad, oktober 2014
Geschreven door: Juriaan Mensch

 

 

More than the human scale, ecocentric pioneers in justice

Transforming Justice

For my chapter in the book Transforming Justice, published this coming autumn at Carolina Academis Press, I interview Digna de Bruin and many other lawyers who are committed to protecting the earth and her present and future inhabitants. Doing so in many ways: through introducing an Ombudsman for Future Generations (Mr. Jan van de Venis), making Ecocide punishable as the fifth crime against peace (Polly Higgins), calling for civil disobedience and nonviolent action as a protest against the fossil fuel industry (Kumi Naidoo; Greenpeace International) and assign legal rights to ecosystems (Cormac Cullinan; Wild Law-movement).

Pioneers in the ecocentric movement

What these lawyers and activists have in common, is viewing the world from an ecocentric perspective. Contrary to the dominant anthropocentric perspective, making man and his needs the centre of the world, they attribute an intrinsic value to nature, apart from the benefit and the practical value for man. According to this perspective human right and human demeanour are to be embedded in the greater context of the rhythm, the boundaries and the carrying capacity of the earth. A judicial system which does not accord with the laws of the earth, which is not tuned in on the boundaries to economic growth that the earth dictates, after all ignores the basic conditions of life itself and cannot be sustainable.

Therefore pioneers in the ecocentric movement attempt to broaden the horizon of judges, legislators and politicians, and to integrate the rights and interests of future generations and non-human subjects –ecosystems and animals – into the justice system. The aim is to make the justice system more holistic, in order to express the bond of man with the earth in a manner which goes further than vague obligations to care for the earth (in as far as economic interests of multi nationals are not to suffer as a result).
It is a peaceful endeavour, aimed towards harmony between man and nature, where however a heavy fight is required. Anthropocentric thinking is so firmly anchored within the judicial and political culture that speaking about assigning rights to non human subjects or establishing an enforceable duty to care for the earth evokes much defiance. Moreover, the lobbies of the fuel- industry and large agro-tech companies defend their dominant position tooth and nail and do not shy away from intimidation and human rights violations.
Kumi Naidoo even states that weekly two Environmental Defenders are being killed (!) as a result of their work protecting the earth.

Inner conviction driving the eco-pioneers

Therefore giving the earth a voice requires courage. Courage is the second common denominator the ‘eco-pioneers’ I interviewed have in common. By disobliging the established order they attract ridicule and sometimes even put their lives at risk. Where do they get this courage from? The pioneers appear to possess three power sources: a strong inner conviction, a community that supports them and regular contact with nature.

1. From my conversations with the ‘eco-pioneers’ it appears a deep inner conviction is driving them. The bond with the earth is a personally felt (and sometimes even spiritual) experience, which exceeds a rational explanation. Deep in their heart and soul they know: we belong to the earth, not the other way round. This personal ‘love affair’ with the earth is a power source from which they draw daily.

2. They are part of a network of kindred spirits. Fighting a losing battle on your own does not last, however: ‘community gives courage’ as Integrative Law-leader Kim Wright so felicitously states.
The solidarity, sharing knowledge and experience and providing mutual emotional support are important ingredients to persevere.

3. Regular physical contact with nature is a necessary condition in order to remain inspired in their work. Contact with nature relaxes, charges and inspires. Some pioneers even receive messages from the earth when they lie stretched out in the grass!

The eco pioneers who strive for more unification in justice, do so from a place of connection within themselves. They feel supported by a force or interest greater than the span of their individual life.
They belong to a community of courage and are in contact with nature which they defend. They commit their judicial expertise in order to express what they have always known in their heart: the earth has an intrinsic value and protecting this value deserves a central place in the Law.

By Femke Wijdekop, Earth Lawyer at Institute for Environmental Security & End Ecocide in Europe