Judicial Enlightenment

Supporters of a climate case in the Netherlands celebrated the Dutch Supreme Court’s ruling Friday. (Photo: Urgenda/Twitter)

Over the past decade plus there have been a number of law suits seeking  a court order compelling a Government to take action to reduce carbon emissions: the primary cause of global warming.  In many of these actions the claimants were activists determined to stop climate change, whatever they might have to sacrifice in the process .

More recently a new class of claimants has emerged: young people, most of whom are students. They demand that their standing in court  be recognized as valid. The basis for their claim is  their age: they will have to live in the dire circumstances of global warming if nations do not take action now. They point out that extraordinary efforts required in the future to reduce Climate Change would not be necessary if governments had taken timely measures to limit atmospheric carbon as  recommended by the United Nations Conferences on Climate Change.

In very few of the earliest of  actions have the claimants successfully persuaded a court to oversee laws ordering reduction of carbon dioxide emissions.  Perhaps the main reason for this lack of success was the difficulty in determining to what extent a national court could “police”  its government’s actives. And given that global warming is a world wide reality, is the only permanent solution one that has to be hammered out by all nations?  To date, the path way forward as charted by the United Nation is well short of achieving its goals.

Many of the largest emitters of carbon emissions have shown a lack of commitment, significantly because citizens  have failed to force their government to reduce continued carbon emissions through legislative decree.

Judges in national courts are not inclined to decide what and how – at the practical level – remediation steps  should be pursued.  Judges hesitate to issue complicated enforcement orders. They recognize that for many years to come such orders may require continued judicial intervention if there is to be some progress.

There is still hope that judicial attitudes will change.  The highest Dutch Court has recently delivered a decision ordering the Dutch Government to take positive steps to reduce carbon emissions by a set amount before the end of next year.  This decision confirmed  decisions by lower courts.

Admittedly Holland is different from other countries in two respects, which may have influenced the thinking of the Judges:

Firstly Holland does not have a large fossil fuel industry:  Royal  Dutch Shell is one of the largest fossil fuel companies in the world, but it generates only a very small percentage of carbon  in Holland.

Secondly, Holland is a low lying country and – as predicted by many experts-  is at peril from the sea level rise.

The principles that inspired the Dutch Courts are based on moral necessity.  First, all Courts recognized that enforcement measures can be ordered by national courts if governments fail to implement steps to  which they have committed.  Secondly, the objectives imposed upon national Governments must  be consistent with the objectives agreed on by all countries in the world.

There are other factors.  Holland is the location of the World Court, and the final Appeal court would be reluctant to ignore the  direct obligations under articles 2 and 8 of the European convention on human rights, which cover the right to life including family life.

David Boyd, the UN special rapporteur on human rights and the environment, commented on the decisions in these words”it was “the most important climate change court decision in the world so far, confirming that human rights are jeopardised by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions.”

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