Phon van den Biesen
Phon van den Biesen is a specialist in the field of Governmental Tort-law, Government liability (compensation for damages and planning costs), protection of nature and environmental law, human rights, the laws of war and peace, and related areas of law. These cases involve legal assistance in civil and administrative areas of law in which International and European law, in addition to Dutch law, play a dominant role.
From late 1993 until the end of February 2007 Phon van den Biesen represented Bosnia and Herzegovina, as its Deputy-Agent and Counsel, before the International Court of Justice in The Hague in Bosnia’s Genocide case against Serbia. This case was submitted in 1993. He also represented Djibouti, again as its Deputy-Agent and Counsel, in its case against France, also before the International Court of Justice (from mid-2006 to early June 2008). Currently he represents the Republic of the Marshall Islands before the International Court of Justice, and acts as its Co-Agent and Counsel in the three cases that the RMI submitted at the International Court of Justice. The topic is nuclear disarmament; the defendant States are the United Kingdom, India and Pakistan. Moreover, he also regularly appears before the European Court of Justice in Luxembourg, usually representing Civil Society Organizations.
Phon van den Biesen was in the eighties one of the protagonists of the Social Legal Aid Movement. Among other things he was a co-founder of the Vereniging Sociale Advocatuur Amsterdam (Association of Social Lawyers Amsterdam) and also of the Vereniging Sociale Advocatuur Nederland (Association of Social Lawyers The Netherlands). Since early 2004 he also stands up – through Lawyers for Lawyers – for threatened human rights lawyers across the world who are persecuted or punished because of the cases they choose to handle while discharging of their professional duties. He served for 13 years as one of the Members of the Disciplinary Board in the Court District of Amsterdam.
Phon van den Biesen is a member of the Scientific Council of the Centre for Environmental Law at the University of Amsterdam. He regularly teaches at home and abroad on human rights, humanitarian law, environmental law and on recent developments in international case law related to the Genocide Convention.
He also teaches, internationally, empowerment-courses to lawyers and is currently working on a PhD on “The Independence of Lawyers, a Human Rights Perspective”.
- President of the Foundation Lawyers for Lawyers
- Vice-President of IALANA (International Association of Lawyers Against Nuclear Arms)
- Chair of the Board of Advisors of ATANA
- Member of both the Environmental Law Association and the Association of Environmental Lawyers.
RECENT PUBLICATIONS / PRESENTATIONS
- 2016 “International Rights and Mechanisms, Introduction for Iranian Lawyers”, The Hague, May 2016
- 2013 “The blind spot: trade with Israel in relation to the occupied territories, contribution to “Conference on Human Rights and Business”, Amsterdam, 13 June 2013
- 2012 “For Lawyers: Soft Law … Rather Important”, Contribution to the “Young Lawyers Conference 2012, Unlimited Opportunities” (“Young Bar Association Conference 2012, Unlimited Opportunities”), Boom Legal Publishers, November 2012
- 2011 “Case law of the European Court on Human Rights in Environmental Cases”, contribution to “The Victim in Environmental- and Health Cases”, WLP, December 2011
- 2011 contribution to “Building on Basic Principles, 25 Years Lawyers for Lawyers, 15 April 2011”, Foundation NJCM Boekerij, November 2011
- 2011 “Trade and Labeling of Israeli Settlement Goods”, in: Corporate Complicity in Israel’s Occupation, London Session of the Russell Tribunal on Palestine, November 2010
- 2011 “Will civil society take climate changers to court? A perspective from Dutch Law”, in: ‘Climate Change Liability’, ed. Michael Faure and Marjan Peeters, p. 227-236,
- 2010 “Pal voor de rechtsstaat” (In defense of the Rule of Law), in: ’35 years of Social Legal Aid, p. 121-129
- 2010 “Return to the International Court of Justice: An Effective Strategy to Support Productive Negotiations on a Nuclear Weapons Convention”, in: Frieden durch Recht?, p. 83-86
- 2009 “Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons”, Legal Memorandum, co-production of the International Association of Lawyers Against Nuclear Arms and the International Human Rights Clinic, Human Rights Program, Harvard Law School
SELECTION OF CASES
International Court of Justice
- Advisory Opinion on the Use or Threat of Use of Nuclear Weapons, participation as a member of a working group of IALANA (International Association of Lawyers Against Nuclear Arms) that produced model-pleadings and advised various States in the preparations of the oral pleadings, Opinion of 8 July 1996
- Bosnia and Herzegovina vs. Serbia (Genocide Convention) Deputy Agent and Counsel of Bosnia, Judgment of 26 February 2007
- Bosnia and Herzegovina vs. Serbia (Revision-case) Deputy Agent and Counsel of Bosnia, Judgment of 3 February 2003
- Djibouti vs. France (legal assistance treaty) Deputy Agent and Counsel of Djibouti, Judgment of 4 June 2008
- Republic of the Marshall Islands vs. United Kingdom, India en Pakistan (violation of the obligation to pursue and conclude nuclear disarmament), Co-Agent and Counsel of the Marshall Islands, cases are pending since April 2014
- representing Danielsson and others vs. European Commission, Request to take action against France with respect to French nuclear testing on Mururoa; Request declared inadmissible (T-219/95, 22 December 1995 )
- representing EEB and Stichting Natuur en Milieu vs. European Commission, litigation opposing the admission of certain pesticides; appeal declared inadmissible (T-236/04, 28 November 2005)
- representing Milieudefensie and SSLU vs. European Commission , appeal against the inadmissibility of the request for internal review, litigation opposing the pollution of the air, assigned job, the beginning of a breakthrough in the case-law ( T-396/09 , 14 June 2012 ) ;
- representing Stichting Natuur en Milieu and Pan Europe vs. Commission , appeal against the inadmissibility of the request for internal review, litigation opposing the admission of certain pesticides; appeal granted, the beginning of a breakthrough in the jurisprudence ( T-338/08, 14 June, 2012 ); both cases were rejected by the Court of Justice (C-401/12 and C-404/12)
- representing Client Earth, Générations Futures and Pan Europe vs. European Commission, appeal against the inadmissibility of the request for internal review,
- litigation opposing the admission of certain pesticides; dropped (T-8/13)
Right to legal assistance
- 1997, representing the Association of Social Lawyers Netherlands; together with the Dutch Bar Association Request for injunctive relief against the State of the Netherlands re the reduction of attorney-fees within the Legal Aid scheme. The injunctions have been granted by the President of the Hague Tribunal and that judgment has been confirmed by the Court of Appeals.
Nature and Environment
- Since 1983 numerous civil and administrative proceedings as a lawyer of natural / environmental organizations (e.g. Milieudefensie (friends of the Earth Interntional, Dutch affiliate), Natuur en Milieu (Nature and Environment), Greenpeace, WWF, Das en Boom (Badger and Tree), Water Pact, etc. and multiple residents organizations.
- Landmark decision: Supreme Court, 17 June 1986, NJ 1987/743, my first environmental case which immediately resulted in a breakthrough for environmental organizations: the Supreme Court ruled for the first time that civil society organizations have access to the civil courts for the protection of the interests which they represent by virtue of their by-laws and actual activities.
Right to Health
- 2014, Foundation Prevention of Youth-Smoking v. The Netherlands, based on the FCTC WHO Treaty, focus on the prohibition of communicating with the Tobacco Lobby
- 2016, Friends of the Earth The Netherlands v. The Netherlands, re Air quality in The Netherlands
Action against illegal or unsustainable logging
- 2011, Greenpeace, WWF, ICCO, Milieudefensie and NCIV oppose sustainability label admission for Malaysian timber. With success: Finding of the Board of Appeal of the Stichting Milieukeur (Foundation Eco-labeling), dated 19 October 2011; President of The Hague District Court forbids the State of the Netherlands to approve the Malaysian timber: 20 June 2011 (BQ8470)
- 2007 ‘Keurhout’ case II, Board of Appeal rules at the request of Greenpeace that the lawful-harvested-label for Malaysian timber must be withdrawn
- 2004, drafting of model European Directive regulating exclusion of unlawful harvested wood and wood-products to be imported into the European Union, commissioned by FERN, WWF and Greenpeace
- 2002 ‘Keurhout’ case I, Board of Appeal rules at the request of Greenpeace, WWF and Milieudefensie, that the label CIB must be withdrawn; 10 July 2002
- From the mid-nineties, long series of administrative proceedings representing Greenpeace against authorization of experiments with the cultivation of genetically modified crops. In most of those cases Greenpeace won.
- Since the early nineties countless civil and administrative proceedings representing Milieudefensie and Greenpeace, a.o. against Urenco Enrichment Facility, Dodewaard Nuclear Powerplant, Nuclear Powerplant Petten, Borssele Nuclear Power Plant.
- From the end of the eighties numerous civil and administrative proceedings representing environment-/residents organizations and surrounding cities against expansions of Schiphol Airport, Beek (Maastricht Aachen Airport), Lelystad, Welschap (Eindhoven Airport), Eelde (Groningen Airport) airports. Currently various administrative enforcement procedures and civil procedures to obtain compensation for damages on behalf of residents around Schiphol.
War and Peace
- 1984, representing twenty thousand plaintiffs in civil proceedings against the State of the Netherlands in order to obtain an injunction on the deployment of U.S. nuclear cruise missiles in the Netherlands; litigated up to the Supreme Court (10 November 1989, NJ 1989/248) and the UN Committee on Human Rights (No. 429/1990, 8 April 1993). Action rejected in all instances, but cruise missiles were not deployed
- 1990, representing Lawyers Association for Peace and others suing the State of the Netherlands, in order to obtain a ban on the Netherlands’ participation in the first Gulf War without prior Parliamentary consent. Claim is rejected. The Dutch Government in the end, indeed, requested – and obtained – permission from the parliament before entering this war.
- 2011, representing United Civilians for Peace and “Een ander Joods Geluid” (the association “A Different Jewish Voice”) as well as the Palestinian Human Rights Organization Al-HAQ, opposition against concession granted to the multinational enterprise Veolia for public transport in the region Arnhem / Nijmegen; is still pending.
Injunctions against freedom of expression
- President of the Court of Amsterdam, 10 December 1982, potato growers association ZPC sues Milieudefensie and demands that the ad campaign “Pas op, Gifpiepers” (Beware, toxic potatoes) ceases; demands of ZPC rejected, Milieudefensie may continue its campaign;
- President of the Court of Amsterdam, 19 April 1989, Shell is trying to prevent blockage of its laboratory in Amsterdam-North and summons persons and organizations that had publicly expressed their support for the blockade, the claims of Shell were rejected;
- President of the Court of Amsterdam, 14 December 2000 (AA9033), the operator of the Dodewaard Nuclear Power Station sues WISE in order to obtain a ban of an announced blockade of transport of nuclear waste. The claim is rejected because it is not a foregone conclusion that the blockade will be unlawful, the President considers that the operator has to tolerate some disturbance.
- President of the Court of Amsterdam, 9 June 2011 (BQ7690), CAIRN sues Greenpeace International in order to break a blockade of its drilling platform opposite the coast of Greenland, and to ban any hindering of its drilling platform by Greenpeace International, anywhere in the world. Only the claim re the actual lifting of blockade is granted (although not on the terms as demanded by CAIRN), all other claims of CAIRN were rejected, in the Judgment CAIRN was criticized by the Court for its secretive its (presumably, or not) existing Safety precautions.
- President of the Court of Amsterdam, 10 February 2016 (ECLI:RBASD:2016:537), injunction-case, defending a Dutch University Professor who was taken to Court because of some critical remarks she made about Eritrea’s strong and negative influence on the Eritrean Community in The Netherlands; injunction rejected
- In the eighties, dozens and dozens of injunction proceedings representing squatters as plaintiffs or defendants against property developers or against the public prosecutor.
- Landmark decision: Supreme Court, 14 January 1983, No. 11966, NJ 1983/267 on Schuring / Sweelinck Conservatory in Amsterdam, in which the Supreme Court further refined and restricted the existing case-law on eviction and ruled that the eviction of squatters through civil measures on the basis of a faked agreement is legally not possible.