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This submission has been posted as part of a blog series that seeks to profile the newly created NNHRR Working Group on Economic, Social, and Cultural Rights blog series, its vision and plans, and to highlight the expertise of its members, showcasing their research and/or contributions to ESCR.
By: Nikki Nilwik & Rowie Stolk
Economic, Social and Cultural Rights (ESCR) can be achieved in multiple ways. Obviously, there is the political route, but not all relevant groups and interests are represented there. Groups like future generations, children and refugees (often) don't have the right to vote and typically struggle to effectively mobilise and make their voices heard. Because of this underrepresentation, vulnerable groups tend to be the ones who lose out in (e.g.) policymaking.
Consequently, NGOs have taken on the role of protecting the interests of diffuse, vulnerable or voiceless groups and interests through litigation. In the past decade, NGOs in the Netherlands have increasingly used courts to drive social change. Illustrative is the Urgenda case, which led to a Supreme Court order for the Dutch state to reduce its greenhouse gas emissions. Through strategic litigation, NGOs try to use legal action to create social, political, or legal changes beyond the immediate interests of the parties involved.
Our research shows a rise in these procedures in The Netherlands, aiming to enforce or acknowledge new ESCR. This blog shares examples of such litigation in the Dutch legal system, where the current legal standing rules for NGOs representing public interests are relatively lenient. Additionally, the blog will delve into the ongoing political debate in the Netherlands aimed at tightening these legal standing rules for NGOs. Moreover, it will shed light on a seemingly emerging trend in the Netherlands where NGOs are pursuing monetary remedies in addition to declaratory and injunctive relief.
1. What is strategic litigation?
Strategic litigation, especially in the Netherlands, often takes the form of collective actions, specifically public interest collective actions, in which NGOs start litigation to address societal and idealistic issues that concern groups within society or society as a whole. These public interest collective actions are usually aimed at achieving future change. Because of the focus on future change, NGOs pursuing public interest collective actions typically ask the court to either (1) give an order that tells an entity to do or stop a specific conduct (in legal terms known as an injunction) or (2) make a formal statement about the legal relationship between parties, without ordering any party to do or pay anything (declaratory relief). Dutch examples of public interest collective actions that aim to enhance ESCR include:
- The Sinti, Roma, and Travelers Foundation suing The Hague, claiming the municipality violated anti-discrimination laws by not expanding caravan sites and demanding action to create more, and
- Defence for Children and others suing the state and water companies, arguing that disconnecting households with minor children from drinking water due to non-payment violates children's rights.
2. Legal Standing
Simply put, legal standing is the right of a person or entity to bring a lawsuit to court. To ensure courts are not overflown with lawsuits, legal standing is subject to certain criteria. The criteria for NGOs to initiate public interest collective actions, like the ones described above, are relatively lenient in The Netherlands. As a result, we have seen a rise in these types of collective actions, which have garnered both praise and criticism. Supporters view public interest collective actions as accountability tools forcing governments to adjust unlawful conduct and policy; while critics see them as undemocratic, placing judges in legislative roles. Because of this debate, a majority in the Dutch Parliament recently requested stricter legal standing criteria for NGOs seeking to represent public interests before civil courts. One argument put forward for this decision was that the legal standing criteria now allow NGOs to initiate proceedings for which they are not adequately ‘representative’ of the (interests of the) groups on whose behalf they are bringing the action. Critics argued that it is unknown how much support these NGOs actually have within society. By adding stricter criteria for “representativeness” (for example by permitting NGOs to only act on behalf of paid members or by requiring NGOs to show that a significant portion of the group on whose behalf they are acting chose to actively participate in the collective action), these critics hope to limit number of NGOs who can bring public interest collective actions to challenge the policy and conduct of the government.
We find this development concerning, as it reflects a misguided approach to the legitimacy of these types of collective actions. One of us, Rowie Stolk, defended her PhD thesis on NGOs’ access to Dutch courts, specifically in public interest collective actions. She concludes that NGOs’ access to courts in these proceedings is a crucial prerequisite for representing politically underrepresented interests. The reason for this is that NGOs in these actions typically act on behalf of (minority) groups whose rights are often left out of political and administrative decision and policy making. A very clear example of that is the Sinti, Roma and Travelers Foundation case. These vulnerable groups often lack the resources and legal knowledge to individually challenge governmental policy or conduct through legal means. Consequently, NGOs act as their spokespersons and watchdogs. By pursuing public interest collective actions on behalf of these groups, NGOs can effectively advocate for their rights, ensuring these rights are acknowledged, respected, protected and incorporated in decision- and policy making. Additionally, these actions initiated by NGOs may also offer minority groups an alternative opportunity to unite and collaborate. If the legal standing criteria for public interest collective actions are restricted, it would become exceedingly difficult for NGOs to fulfil these roles, which would result in less legal protection for the rights of these vulnerable groups.
Public interest collective actions are, thus, in our view, a crucial expression of democratic values and the protection of equal opportunities for all groups and interests within society to defend their rights. A representativeness requirement which focuses on a quantification of popular support for the NGO or its cause is not appropriate for a democratic society under the rule of law. Access to courts should not be determined by a group's popularity within society, but rather by its entitlement to legal protection.
3. Remedies
As explained, public interest collective actions are typically associated with NGOs asking courts for injunctions or declaratory relief, because of its focus on future change instead of past damage. However, from conversations with NGOs and initial and explorative research, it seems that NGOs find that declaratory relief and court orders do not always prove effective. Especially in achieving ESCR through litigation, non-compensatory remedies such as these may prove to be inadequate, because of, for instance (1) ambiguity about what steps need to be taken to ‘achieve’ open ESCR norms, (2) difficulties in identifying who needs to take these steps, (3) inactivity or refusal by government actors to act, and/or (4) the difficulties for NGOs to enforce remedies.
We therefore witness an increase of NGOs exploring new approaches that combine public interest collective action with monetary remedies, instead of solely asking for injunctions and declaratory relief. Through this combination, NGOs seem to put more pressure on governments to actually take action. Examples of these actions are the request of the Dutch Council for Refugees for a penalty payment to improve emergency asylum reception, and Greenpeace’s request for a penalty payment to urge the State to act on its nitrogen emission, which led to a court imposing a penalty of 10 million EUR on the state if the legal nitrogen target set for 2030 is not achieved. Moreover, from our conversations with NGOs, it seems that an increasing number of NGOs and foundations are considering that claiming (mass) damages could serve as a financial incentive to encourage the government to change its policies.
These types of public interest collective actions, which one of the authors of this blog, Nikki Nilwik calls "hybrid public interest collective actions" is a new (and thus understudied) phenomenon which consequently raises important questions, such as (1) whether monetary remedies can legally and legitimately be claimed in public interest collective actions that are in principle only focused future change and not financial compensation (2) why NGOs pursue such claims, (3) who is allowed to receive the money claimed, (4) the impact of these claims, and (5) how legitimate these claims are in democratic societies.
These questions are especially relevant in the context of ESCR, which includes open norms invoking positive obligations. This raises questions about the extent of these obligations and the challenges NGOs and judges face in enforcing them. Addressing these questions through further research is crucial for enhancing the effectiveness and legitimacy of ESCR-driven strategic litigation.
Bio:
Nikki Nilwik is an external PhD candidate at the Department of Constitutional and Administrative Law at Leiden Law School, researching remedies in public interest litigation in the Netherlands. Nikki also works at the Amsterdam-based law firm Rubicon Impact & Litigation.
Rowie Stolk is an associate professor at the Department of Constitutional and Administrative Law at Leiden Law School.