In the climate debate, the courts can act as trustee for future generations

Climate policy extends beyond national borders and beyond the interests of the current generation. According to Laura Henderson, Assistant Professor of International Law at Utrecht University, courts have a role to play in ensuring the inclusiveness of this system – despite the fact that some politicians claim such judicial interference is undemocratic.

This blog was published on 30 June 2020 on the climate blog of the NRC .

Are courts becoming too powerful? The Dutch House of Representatives deliberated on this question recently in the wake of several judicial decisions with political implications. Last December, for example, the Supreme Court of the Netherlands ruled in the Urgenda case that the state has an obligation to reduce CO2 emissions. Last July, the Council of State reprimanded the government with regard to gas extraction in Groningen and two months earlier, that same body concluded that the Dutch policy on nitrogen reduction was in breach of European law.

AJudicial interference with government or parliament action is anti-democratic, some politicians argue. Those who defend judicial review, on the other hand, assert that such rulings are in fact necessary in order to defend the rule of law. However, the judiciary also directly ensures the quality of democracy.

At its core, democracy is the idea that people have a right to govern themselves as they see fit. This means two things. First, people have the right to organise their communal lives in accordance with their own values and standards. Dutch political parties such as PVV and FvD emphasize this point when they complain that international treaties and courts stand in the way of democratic decision-making.

But self-governance also means something else, namely the right to exert influence over the decisions that affect you. In order to know who is entitled to participate in decision-making we must identify those who will be affected by the decision in question. When collective decisions affects individuals other than those who are able to exert influence over those decisions, there is a democratic deficit.

Neither the causes nor the effects of the climate crisis are limited by national borders or generational boundaries

Citizens

For a long time, the geographical borders of a given country more or less determined who was affected by the political decisions in that country. Citizenship was, then, the best way to approximate who had a long-term relationship with the territory of the state. These are the principles on which our current democratic institutions were built. As a result, Dutch parliament represents only the voices of the Dutch citizens of today.

The climate crisis has revealed the democratic shortcomings of this approach. Neither the causes nor the effects of the climate crisis are limited by national borders generational boundaries. Individuals affected by decisions taken in the Netherlands – such as future generations and inhabitants of vulnerable coastal regions all around the globe – are however not the individuals who are able to participate in the Dutch decision-making process.

The courts are particularly well-positioned to alleviate this misalignment between institutional reality and democratic values. Because the courts are independent of electoral success, they can give parties other than current voters a voice in the courtroom. When that happens, voices that were unfairly excluded from the legislative process in the past are given a chance to be heard. In this way, the courts can contribute to the democratic ideal that everyone who stands to be affected by a decision should be able to exert influence on that decision.

Duty of care

Until people other than current citizens can exert an influence over decision-making, the courts will remain vital in order to compensate for this democratic deficit

Courts have been assuming this role since the 1990s. In a case involving the effects of nuclear testing, Judge Christopher Weeramantry of the International Court of Justice described the role of the Court as that of a trustee of the rights of future generations ‘in the same way that a national court acts as a trustee for the rights of an infant unable to speak to itself’. In a case involving the logging of large portions of the Philippine rainforest, the highest court in the Philippines ruled that the interests of future generations could have their day in court as well. In its ruling in the Urgenda case, the District Court of The Hague asserted that the state’s duty of care also extends to future generations of Dutch citizens.

A more far-reaching step would be to adjust the legislative process itself to allow people other than current citizens to exert influence. Bastiaan Rijpkema, for example, suggests replacing the Dutch Senate with a ‘future chamber’ intended to provide the interests of future generations with a voice in the political discourse. However, that day has not yet arrived. Until it does, the courts will remain vital in order to compensate for this democratic deficit.

Scientists from Utrecht University are reporting in the climate blog of the NRC on their research in the field of sustainability. They are united around the strategic theme of 'Pathways to Sustainability.

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