The Dutch Prescription: take the future to court, or take it outside

CHRIS WOOD: NATURAL SECURITY 
April, 2015 

‘Human Rights’ are, in general, bunk. But a Dutch group is at least putting the idea of them to good use. They are taking their government to court for idling while the Earth burns.

Specifically, these low country plaintiffs are asking a Dutch court to oblige their government to act to accomplish a reduction in the Netherlands’ greenhouse gas emissions consistent with keeping global average warming above pre-industrial levels within 2o Celsius. That’s about twice what we’ve experienced so far, and the rough best guess as to how much heat our planet can handle without spelling disaster for humanity. 

The Netherlands pressed the European Union, of which it is a member, to set a union-wide target last October of cutting greenhouse gasses by 40 percent below their 1990 levels by 2030. That may sound ambitious, but the Dutch government admits itself that it “would not necessarily be sufficient for achieving the target of limiting global temperature increase to 2 °C.”

Nearly 900 people in the Netherlands have taken their government to court. Their case claims exposing their government as complicit in this widening destruction and human injury. Further: they are pointing out that the same climate disruption exposes them to injury, to violations of their personal integrity, to loss of property and a future for their families.  , to force it to prevent those violations  in practical terms, to step up the Netherlands’ carbon-reduction efforts and pressure the EU to follow suit. Above, a canal in Amsterdam, one of the cities most at risk from rising sea levels. © Deborah Jones 2015

Nearly 900 people in the Netherlands have taken their government to court, claiming it’s complicit in climate disruption that exposes them to injury, to violations of their personal integrity, to loss of property and a future for their families, and force it to step up carbon-reduction efforts. Above, a canal in Amsterdam, one of the cities most at risk globally from rising sea levels. © Deborah Jones 2015

Meanwhile, we are beginning to see what an unstable climate feels like with only half that much extra heat. In eastern Canada, it felt paradoxically for months like a new ice age. In California, it feels like the American dream shriveling in the heat. In Australia, it’s summers so scorching that gum-trees burst into flame like oversized lawn torches. 

In northeastern Africa it’s felt as hunger and desperation when the rains don’t come and the harvest fails. Then it’s heard as gunfire and pain and violation, when the desperate vent their hurt and fury against the ‘others’ in their region.

The Dutch plaintiffs are exposing their government as complicit in this widening destruction and human injury. Further: they are pointing out that the same climate disruption exposes them to injury, to violations of their personal integrity, to loss of property and a future for their families.

These hazards, they say, violate rights the Dutch state has vowed to protect for its citizens. And so nearly 900 people are demanding that a court force the government to do whatever it can to prevent those violations: in practical terms, to step up the Netherlands’ carbon-reduction efforts and pressure the EU to follow suit.

To understand why their case matters, we need to recall two things about the political and legal norms that have made the so-called ‘free’ ‘democratic’ and ‘developed’ countries of the world at least approximate those aspirations.

One has been a profound shift in the idea of what a state is for. Not long ago (and still in many places) state governments were regarded simply as the prize that went to the man (usually) with the biggest sword, metaphorically or literally. What a state’s residents wanted was no more material than the wishes of a golf trophy before it’s put on the mantle.

This idea changed over the 19th century. America and France were the first to suggest, at the end of the 18th, that the authority of the state derives from ‘we the people,’ not the guy swinging the biggest axe. The formula now appears in scores of constitutional documents around the globe (if somewhat less often in practice).

In this the Netherlands, along with Britain, Canada, Australia and a few other places, are anachronisms. As monarchies, they retain the legal premise that all power derives from the Crown: an autonomous font of authority once viewed as divinely ordained, but which still trumps any rights a mere subject of the Crown may claim. As a result, the law in such countries is long on the powers of the Crown — effectively, of political ministers — and very short indeed on obligations to citizens. 

Even in those backward places, though, history has spoken. Propertied white men slowly relaxed their monopoly of the vote. Canada in 1980 adopted a constitutional Charter of individual rights and freedoms.

The movement is far from steady. Canada’s current government is trying to undo as many of its citizens’ Charter freedoms as it can. Britain has loudly declared that its citizens shan’t enjoy the protection of Europe’s Charter of Fundamental Freedoms.

Nonetheless, with some notable exceptions, it is getting harder for autocrats anywhere to make the argument stick that they get their power from God and the rest of us should just tug our forelocks and do what we’re told. Even in countries whose legal forms are rooted in feudalism, the idea is increasingly accepted that the whole purpose of a state — or if you prefer, the Crown — is to serve the public. In short, if the state isn’t for us, then what is it for? 

That’s one thing. The other is the reason we have courts, which is to prevent bloodshed. It’s no accident that violence is most endemic where there are no trusted and impartial arrangements for resolving disputes. When courts do settle disagreements peacefully according to laws or customs accepted by both litigants, the only solution left is to ‘take it outside’. 

Which is why the case being pressed by the Dutch plaintiffs should matter to all of us who live in (or so we claim) other ‘free and democratic’ developed countries. 

‘Human’ rights are indeed bunk; the idea that Homo sapiens enjoy any unique dispensations denied other creatures is unsupported by the evidence. On the other hand, the very measure of advanced states is that they acknowledge and defend their citizens’ civil rights as perhaps their highest purpose. By contrast, in the absence of conditions that support life and human societies, no rights of any kind are possible.

Thus, if the state is to mean anything at all, it must mean this: that it exists to protect the conditions of life of the society it claims to embody. Which is, in fact, the essence of the Dutch case: that the Dutch government is “knowingly exposing its own citizens to dangerous situations, in which they and their children will suffer serious hardship” in violation of several ‘fundamental freedoms.’

In fact, the roots of this responsibility go much deeper. Ancient Rome recognized what is now called the ‘public trust’: the idea that some things — mainly rivers and sea coasts in Caesar’s day — were assets that belonged to all the people, and which the state had a duty to preserve for future generations. The idea appears in many modern constitutions and the laws of a score of U.S. states. Courts have recognized its unwritten force in India, Australia and even Canada.

So it comes to this: what is a state for, if not to protect its people’s natural security? And if citizens cannot take before the courts those agents of the state whose actions or inaction will foreseeably injure them and damage their property, then what are courts for?

And if states are not for protecting their publics, and if courts are not for settling disputes without bloodshed, then must citizens fighting for their lives, their property and their children be forced to take it outside?

Copyright Chris Wood 2015

Contact: cwood@factsandopinions.com

References and further reading: 

See more about the Dutch legal case here: http://www.urgenda.nl/en/climate-case/

Or read more about the gap between climate commitments and what is needed to restabilize the climate here: http://www.unep.org/publications/ebooks/emissionsgapreport2014/portals/50268/pdf/EGR2014_EXECUTIVE_SUMMARY.pdf

Oslo Principles on Global Climate Change Obligations, March, 2015: http://www.yale.edu/macmillan/globaljustice/news.html#oslo2015

Dutch government facing legal action over failure to reduce carbon emissions. By Emma Howard, the Guardian: http://www.theguardian.com/environment/2015/apr/14/dutch-government-facing-legal-action-over-failure-to-reduce-carbon-emissions

The web site of the Urgenda Climate Case Against the Dutch Government: http://www.urgenda.nl/en/climate-case/

The origin of the Dutch climate case was Roger Cox’s book Revolution Justified. The video below is from a lecture by Cox at the University of Oslo, Norway.

 

chris1

Chris Wood is a founding writer with Facts and Opinions. He is the author of the Natural Security column and occasional long-form Think magazine pieces, and contributes the odd blog entry.

Wood writes about the issues of human social survival in the 21st century. His 40-year career has spanned award-winning work in radio, newsmagazines, books and the internet. He is the author or co-author of seven books, most recently Down the Drain: How We Are Failing To Protect Our Water Resources, with Ralph Pentland (Greystone, 2013).  After growing up near Hamilton, Ont., and later living for periods of time in rural Ontario, the Maritimes, Toronto, Dallas and Vancouver, his home is now on Vancouver Island with  his writer/marketer wife, Beverley Wood, and their two middle-aged bull terrier dogs. Currently, all are on an extended research and study term in San Miguel de Allende, Mexico. 

Read more about Chris’s work, or book him as a speaker, at www.bychriswood.com 

 

 ~~~

Facts and Opinions is an online journal of select and first-rate reporting and analysis, in words and images: a boutique for select journalism, without borders. Independent, non-partisan and employee-owned, F&O performs journalism for citizens, funded entirely by readers. We do not carry advertising or solicit donations from foundations or causes. Help sustain us with a donation, by clicking below; by telling others about us, or purchasing a $1 day pass or subscription, from $2.95/month to $19.95/year. To receive F&O’s free blog emails fill in the form on the FRONTLINES page.