Leiden, a.d. XII Kal. Sep. MMDCCLXVIII A.U.C.,
This year a Dutch court reached the international headlines (Example) when it ruled that the Dutch government had to take measures to ensure the Dutch population would reduce its CO2 emissions with 25% compared to 1990 by 2020 (Court Ruling in English).¹ For comparison, current Dutch policy would only reduce emissions with 17%. Although this tiny change in world wide emissions will probably only give us some moral high ground, rather than actual high ground once the polar caps have melted, it is a good thing that the Netherlands will finally follow Denmark’s and Germany’s lead. However, this post is not about the environmental impact of the demanded change in policy, it is about how courts function in democracies. This court’s ruling can give us a really interesting insight into how courts manage to influence policy, even though they lack the actual force to make governments follow their decisions.
What is particularly striking about this ruling, is that a Dutch court took an active stance on public policy. This hardly ever happens in the Netherlands, it is truly a historic decision (Sadly Dutch source). Compared to other countries, the Netherlands has relatively weak courts, for example, courts cannot test new laws against the constitution, indeed, there is no constitutional court (Source). Moreover, there were no Dutch laws the government was breaking, something Dutch courts can act against. This particular court ruling is, thus, based on a bit of a ‘loophole,’ the court tested Dutch laws against legally binding international treaties, like the Kyoto Protocol, even though there is not really any enforcement mechanism to the Kyoto Protocol (Canada even quit as soon as they found oil). The main argument of the ruling, though, was an ethical explanation of why the Dutch government had to reduce CO2 emissions. The negative effects of climate change are too large, according to the court, and the Dutch government has a ‘care taking task’ to fulfill (Source). The court found immediate costs to Dutch companies due to a loss of competitiveness less important than trying to prevent a mass extinction. While as such this ethical explanation is very laudable, it is somewhat controversial that this court intervened in a public debate by demanding a change in policy, citing scientific evidence as a justification.
Before the government came with an official response, the two governing parties reacted to the CO2 ruling, a reaction that gives a really interesting insight into how courts function in democracies. Because courts do not have a police force to command, and no direct democratic mandate, they rely on public opinion to intervene successfully in public debates. Courts can function like a rally point for citizens that want to get something done from their government. (Article on the interaction between public support for courts and their political impact). The fact that the two political parties in government did not manage to agree initially, shows exactly this. The Labour Party (PvdA) already supported a 25% CO2 emission cut, while the VVD (conservatives) supported the official government line of 17%. However, now that the VVD has a court ruling to hide behind, which is definitely face saving vis-à-vis their supporters, they agreed to comply with the court and to change emission policy. While the government was legally obliged to change its policy, and for a legal scholar the government’s reaction thus makes sense, for a political scientist it could be a sign that this court successfully gained wide spread public support for its ruling. It teamed up with the smaller governing party against the biggest governing party, and actually had an impact it would never have had, if the Labour Party had not used this opportunity to exact a change in policy from the VVD, while aiming to gain popularity by doing so. Meanwhile, the Labour Party would not have managed to change emission policies on its own, it was tied to the 17% reduction it had initially agreed on, and that probably was the most it had been able to squeeze out of the conservative party.
Now, the Dutch government will appeal. However, not so much on the content of the case, but to gain clarity on the power of courts to enforce international treaties and to appeal to the fact itself that a court made policy demands (Decision to appeal). In other words, the court managed to split the government on this issue, thus creating a situation in which the government had to internally renegotiate its earlier agreements, leading to a change in policy. However, as soon as the Labour party successfully cooperated with the court to change public policy, both parties in government agreed that in general it was not in their interest to have more powerful courts that limit parliament’s and the government’s power, and indirectly thus the power of political parties.
Bottom Line: Courts do not have their own enforcement mechanisms, they are wholly dependent on the compliance of the executive and legislative powers to get anything done. However, by interacting with public opinion wisely, they can be a rally point for citizens, something to which politicians have to react.
- Congratulations Netherlands on being absolutely awesome once more!