Summary of holding
The Supreme Court upheld the orders below and directed the Netherlands to reduce its greenhouse emissions by the end of 2020 by at least 25%, compared to 1990 levels. The Court found that under Articles 2 and 8 of the ECHR, the State was obliged to achieve this reduction because of the grave risks and severe impact on residents’ lives and welfare as a result of climate change. ¶ 6-7.
The Court considered whether Articles 2 and 8 of the ECHR obliged a signatory State to take active measures. The Netherlands argued that these articles did not oblige it to reduce greenhouse gas emissions, as the danger associated with these emissions was not specific enough to fall within the scope of the ECHR. The Court disagreed, holding that Articles 2 and 8 were not limited to specific persons but to society and the population as a whole; where environmental hazards endangered a region, Articles 2 and 8 offer protection to the residents of that region. ¶ 5.3.1. These articles also encompassed the duty of the state to take preventative measures to counter dangers, even uncertain ones, in accordance with the precautionary principle. Where risks are real and immediate, states are obliged to take the measures necessary to counter or reduce them. ¶ 5.3.2. Whether these measures are suitable are to be decided by the Court. ¶ 5.3.3. The Court found that, in relation to climate change, Articles 2 and 8 should be interpreted in such a way to oblige contracting states to do ‘their part’ to counter that danger. ¶ 5.8.
The Netherlands further argued that the Court’s order was impermissible for two reasons. First, the order amounted to an order to create legislation; second, that it is not for the courts to make political decisions such as the need to reduce greenhouse gas emissions. The Court disagreed, reasoning that court-issued orders to governments are fundamental to constitutional democracy and consistent with the rule of law. As the Netherlands has a legal duty to protect the right to life and the right to private and family life, it may be ordered to do so by the courts. The Court did not order any specific measures or legislation to be created; it left the State free to decide how it would achieve its 25% reduction in greenhouse gas emissions by 2020. ¶¶ 8.2.1 – 8.3.5.
Potential takeaways for future climate migration litigation
- The ECHR can impose obligations on States in relation to climate change. As a result, a State’s policies regarding climate change can be found inadequate and States may be held liable if they have failed to provide sufficient protection.
- Provisions of the ECHR must be interpreted and applied so as to make its safeguards practical and effective, and must be interpreted in accordance with the other general principles of international law.
- Although climate change is a global problem, under Articles 2 and 8 of the ECHR, the Netherlands is obliged to do ‘its part’ in its prevention and reduction. According to the UNFCCC, all countries have to take measures, as emissions of greenhouse gases take place from the territories of all countries and all countries are affected by it.