I haven't written about Urgenda before. As they say themselves On 24 June 2015 the Urgenda Foundation, together with 900 citizens, won the Climate Case against the Dutch Government, forcing it to take more measures against climate change. On 9 October 2018 the judge in High Court again ruled in favour of Urgenda and the climate. The government appealed again. The final ruling of the Supreme Court will be on 20 December 2019. And Climate Liability News will tell you about the just-in victory: The HAGUE—The Netherlands’ Supreme Court upheld the landmark ruling in Urgenda v. the Netherlands, announcing its decision on Friday that governments have a human rights duty to protect their citizens from climate change. The strongly worded judgment orders the Dutch government to cut its greenhouse gas emissions by 25 percent by the end of 2020, compared with 1990 levels.As I think I've said before, I don't like this version of "human rights". I like the version of the US constitution, most notably the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This is "rights" as it should be done: by preventing govt f*ck*ng around with you. That way, you don't have to worry what the phrase "human right" even means. But when you end up deriving a "right to climate" from the state had clear obligations to protect the environment under Articles 2 and 8 of the European Convention of Human Rights involving the right to life and the right to a private and family life then things have, in my opinion, gone wrong. Read my insightful review of Ann Leckie's The Raven Tower for more.
And, of course, I think the whole targets idea is wrong.
On the overall concept, which is citizens suing their govt to do something, I think that is intrinsically weird. Holland is a democracy. They elect people to represent them. Attempting to manage govt through the courts is odd. The courts should be a check on the abuse of power by the govt; and on the govt over-stepping its authority; but I don't like them being used to prod the govt into action. In that case, your remedy is to get another govt. If you reply is "but a different govt wouldn't act either" then my reply is "that is telling you something rather important". The only counter argument to this is that it acts to prevent govt lying: if they've got in by saying they'll do X, then I have some sympathy with the courts forcing them to do X. But I don't think that applies in this case.
Refs
* Reading of the Urgenda Verdict - QS
20 comments:
But the suit was because government wasn't acting on an obligation it had agreed to. In essence, the people of the Netherlands had *already* elected a government which agreed to climate protection because that government -- the people's government -- had signed European Convention of Human Rights. There's no guarantee that another elected government would honor it, because as we see the current government didn't honor it.
"The strongly worded judgment orders the Dutch government to cut its greenhouse gas emissions by 25 percent by the end of 2020, compared with 1990 levels."
Good luck with that one year death penalty ...
https://edgar.jrc.ec.europa.eu/overview.php?v=booklet2019
1990,161.28 Mton CO2
2018,162.29 Mton CO2
2020.120.96 Mton CO2
" but I don't like them being used to prod the govt into action."
This is interesting, because what would the court do if the Govt 'over-stepped'?
And does 'over-stepping' ever mean not doing enough?
> There's no guarantee that another elected government would honor it, because as we see the current government didn't honor it.
Precisely. As I already said. So you have two conflicting things: what (apparently, all) govts wish to do (or rather not do) and the 'uman rights act (which is terribly vague). And I don't think solving the conflict through the courts is correct; refer to Alsup.
I see my point re 'uman rights acts having unintended and non-customary results has fallen on stony ground.
> over-stepping
Means the govt exceeding its power.
So what about when they have the power, but don't use it, but it's very important that they do use it.
I guess the question revolves around who has power.
So if you're attempting to get something to happen, why not use the powers at your disposal?
Or do you just sit tight and wait for a Govt that will do it.
I don't know that any really big social changes happened because people just waited for elected officials. Many of the social rights movements used protest and the courts to force Govt to take action.
Classic one here in Australia was the 'Mabo' decision. Went to the High Court, won, Govt had to take action.
> but it's very important that they do use it.
Important as decided by whom? If what you're really saying is that the govt won't do what you want, so you'll forum-shop to someone else who might force them to do what you want, then you're on the wrong path.
> why not use the powers at your disposal?
Because you end up corroding civil society. If you refuse to accept defeat on every issue until it's been through the supreme court, things clog up. Society works because people follow a lot of unwritten rules; if every thing become partisan and everyone pushes all the boundaries then it stops working.
You can argue that GW isn't "every issue" it is an unique and important one, and that is true. But for reasons I've tried to explain, I still don't think this kind of stuff is good.
> Many of the social rights movements used protest and the courts to force Govt to take action.
That doesn't fit what I know of the history in England. But there's a long-running dispute as to the extent to which govt / law mattered, versus ongoing technical progress etc.
> Mabo
I don't recognise that... but you mean Mabo v Queensland (No 2) I guess. TBH that looks like a mess to me; a rather pathetic attempt to pretend that the natives hadn't been crushed; what even does "any indigenous land rights which had not been extinguished by subsequent grants by the Crown continued to exist in Australia" mean? Obviously the natives aren't going to get any of the important bits back; but we'll let them control whether people are allowed to climb Ayer's rock or not?
A bad or unscrupulous government might conceivably misuse the overarching powers granted to them in the name of fighting climate change. Obviously, if it didn't have this mandate they could find something else, but this makes it pretty easy for them.
Lest you think I am just imagining the worst, I confess I live in the U.S.A.
"TBH that looks like a mess to me; a rather pathetic attempt to pretend that the natives hadn't been crushed; what even does "any indigenous land rights which had not been extinguished by subsequent grants by the Crown continued to exist in Australia" mean? Obviously the natives aren't going to get any of the important bits back; but we'll let them control whether people are allowed to climb Ayer's rock or not?"
Wow, where to start...
So when the British settled here they claimed terra nullius. So everything was considered 'Crown Land' - it belonged to the King and through his agents it would be granted to worthy people. And I mean this seriously, people who were favoured were granted land as free hold. Aboriginal people were either killed or 'moved on'.
Throughout Australia's history Aboriginal people had been trying to get their land back, because under the law they had no right to it... because 'terra nullius'.
No Govt was ever going to change that (despite it being obviously wrong), nor was anyone going to vote in a Govt that was going to change it.
The Mabo decision said that terra nullius was not true, and that the Aboriginal people would have legal right to the land (Native title; same rights as free hold, effectively saying that under English Law at the time of colonisation they were the owners) where they could prove continued occupation.
Following the Mabo case, the Govt could not rely on terra nullius and had to make new legislation based on the Court's findings.
This has meant many central Australian and northern Australian tribes have rights to their own land and it no longer belongs to the Queen. They've also been compensated for loss in a lot of places. And yes, they can now stop people climbing Uluru. The importance of rock outcrops in Aboriginal culture is high as they would construct 'wells' in the rock for water storage. There are plenty on Uluru that are now filled with cigarette butts and garbage...
There was no way a Govt would have done this without the Court's decision. The Court was a valuable tool to force the Govt to act on an otherwise important, but unpopular, injustice.
"Important as decided by whom? If what you're really saying is that the govt won't do what you want, so you'll forum-shop to someone else who might force them to do what you want, then you're on the wrong path."
No, this is not true.
People obviously have the right to take their claim (that they consider important) to the Courts. The Courts operate under the Law. Governments don't always follow the Law.
"That doesn't fit what I know of the history in England"
Civil Rights movement anyone?
"On November 14, 1956 the Supreme Court ruled segregated seating was unconstitutional. "
> On November 14
That's the good ol' US of A. A great place, but not Ingerland.
Segregation was govt over-reach: they had no right to do it, as the courts (shamefully slowly; but law-is-custom) eventually ruled. So that supports my case, not yours.
> under the law they had no right to it... because 'terra nullius'.
No, that's just a legal fiction. It was really right of conquest. Which is why claims under terra-nullius-wasn't-true are silly. And of course, if TN was true, the natives would get the entirely of the country back, not just a few economically unimportant bits; this is just gesture politics. And of course they aren't sovereign; apart from anything else, the case was decided by not-their court.
"No, that's just a legal fiction. It was really right of conquest. Which is why claims under terra-nullius-wasn't-true are silly."
Boy, this is some kind of statement....
I guess I'll defer to you instead of the High Court of Australia...
"And of course, if TN was true, the natives would get the entirely of the country back, not just a few economically unimportant bits; this is just gesture politics."
OH MY GOD...
Ok, this is quite a shameful and ignorant thing to say...
It also shows a true lack of understanding of where the 'economics' are important in Australia, as well as a lack of empathy.
How the hell would you know this is 'gesture' politics. This was a landmark case in Australia and has had a large impact on how we deal with land ownership.
And 'right of conquest'? What right is that? Are we free to just go and take what we want? Will you welcome your new overlords when they take your land because of 'right of conquest'?
Here's you gesture politics:
https://www.abc.net.au/news/2018-10-17/australia-biggest-native-title-claim-worth-$1.3b-registered/10386774
https://www.abc.net.au/news/2019-11-29/$290-billion-wa-native-title-claim-launched/11749206
Now let's all hear why you think this is bad...
> How the hell would you know this is 'gesture' politics
Because the natives only got unimportant bits back. And they don't get sovereignty. Just like the American Indians only get to keep unimportant bits.
> Are we free to just go and take what we want?
Only if you win. And perhaps not even that any more; see wiki:
The Right of Conquest is a historically legitimate right of ownership to land after immediate possession via force of arms. It was recognised as a principle of international law that gradually deteriorated in significance until its proscription in the aftermath of World War II...
"That's the good ol' US of A. A great place, but not Ingerland."
Yes of course, but sticking with English History alone is daft
"Because the natives only got unimportant bits back. And they don't get sovereignty. Just like the American Indians only get to keep unimportant bits."
How do you know this? You just made this up. You clearly have no understanding of where the mineral wealth is in Australia.
So what if they don't have sovereignty; they get title on their land
" This meant that there had to be military occupation followed by a peace settlement"
there was no peace settlement with Australian Aboriginals (please stop calling them 'natives')
I gotta say, for someone with zero understanding of Mabo, to claim that "claims under terra-nullius-wasn't-true are silly" Is breathtakingly arrogant.
And really lazy. Couldn't even bother looking at the determination before announcing the High Court of Australia is 'silly'
> https://www.abc.net.au/news/2018-10-17/australia-biggest-native-title-claim-worth-$1.3b-registered/10386774
$1.3bn is a gesture. $600 M over 12 year is $50 M / yr, spread over 30k people is $1.6 k / yr.
> https://www.abc.net.au/news/2019-11-29/$290-billion-wa-native-title-claim-launched/11749206
$290 B is not a gesture, but that's just a claim.
> sovereignty; they get title
Sov is when you get to decide who has title. Not-sov is when someone else decides it for you. Not-sov means that fundamentally you aren't in charge; that you aren't a nation.
"Sov is when you get to decide who has title. Not-sov is when someone else decides it for you. Not-sov means that fundamentally you aren't in charge; that you aren't a nation."
Ok, so you have completely missed the point.
They weren't asking for sovereignty, that were seeking equal rights under the law, which they had been denied. They sought that through the Courts. So it was a good thing they took the Govt to Court. It doesn't matter if you think it was silly (but this says a lot coming from someone who has never had to fight for his rights).
If you want to defend your argument that taking your Govt to court is the wrong way to go about it, by claiming that the result was a gesture, then that's a poor argument as it is nothing more than a statement of opinion. The Aboriginals won what they were fighting for. It doesn't matter what your opinion of the result was, it doesn't matter if you think the land is useless (what does that mean anyway? Have you studied Australian geography?). What counts is they won what they wanted. Hence, it is good to take Govts to court. the Govt in this case was wrong and needed to change what they were doing.
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