On December 20, 2019, the Supreme Court of the Netherlands confirmed the judgements of a District Court and an Appeal Court requiring the Dutch Government to achieve a reduction of greenhouse gas (“GHG”) emissions of 25% by 2020 compared to 1990, instead of the 20% reduction that the government had envisioned since 2011. The case was brought by the Urgenda Foundation — a Dutch NGO — and has resulted in a landmark decision that may influence climate change litigation in other countries across Europe, such as the lawsuit filed by NGOs in Germany on January 15, 2020.

Three Striking Conclusions for International Climate Change Law

The Dutch Supreme Court’s decision contains three striking messages:

  1. The decision considers that the European Convention on Human Rights (“ECHR”) imposes a positive obligation on countries to take measures to mitigate climate change. On the basis of an expansive interpretation of Articles 2 (right to life) and Article 8 (right to private and family life) of the ECHR, the Court takes the view that climate change poses such a “real and immediate” risk to the citizens of the Netherlands that the ECHR requires the Dutch Government to mitigate climate change.
  2. The decision also takes the view that countries have an obligation to take measures to mitigate climate change even if their share in GHG emissions is minimal. The Court concluded from the UNFCCC and its protocols and principles of international law that each country has an individual responsibility to do its part in resolving a global problem, and can be held accountable in a Court. This is in line with the Paris Agreement, which recognizes that climate change is a global responsibility requiring the “engagement of all levels of government and various actors.”
  3. The decision interprets different open-ended international obligations, “soft law” commitments and scientific reports to conclude that the target of 25% reduction is legally binding on the Dutch Government in light of articles 2 and 8 of the ECHR. This means that in view of the Dutch Supreme Court not only countries are individually responsible to fight climate change, but courts can also determine the “fair share” of climate change mitigation of each state.

Violation of the Principle of Separation of Powers?

The Supreme Court rejected the Dutch Government’s arguments that the order of the District Court requiring it to reduce GHG emissions by 25% instead of 20% constituted an order to legislative and that it is not for the judge to make political assessment on the reduction of emissions. The Supreme Court considered that there is no order to legislate because the government is free to choose the measures that it considers appropriate to attain the 25% reduction. It also argued that climate change is such an exceptional situation and poses such a threat that measures are urgently necessary.

A Precedent for a Trend in Europe?

The Supreme Court’s decision is a landmark decision in climate change litigation, but its full impact on climate change litigation across Europe will depend on at least three issues:

  1. To what extent NGOs will be able to rely on the ECHR in their climate change litigation against governments in other European countries that are contracting parties to the Convention? This will not only depend on the possibility to rely on the direct application of the ECHR in national courts but also on the extent to which those courts will be willing to follow the Supreme Court’s expansive interpretation of Articles 2 and 8 of the ECHR.
  2. Related to the first question, would the European Court of Human Rights agree with the Dutch Supreme Court’s interpretation of Articles 2 and 8 of the ECHR? The Dutch Court recognized that the European Court has never decided on climate change issues, but did not think it was necessary to request its opinion. While the ECHR establishes the principle of subsidiarity and allows national courts some discretion when applying the Convention, an European Court’s interpretation of the ECHR in light of climate change could have a significant impact across Europe both in term of litigation and policy action.
  3. Last but not least, to what extent might courts extend the conclusion that each country has an individual responsibility to reduce emissions to companies? For example, do companies have an obligation under article 2 ECHR to mitigate climate change?