BY: LEONORE TEN HULSEN, JUNIOR RESEARCH ASSOCIATE, PILPG-NL
In 2015, Urgenda - a Dutch NGO focused on a sustainable future - sued the Dutch government together with 886 other stakeholders, and won, giving the court case international exposure. Urgenda argued that the Dutch government was not fulfilling its duty to reduce the necessary amounts of greenhouse gas emission (GHG) against climate change. The Dutch government appealed, and on October 9th, 2018, the Dutch Court of Appeal confirmed its previous judgment. On December 20th, 2019, the request for cassation was dismissed. This case is the first climate case worldwide where a government was sued to failing to live up to its duty to reduce GHG. The Court’s verdict obliges the Dutch government to diminish its GHG emissions by at least 25% in 2020, in comparison to the 1990 level of GHG emissions. This court case has raised many questions on the government’s duty of care towards its citizens, trias politica, and the role that human rights can play in the protection of people against climate change. This blogpost will zoom in on just one of these aspects: the role of courts in trias politica.
Some have argued that the Urgenda case has caused a disruption of the trias politica. The trias politica refers to the division of powers in a democratic society. There are the legislative, executive, and judicial powers. Normally, these powers are balanced by a system of checks-and-balances. However, in the Urgenda case, some argue that this division seems to have been put aside as the Dutch courts have used their power to impose an obligation on the executive authority. This has even been called a ‘seize of power’ by the judicial authority. Others counter this argument by pointing out the positive obligations of the Dutch government to protect its civilians, mainly derived from international conventions that the Dutch government bound itself to. Moreover, as Max van der Veer points out, the actual execution of the verdict, meaning the way in which the government will actually diminish the GHG emissions, is left to the executive powers of the Dutch government. This way, the Dutch government will still be in charge of the execution of its obligation to reduce GHG emissions.
In the end, the outcome of the Urgenda case is simply the start of reaching the goal of Urgenda: taking action against climate change. In order to reduce the impact of climate change on our planet and livelihood, significant changes have to be made to the organization of our modern-day world, including the reorganization of industries and governance models at the national and international levels. The next critical point will be to see if the Dutch government will be able to fulfill its obligation and how the courts will respond if it does not.