The acid test of integrity in a legal system is whether you can sue the government—and win. The government, after all, pays the judges, and the issue is whether it pays them to interpret the law or to ratify whatever decisions come from the political branches. Or whether the judges even recognize that those can be two different things.
We seldom think of judicial integrity that way in the U.S., because people sue the U.S. in U.S. courts and win, and people sue the states in state courts and win. This happens often enough to be unremarkable. The same is true of some tribal court systems, but by no means all.
The Dutch courts have just been handed a lawsuit that will test litigation in the Netherlands with this question in a manner that has implications for the entire world. The allegation in the lawsuit brought by the Urgenda Foundation and 990 individual Dutch citizens is that the Dutch government has failed to respond to the emergency of anthropogenic climate change and that failure violates the fundamental human rights of not just Dutch citizens, but of the entire world as well.
Plaintiffs in a lawsuit normally have to show that they have an interest at stake distinguishable from that of the entire world. If this were not the rule, every individual would be a walking bundle of litigation, and judges would be the kings that some people claim they already are. Climate change, while it affects the whole world, is especially troubling for the Netherlands. The very name of the nation translates to English “low countries.”
Sea level has already begun to rise in the North Sea. The speed of the continuing rise will depend on how long Greenland and Antarctica can retain their ice caps. (Loss of Arctic ice is not an issue because it does not rest on land.) The rise is expected to be as much as 20 feet.
Hurricane Katrina was deadly to New Orleans, which is all below sea level. The Netherlands has a higher population density than New Orleans over a larger area. Over a fourth of the Netherlands is under the current sea level, and more than half the country is subject to flooding from either the North Sea or the major rivers. For these reasons, Dutch citizens have a bit more at stake.
The Dutch lawsuit is based on the Oslo Principles on Global Climate Change Obligations, a document drafted by an international panel of legal experts from across all the major legal systems. The Oslo principles contend that judges have the power and the duty to entertain litigation of climate change issues even if the international negotiations to that end remain deadlocked. The panel claims that the remedies proposed are based on long-established principles of human rights law, environmental law and tort law that apply across all modern legal systems.
Two Dutch legal experts were part of the Oslo panel, Toon Huydecoper and Jaap Spier. Other experts participated from the U.S., Australia, India, China, Germany and the United Kingdom. The countries represented in Oslo have the power among them to meaningfully curb CO2 emissions worldwide.
What is lacking is not necessity or technology but political will. A reason for political deadlock is the fear that any country or countries that get out in front of the climate change problem will put themselves at a competitive disadvantage in relation to countries that continue their polluting ways. This is the kind of issue in which courts have historically imposed regard for the public interest onto reluctant executives and legislative bodies.
As the Dutch lawsuit tests the Oslo principles, the rest of the world ought to pay attention both because the rights of every human on the planet are involved and because the remedial authority of Dutch courts—if any—obligates courts in other nations as well.
One common defense that nations raise when accused by other nations of CO2 pollution is tu quoque, lawyer Latin for “you do it, too!” This is not an argument that a government can deploy against its own citizens. Virtually all nations in the world—and certainly the ones responsible for most greenhouse gasses—have signed the human rights treaties that form the basis for the Oslo principles and the Dutch litigation.
It’s probably not a coincidence that the other “low country,” Belgium, is right behind the Netherlands in trying to force action against CO2 pollution with a lawsuit.
Much of the climate change litigation in the U.S. has been on behalf of polluting industries and climate change deniers trying to attack the few feeble steps the government has taken. An example of U.S. litigation is Michigan v. Environmental Protection Agency, argued in late March and pending decision. The Economist refers to the case as “Coal States v. Uncle Sam.”
In the U.S., signed and ratified human rights treaties have been commonly found to be “non self-executing.” This means nobody but another nation can sue to enforce a right created or recognized in the treaty because what the U.S. has promised by signing is that Congress will pass laws to require compliance. Pending the passage of laws that “execute” a treaty, the courts abstain.
American Indians don’t know whether to cry or laugh at the difficulties in making the U.S. live up to its treaty obligations, but neither makes the difficulties go away. It’s sad or funny or both that U.S. courts have been more receptive to the rights of non-human animals, which have laws like the Endangered Species Act rather than just treaties. H. sapiens has not yet been recognized in law as both the apex predator and an endangered species.
What will happen within other national court systems remains to be seen, but it is no surprise that the Netherlands and Belgium, facing the most danger in the shortest time, are out in front. Other climate change litigation is going on in the European Court of Justice and the national court systems of (in alphabetical order) Australia, Canada, Czech Republic, France, Germany, New Zealand, Nigeria, Ukraine, and the United Kingdom. All of these courts will face the acid test of judicial integrity: can the judges rule against the government that pays their salaries? With the political branches hopelessly deadlocked, judicial integrity may make court action the last, best hope of avoiding catastrophe.