The recent Urgenda decision issued by the Hague District Court marks the first time ever that a court has ordered a government to curb a State’s greenhouse gas emissions, and the first case globally in which the tort of negligence has been successfully used to hold a State liable for its failure to adequately mitigate climate change.

This domestic outcome is relevant to the international climate change negotiations and the global agreement which is being finalized in December this year, due to the bottom-up nature of said agreement. That is, state Parties to the Agreement will be bound to provide and regularly update a mitigation contribution, although the quantified amount will be ‘nationally determined’ on a State by State basis. Thus, the role that domestic civil societies play in influencing their respective governments will have an important impact on the overall international climate regime. The judiciary is just one of many avenues the civil society can use to apply pressure on governments to increased their ambition.

The following essay provides a comparative analysis of the New Zealand and the Netherlands’ legal systems, and asks whether an the Urgenda case could be replicated in NZ courts. This comparison will provides an example of how different jurisdictions have entirely differently legal and constitutional relationships to international law, and thus the international climate change regime.

I      Introduction

On 24 of June 2015, the environmental foundation Urgenda and 900 co-plaintiffs brought a successful action against the Dutch government, requiring it to adopt more stringent climate policies. The District Court of The Hague (the Dutch Court) required the Netherlands to reduce CO2 emission by a minimum of 25 percent (compared to 1990) by 2020.[1] This is the first time a judge has legally required a state to take action against climate change. In July 2015 the New Zealand (NZ) Government announced its Nationally Determined Contribution (NDC) ahead of the COP21 negotiations in Paris. It committed to reduce greenhouse gas (GHG) emissions to 30 percent below 2005 levels by 2030.[2] This has been described as inadequate.[3] In light of the Dutch decision in Urgenda v Netherlands (Urgenda) groups in many countries, including NZ, are considering what action they can take against their respective states in order to challenge unsatisfactory climate policy. The legal traditions and cultures of the Netherlands and NZ have informed the development of their respective legal systems in such a way that the Dutch Court has reached a decision in Urgenda that a NZ court is incapable of replicating.

II       Legal History and Context

A     Burgerlijk Wetboek: The Dutch Civil Code

The Dutch Civil Code is the product of the intersection of Roman, French and German law.[4] The Private law of the Netherlands is founded on Roman law, codified in the Corpus Juris Civilis of Justinian. In 1811 the Netherlands became part of the French Empire and the Code Napoléon was adopted. In 1838 the first Dutch Civil Code was enacted; it was not a strict translation of the Code Napoléon; some rules were replaced with the Roman-Dutch law that had preceded French occupation. In 1992 a new Dutch Civil Code was introduced, influenced by the German Civil Code (Bürgerliches Gesetzbuch).[5]

The Dutch Civil Code expresses general principles of law; it is assumed to regulate all practical situations. Where novel facts arise and a situation is not covered by existing statute, the courts can fill the gap in the legislation through analogy to a comparable provision. Where novel facts arise, the courts must widen the scope of the code through interpretation and application. The Code is, therefore, interpreted broadly.[6]

By contrast, NZ belongs to the Common Law tradition. Its constitution is unwritten and largely resembles that of Britain, with some modifications.[7] NZ inherited the laws of Britain (as they existed in 1840) under the English Laws Act 1854 but has since developed its own legal culture, though influenced by that of England.[8] The most important aspect of NZ constitutional law is parliamentary supremacy.[9] Legislation is the supreme form of law in NZ.[10] Judge-made common law can be overruled by legislation passed by the legislature.[11] The NZ judiciary, therefore, has a similar function to the Dutch Judiciary. Both are primarily concerned with the interpretation and application of legislative provisions.

The NZ judiciary has lawaking powers unavailable to the Dutch, due to the binding nature of judicial decisions in common law. Legislation in NZ often operates as a clarification of preceding common law, indicating Parliament’s intention for how the law is to develop. This means legislation is often prescriptive and interpreted narrowly by the judiciary where novel facts arise; a stark contrast to the widening approach that Dutch courts take to interpretation.

III    The Urgenda Decision

The Dutch government was required to comply with stricter emissions targets because the Court found the government had a duty of care to take reasonable precautions to protect Urgenda from hazardous climate change. It would be acting unlawfully by not complying with that duty. The decision was primarily founded in the doctrine of hazardous negligence, and was significantly influenced by the Dutch Constitution, the relevant international legal framework, and the role of the judiciary in the Dutch legal system.

A     The Judiciary

The judges of the Netherlands have secured themselves an almost free discretion to apply statutory provisions as they please.[12]They may not apply rules systematically, and can reason around statutory provisions to achieve a particular result.[13] The outcome of litigation is often uncertain. Nor are the Dutch courts bound by their previous decisions, or the decisions of higher courts.[14] This discretion can be attributed, at least in part, to the Dutch legal principles of reasonableness and fairness. Students are taught that it is not appropriate to apply the textual meaning of a statutory provision in all cases; it is more important that at all times the law produce a fair and reasonable outcome.[15] The concept of ‘good faith’ can be seen throughout Dutch law, particularly in the law of obligation and contracts.[16] Contracts have the legal effect of their express terms, but also of provisions imposed by statute, common practice and principles of reasonableness and fairness. As such, a binding contractual provision may not apply if, under the circumstances, it would be unacceptable according to the standards of reasonableness and fairness.[17] Though it is less common than in contract, a statutory provision or rule of mandatory law must be set aside where it would unexpectedly lead to unacceptable consequences for one of the parties.[18] The Dutch Civil code, it can be argued, gives too much discretion to the courts, undermining certainty and uniformity. In the context of the Urgenda decision this means that an appeal was inevitable, but the result of such an appeal is completely unpredictable.[19]

Dutch judges tend to be more predictable where international and European conventions are in play. This reflects the hierarchy of laws. When two valid laws are in conflict the higher ranked law takes precedence, irrespective of when it came into force. The ranking order is as follows:[20]

  1. Treaties (with immediate force of law)
  2. Acts of Parliament
  3. Constitution
  4. Orders in Council
  5. Ministerial Regulations
  6. Provincial Ordinances
  7. Municipality Ordinances

This hierarchy illustrates two points relevant to the Urgenda decision: the relative influence of the Dutch Constitution, and the monist approach of the Dutch legal system to international law.

B     The Constitution

The Constitution of the Netherlands is not supreme; Article 120 stipulates that: [21]

The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.

In other words, a court may not invalidate an Act of Parliament or international treaty solely for its inconsistency with a constitutional rule. While the constitution can never set aside an Act of Parliament, the courts can use it as a means of interpretation and to fill an ‘open-norm’ in private law.

Article 21 of the Dutch constitution states:[22]

It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.

This article recognises Dutch citizens have a right to a habitable environment, and imposes a duty on the government to ensure it remains so. Constitutional environmental protections are necessary because the Netherlands is a densely populated, low-lying nation, much of which is below sea-level.[23] This duty of care was primarily intended to cover water management and sea-walls.[24] The Court held that the manner in which this duty is carried out is subject to the government’s discretionary powers.[25] Article 21 indicates the government has a responsibility to ensure the environment of the Netherlands remains habitable, but it cannot be used as a means to invalidate Acts of Parliament.[26] Nor can it be used as a means of challenging government policy that is made with lawful authority. The article gives ‘the authorities’ a wide discretion to adopt whatever means it deems appropriate. The Court found this article could not sustain an action against the government itself;[27] however, Article 21 did aid the court in assessing the government’s tortious liability, as discussed further below.

Unlike the Netherlands, NZ does not have a written constitution. NZ law protects the rights of its citizens through the New Zealand Bill of Rights Act 1990 (NZBORA). The NZBORA does not prevail over other forms of legislation,[28] instead it imposes a duty on judges to prefer an interpretation of statute if it is consistent with rights contained within.[29] This puts the Bill of Rights in a similar constitutional position to that of the Dutch Constitution in its hierarchy of laws. The NZBORA, however does not contain a right to the environment, or any provision that approximates Article 21 of the Dutch Constitution.

C     International Legal Framework

The Dutch hierarchy of laws reflects the monist approach of the Dutch legal system to international law. An international treaty is automatically incorporated into domestic Dutch law upon ratification, but a Dutch citizen can only derive a right from that international law if it “connects one and all”.[30] International obligations, are also used as a means of interpreting domestic law. A statutory provision or legal standard cannot be interpreted or applied in a manner that would mean the State had violated an international law obligation unless no other interpretation or application was possible.[31]

In Urgenda the Court considered whether the State had obligations to Urgenda imposed by International Law. The Court considered the State’s obligations under the United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol (including the Doha Amendments) and the “no harm” principle. The “no harm” principle was recognised a rule of customary international law in 1996 by the International Court of Justice and provides that States have: “… the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond their national jurisdiction.” [32] The Court in Urgenda recognised that the State was bound by these international institutions but, consistent with article 93 of the Constitution, held that if the State fails one of its obligations towards one or more other States that does not imply it has acted unlawfully towards Urgenda.[33]

The Court then turned to the State’s obligations under the European Convention for Human Rights (ECHR), in particular Articles 2 and 8. Article 2 establishes a right to life,[34] while Article 8 establishes a right to respect for private and family life stating “Everyone has a right to respect for his private and family life, his home and his correspondence … [and] there shall be no interference by a public authority with the exercise of this right …”[35] The Court recognised a growing awareness that human rights law, particularly the ECHR, mutually reinforces environmental law. [36] The Court found that Urgenda could not sustain an action against the government based on a violation of the personal rights contained in these provisions. [37] As a legal person, Urgenda’s physical integrity could not be violated as with a natural person.[38] The Court did recognise, however, that the principles described above in relation to other international obligations applied.[39] In particular they recognised that the ECHR is relevant in interpreting and implementing “… open private-law standards such as the unwritten standard of care of Book 6, Section 162 of the Dutch Civil Code.”[40]

NZ, by contrast, adopts a dualist approach to its international obligations. For an international treaty to have force of law in NZ it must be ratified and, crucially, incorporated into domestic legislation.[41] Judges may still turn to international treaties as a tool for interpreting domestic law, but a NZ citizen could not rely on a treaty to establish a personal right, or bring an action against the government unless such a mechanism had been incorporated into a domestic statute. NZ has ratified the UNFCCC and the Kyoto Protocol, though it is not a party to the Doha Amendments.

D     Tort

Dutch law contains a doctrine of Hazardous Negligence, also called State Negligence, which requires that the government act with due care towards society.[42] Article 6:162 of the Dutch Civil Code contains the definition of a tortious act. This provision is the primary mechanism through which the doctrine operates. The article is provided here in full:[43]

Article 6:162 Definition of a ‘tortious act’

  1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof.
  2. As a tortious act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour.
  3. A tortious act can be attributed to the tortfeasor if it results from his fault or from cause for which he is accountable by virtue of law or generally accepted principles.

The Court used this provision to determine whether the government was subject to a duty of care, and what the scope of that duty might be. It conducted its analysis in a format reminiscent of the common law tests for negligence.[44] The Court held that the nature and extent of the damage ensuing from climate change was “hazardous”; that is there is a high risk of hazardous climate change occurring; and, therefore, the State had knowledge of and could foresee harm occurring. [45] They then examined the acts and omissions of the State. On that ground they concluded the State had the power to control Dutch emissions, had expressly accepted responsibility for those emissions when it became a signatory to the UNFCCC and Kyoto Protocol, and must exhibit a high standard of care in establishing an adequate and effective framework to reduce those emissions.[46] This is the Court filling the “open-norm” in Article 6:162 with reference to international obligations. The Court then discussed the scope of the duty of care. It found that it would not be too onerous to take precautionary measures as it is more cost-effective to take adequate action immediately than to postpone. This meant that State is under a duty of care to act quickly.[47] The Court recognised the statutory discretion granted by Article 21, but found it was not unlimited. It concluded that given the high risk of hazardous climate change the government had an obligation, under a “serious” duty of care, to protect its citizens by taking appropriate and effective measures in its own territory.[48] With reference to the Intergovernmental Panel on Climate Change (IPCC) the Court determined that the duty of care would be met if the government reduced GHG emissions by 25 percent below 1990 levels by 2020.[49] It would be acting unlawfully towards Urgenda if they did not do so.

This judgment is unique because it neatly dismisses common arguments employed to avoid unilateral state action on climate change.[50] It finds the excuse that emissions are caused by third parties irrelevant, pointing to the fact that the government has sovereign power to control emissions within its territory.[51] The Court held that any GHG emissions, no matter how minor, contribute to the possibility of hazardous climate change. This avoids the argument that the Netherlands emissions are inconsequential compared to global emissions, and the corollary that a direct causal link cannot be drawn between the Dutch government’s actions and global climate change.[52]

The Court used Article 21 of the Constitution and the government’s obligations in international law to fill the ‘open-norm’ in Article 6:162. Dutch Courts see themselves as the protectorate of human rights.[53] As such it used the wide discretion afforded to them in applying the Civil Code to give force through constitutional and international rights through tortious liability. The rights could not sustain an action themselves, but in the interest of producing a fair and reasonable outcome, the Court found a way to give them force.

IV  How would a NZ court respond to the facts?

NZ takes a completely different approach to State liability. Common law thinking about Crown and government liability has been dominated by Dicey’s formulation of the equality principle;[54] the universal subjection of all classes to one law.[55] Commonwealth judges have developed a complex administrative law regime to regulate the relationship between citizen and state.[56] The courts have, however, refused to recognise a duty of care established in negligence in relation to high policy being made by a Minister of the Crown.[57] The justification for this position is that it is difficult to categorise the interpretation of a statute as negligent, it might make Ministers overly cautious in exercising their powers, and a truly negligent decision could be easily quashed through the process of judicial review.[58]

A NZ court would be unable to use the approach of the Dutch Court in Urgenda to reach the same verdict. NZ does not have an equivalent of the Dutch tort of hazardous (state) negligence. If a party were to challenge the government’s climate policy in a similar fashion, they would have to rely on common law negligence. The Dutch decision would provide a useful tool in a negligence action; it illustrates judicial reasoning that avoids many of the counter-arguments that would be expressed in the government’s defence. The fact remains, however, that, in keeping with the doctrine of parliamentary supremacy, one cannot sue the government of NZ in negligence for a policy decision made with lawful authority. NZ is also missing the constitutional and international context that allowed the Dutch Court to engineer what it considered an appropriate result. NZ has no equivalent of Article 21 that indicates the existence of a duty of care in relation to a habitable environment. Nor can a NZ citizen rely on international law to establish an actionable right. The dualist system means that domestic law is a one stop shop for establishing any rights a citizen may have. The only way to challenge government policy is through the means that Parliament has prescribed: judicial review.

Judicial review forms the basis of administrative law, and the ability of the judiciary to check the power of the government.[59] On an application for judicial review the High Court can examine the process that led to a decision made by a government agency or official.[60] The High Court can overturn the decision of a government decision-maker where the decision maker: was mistaken about the facts or the law; took into account irrelevant factors or failed to consider relevant ones; made the decision for an improper purpose; or, didn’t follow the rules of natural justice.[61] These criteria focus on ensuring the decision was made by proper process and within the legal powers of the decision-maker, not the substance of the decision. Even if the Court finds a decision was improperly made, it does not substitute its own. Instead the Court can refer the decision back to the decision-maker for reconsideration.[62]

A NZ court, confronted with an application for judicial review on the facts of Urgenda would be unable to reach the same decision as the Dutch Court. Judicial review does not provide a basis for challenging the substance of a government policy, only the process by which it was made. Even if the review was successful, the decision would simply be referred back to the decision-maker for reconsideration with no guarantee that the substance would change.

V  Explaining the difference

A New Zealand court, confronted with the facts of Urgenda, would not reach the same result in the same way as the Dutch Court, nor could it reach the same result using alternate means available to it. This is surprising, because the two jurisdictions exhibit some striking similarities. The Dutch Constitution and the NZBORA have a similar level of influence; the two jurisdictions have similar international obligations under the UNFCCC, the Kyoto Protocol, and international custom; and, both judiciaries see themselves, to an extent, as protectorates of human rights and a check on state power. The complete inability of a NZ court to reach the same verdict as the Dutch Court in Urgenda can be traced back to a fundamental difference in the legal traditions of the two countries.

Both countries have a doctrine of parliamentary supremacy however, as a Civil Law jurisdiction, the Netherlands law is formulated as general principles. This gives the Dutch judiciary a wide discretion to apply the law as they see fit, demonstrated by the fact that, when novel facts arise, the courts “fill the gap” in the law by widening the scope of statute through interpretation. This allowed the Dutch Court the discretion it needed to reach its verdict in Urgenda. In contrast, NZ, as a Common Law jurisdiction, has highly specific and prescriptive laws. This reflects the doctrine of parliamentary supremacy by formulating legislation as a specific correction of common law. As such the judiciary is required to interpret statute narrowly. This means that, if confronted with the facts of Urgenda, a NZ court could only rely on the mechanisms government has prescribed for challenging State discretion, and those mechanisms are insufficient for reaching the same verdict as the Dutch Court. New Zealand Chief Justice Sian Elias has called, extra-judicially, for freedom from “such conceptual shackles as the doctrine of parliamentary supremacy”.[63] If a NZ court is ever to hold the government to account for its inadequate stance on climate change, that freedom is essential.

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