Pranav Ganesan, PhD Candidate at the University of Zurich
The Greenpeace Netherlands v. State of the Netherlands (Bonaire) judgment of the Hague District Court has stolen the limelight as the new posterchild for strategic climate litigation. The plaintiff in this case, Greenpeace Netherlands, argued that the Dutch government failed in its duty to protect the residents of Bonaire, an island in the Caribbean which formally attained the status of a special municipality of the Netherlands in 2010. Although it is a special municipality (bijzondere gemeente), it is just as much a part of the Netherlands as any other province in the European Netherlands. The Dutch government owes obligations under international human rights law, including those arising from the European Convention on Human Rights (ECHR), towards residents of the municipality. That international human rights law requires states to undertake climate mitigation measures and adaptation measures, as informed by international climate change law where relevant, has been affirmatively held in two advisory opinions from international courts and the European Court of Human Rights. And the proposition that the Dutch government’s duty of care towards its population essentially includes obligations under the ECHR was confirmed by the Supreme Court of the Netherlands in Urgenda. Thus, it comes as no surprise that in material respects, the Hague District Court’s reasoning was so heavily based on international law.[1] In terms of the scope of state conduct implicated in this case, it outdoes the Urgenda case,which only concerned contributions to the mitigation of climate change. The Hague District Court agreed with the plaintiff that the Dutch government had violated Article 8 ECHR as well as the prohibition of discrimination (Art. 14 ECHR and Art. 1 of Protocol No. 12 to the ECHR), the former due to inadequate mitigation measures, inadequate implementation of those measures, delays in adopting an adaptation plan for Bonaire and late provision of procedural safeguards to the residents of Bonaire. In this blog, I provide a quick analysis of the District Court’s engagement with the UN Framework Convention on Climate Change and Paris Agreement in the section on mitigation measures. Readers interested in learning about the adaptation component and how the court addressed discrimination claim are welcome to read this blogpost by Wewerinke-Singh.
There are areas in the judgment where the District Court’s assessment of the compatibility of the Dutch Climate law framework with international climate law is questionable. The first glaring issue is that the court made a finding of non-compliance with Article 4(4) of the Paris Agreement based on the absence of ‘absolute emissions reduction targets’ in the Dutch Climate Act of 2019 (para 11.13.1). The problem identified by the court was that the targets were expressed as goals that the government would ‘strive to achieve.’ However, this does not mean that the targets are not absolute. The difference between absolute and relative emissions reductions targets being whether they are expressed as percentage reductions in comparison to the emissions during a fixed baseline year, as opposed to reductions from a business as usual scenario in case of relative targets (Winkler et al 2014, 636). The use of the expression ‘strive to achieve’ means that the nature of the obligation to achieve the target is one of conduct rather than result, reflecting the nature of the obligation to pursue domestic mitigation measures in pursuance of NDCs communicated under Article 4(2) of the Paris Agreement (ICJ Advisory Opinion, paras 251-253). Another connected example is the court’s declaration that ‘UN standards’ require emission reduction targets to be expressed as percentage reductions to be achieved by the target date, in comparison to 2019 levels as opposed to the 1990 baseline (para 11.13.2). Moreover, strictly speaking, Article 12(8) of the UNFCCC does not require the EU to provide information about each member state’s national carbon budget like the court suggests (para 11.15.3). The court’s interpretation of these treaty provisions might be technically imprecise, but it is undoubtedly bold, being based on the need for exemplary efforts from a developed country like the Netherlands, and reflecting the appropriate sense of urgency in light of the results of the First Global Stocktake (para 11.9.4). Through its interpretive moves, the court effectively hardened ‘soft’ obligations (i.e. normative expectations) sourced from the Paris Agreement and COP decisions (on hard and soft obligations in the Paris Agreement, see Rajamani, 2016).
A final noteworthy aspect of the judgment is the rather detailed response to how the notion of ‘equity’ in Article 3(1) of the UNFCCC and Articles 2(1) and 4(1) of the Paris Agreement is to be applied in reviewing states’ mitigation commitments. Equity is an elusive concept, with debates on what an equitable distribution of the global emissions reduction burden entails having remained unsettled since the inception of international negotiations on the topic of climate mitigation (Oliver Herrera et al, 2025). The court provided the (un)acceptability of a ‘grandfathering approach’ as an example of one such debate (para 11.13.5). But it did not go so far as to hold that the grandfathering approach is legally impermissible because it is inequitable per se, or that an equal per capita emissions approach is the minimum standard under international law. Rather, it assessed the Netherlands’ policy negatively on account of its failure to justify why its current policy, which is based on the controversial grandfathering principle and falls short of the ambition required by the equal per capita emissions approach, is equitable in accordance with Article 3(1) of the UNFCCC and Article 4(1). It thus did not use equity to dictate the outcome of what exactly the Dutch government’s fair share of the global carbon emissions ought to be. At same time, it did not use the underlying controversy as a reason to entirely avoid reviewing the substance of the Dutch climate mitigation policy. This is underscored by its remedial findings, wherein the court declared that the Netherlands’ current mitigation commitments were inequitable, thereby leading to a breach of Article 8 (para 12.1), but dismissed Greenpeace’s request ordering the adoption of specific emissions reduction targets by the government, or at least a carbon budget reflecting the ‘equal per capita emissions approach’ (paras 8.1 (IV)-(VI), 11.55 and 11.58).
Overall, the Bonaire judgment shows how climate litigation can lead to precarious precedents. On the one hand, the way the Court engaged with the concept of equity provided an assessment of Dutch mitigation ambition which was notably pragmatic and might serve as inspiration for other courts when asked to answer the fair share question. On the other hand, the judgment risks signaling to states that legal texts—which negotiators toiled to craft in ‘constructively ambiguous’ terms—may be stretched by domestic courts to uncomfortable extents. Ultimately, the appellate court’s scrutiny of this case (should the Dutch government file an appeal) will reveal how this judgment will be remembered: whether it will be hailed for its boldness or criticized for its questionable interpretation of international treaties.
[1] André Nollkaemper commented: ‘Today’s judgment of the District Court of The Hague fully lives up to the reputation of Dutch courts as strongly international law-minded. […] The conclusion is firmly anchored in international law. With 29 references to the ICJ Advisory Opinion on Climate Change, 64 references to the European Court’s KlimaSeniorinnen judgment, 64 to the UNFCCC, 62 to the Paris Agreement, and 12 to COP decisions, this surely ranks high on the list of climate change cases that are most shaped by international law.’
