Will the lawsuit Milieudefensie v. Shell indeed answer the question “whether it is up to judges to impose a reduction in its emissions on a large oil and gas company like Shell”? The newspaper recently summarized this important lawsuit this way. And I've been thinking about it ever since. Is that also true? Is this where the line is definitively drawn between judge and legislator in climate cases? The case closed on appeal last week. The court will not issue a verdict until November. But will the line between judge and politics be drawn forever? Meh.
It is certainly not the only case in which this occurs – earlier this month the Human Rights Court in Strasbourg instructed ECHR signatory Switzerland to come up with an 'effective climate policy' within 30 years. Great consternation. But if you look closely, the judge and legislator have been doing a variation on the Echternach procession in difficult issues for decades: two steps forward, one step back. The judge sometimes judges and corrects, the politicians get startled, make a fuss and then hastily adjust the law or the treaty, according to their own insight. Or not, of course: sometimes politicians adapt the law to what the judge thinks. Then it is considered dignified that the judge 'forms law' which the legislator then 'codifies'. Relieved that she has been freed from a dangerous discussion. This is how we came up with euthanasia rules and the right to strike for civil servants, for example.
You can also see it as the tango of 'progressive insight'. Or as a leapfrog – first one, then the other. The trias politica as a self-correcting system of judge and politics. Democratically, that is completely okay. Usually with human rights or general principles as a legal basis, the guarantee provisions of democracy. And with citizens and interest groups as a driving force. In the Shell case this is, among other things, the 'precautionary principle'. The duty to prevent worse, i.e. to counteract dangerous environmental change in a timely manner. It's nice that in a democratic constitutional state, citizens can put the judge to work immediately, right? The system has worked this way for decades.
Judges are not very fond of these types of cases because they sense exactly what they are used for. As a changer in dangerous issues, as a megaphone in the public debate – in modern Dutch, to change the 'narrative'. And they don't always fall for it. The roadside is full of idealistic summons that the judge did nothing with. The first one I ever experienced was about a demand to ban American cruise missiles with nuclear payloads from the Netherlands because 'genocide' could be expected from them. Sounds familiar, doesn't it. That's not up to us, the judge said.
But on the other hand, something often comes out of it. A ban on the supply of F-35 parts to Israel that has committed human rights violations. A non-discriminatory instruction to select airport passengers for screening. A ban on turning off the water for families with children. Parties who have been targeted often make an effort to belittle the judge as much as possible. “Not equipped for this,” grumbled the Shell boss, those judges. And also “ineffective”, because Shell also has to survive in a global market. This is unfair, because 'others' can simply continue to do their thing there. We're back in the schoolyard – washing your hands in the other person's dirt. If they do it, then we can too, right? How do we get such a court in The Hague back in its place, was the Shell tenor.
The joke is that such an argument is counterproductive. Justice is there to protect the weak, to do justice. Precisely because judges do not have to be administrators, they can decide what is fair and what is not. In fact, as a Shell boss or national lawyer, you stand in your bare ass in front of the fence, without the suit of power. What are you really doing about climate, peace, human scale, good governance, etc. And then you get a slap on the wrist if the answer is not satisfactory. Even if you are Shell or the minister.
So that boundary between law and politics will continue to be a source of contention for years to come, even after Milieudefensie v. Shell. There is a good chance that judges will continue to have the courage to continue to apply simple standards to even very difficult cases with crazy high stakes. And then make judgments about what we should 'do with'.
What a relief that it works this way.
Folkert Jensma is a legal editor and writes every other week on Mondays.
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