On the 9th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.
Greenhouse Gas Emissions and Human Rights
The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).
According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73).
The ECtHR has recognised the relevance of several Convention articles in regard of environmental issues, but the Court has not (yet) ruled on the issue of climate change. In any event, the deduction of a specific minimum emission reduction rate from Articles 2 and 8 depends on a particularly far-reaching interpretation of these standards. For that reason, it seems that the Urgenda judgment goes beyond the standards set by the ECtHR. This is explicitly authorised by Article 53 of the ECHR, but seems problematic in light of the case-law of the Dutch Supreme Court, which has held that Dutch courts cannot interpret the Convention more extensively than the ECtHR.
The Separation of Powers
The appeal court’s ruling raises further questions related to the role of courts in a democratic system. Article 94 of the Dutch Constitution obliges courts to disapply domestic law when it conflicts with treaty provisions ‘that are binding on all persons’, and it is uncontested that Article 2 and 8 ECHR fall in this category. Nonetheless, Article 94 obliges the courts only to disapply domestic legislation and it does not authorise them to order legislative measures to ensure compliance with international law. According to the Dutch Supreme Court, the decision of whether and how to adopt legislation ‘requires a balancing of a variety of interests’ and involves ‘a political judgment that a judge cannot make’ (Waterpakt ruling, para 3.5).
In this context, it is unsurprising that arguments related to the separation of powers were raised in Urgenda. The district court addressed them extensively, considering that ‘Dutch law does not have a full separation of state powers’ (para 4.95) and that judges have the duty to uphold democratically established legislation, ‘whether national or international’ (para 4.97). At the same time, the first-instance court acknowledged that ‘great restraint or even abstinence’ is required in the review of policy considerations that involve a variety of interests (para 4.95). For this reason, the court did not ‘order or prohibit the State from taking certain legislative measures or adopting a certain policy’ (para 4.101). The only imperative imposed by the court was the minimum reduction of 25 % (para 4.86). The court of appeal followed the same reasoning. It noted that the order to reduce emissions did not necessarily require legislative action and gave ‘the State sufficient room to decide how it can comply’ (para 67). Upon reflection, it seems that this argument underplays the significance of imposing a specific minimum reduction rate, which goes far beyond the disapplication of domestic law in a concrete dispute. By obliging the government to ensure an emission reduction of 25 %, the Hague courts expanded their role in securing compliance with the ECHR, redrawing the separation of powers established by the Dutch Constitution.
The Margin of Appreciation and the Flip Side of Subsidiarity
Under the ECtHR’s own case-law, Member States have a ‘wide margin of appreciation’ in matters of general policy (eg Hatton and Others v UK, para 97). Accordingly, the Dutch State invoked its margin of appreciation in the Urgenda case, arguing that various reduction schemes are conceivable and that the State has to balance the need to reduce emissions against other interests, ‘such as those of the industry, finances, energy-provision, healthcare, education and defence’ (para 30). Nonetheless, the Court of Appeal considered that the State’s margin of appreciation could not justify a commitment below 25 %. This margin concerned only the choice of measures to be adopted in pursuit of the 25 % reduction (para 74).
In A and Others v UK, the ECtHR noticed that ‘the doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court’ and that ‘it cannot have the same application to the relations between the organs of State at the domestic level’ (para 184). This makes sense, if only because domestic legal systems draw the boundary between law and politics in different ways. Domestic constitutions establish diverse divisions of labour between different branches of government, and, consequently, domestic courts play diverse roles in ensuring compliance with the ECHR. For that reason, the ECtHR’s own application of the margin of appreciation cannot be directly copied in the context of domestic judicial review.
Irrespective of domestic constitutional arrangements, the Member States of the CoE have recently reconfirmed that the primary responsibility to secure Convention rights lies with domestic authorities. They welcomed ‘the further development of the principle of subsidiarity and the doctrine of the margin of appreciation’, which can be understood as a demand for more judicial restraint from the Court. The flip side of such subsidiarity, however, might be that domestic courts adopt a more active role in securing Convention compliance, in particular in Member States where domestic constitutional arrangements traditionally left that task to the ECtHR. From this perspective, the increased emphasis on the principle of subsidiarity by the States party to the ECHR provides a justification for the intrusion of the Hague appeal court into the realm of politics as traditionally understood in Dutch constitutional law.