Opinion: Once upon a time, it was the role of parliaments to make laws, governments to execute them, and the role of courts to uphold them. Civil law jurisdictions, such as those in Europe, do not share the Anglosphere’s tradition of judge-made law (‘common law’). In these jurisdictions the role of courts has been circumscribed even more clearly.
But the democratic climate is changing. The change is driven by the problem of our time: climate change.
You may have missed the ruling of the European Court of Human Rights last week, but it is symptomatic of the blurring lines between lawmakers and law enforcers. In a landmark case, the court ruled that Switzerland’s climate policy is inadequate and thus violates the human rights of its citizens.
The case was brought forward by a group of senior women, the “KlimaSeniorinnen” (female climate seniors). They contended that the country’s purportedly insufficient action on climate change infringes on their right to life and health.
The court sided with them, declaring Switzerland’s measures to reduce greenhouse gas emissions are not enough to meet the Paris Agreement’s target of keeping global warming to 1.5C above pre-industrial levels.
But the court did not stop at admonishing Switzerland. It went a step further, in effect prescribing how the country should conduct its climate policy. The judges laid out a set of principles that Switzerland – and by extension all 46 member states of the Council of Europe – must now adhere to.
According to the ruling, states must set binding targets to reach carbon neutrality by 2050. They must also define clear pathways to meet these goals, and act swiftly and consistently to implement the necessary laws and regulations.
In essence, the court has thus established a high standard for what it considers adequate climate action under human rights law. That standard applies not just to Switzerland but every country under the court’s jurisdiction.
At first glance, this may seem like a positive development. Yes, there is a climate problem, and if courts can compel governments to take more ambitious action, might that not be a good thing?
However, there is a fundamental point at stake here. It goes to the heart of how democracies function.
In a democratic system, it is the elected representatives of the people who are tasked with making policy decisions. Politicians are accountable to their constituents, who can vote them out of office if they are unsatisfied with their policies. This accountability is the cornerstone of democratic governance.
Judges, on the other hand, are not elected. Their role is to interpret and apply the law, not to create it. When courts start dictating policy, they are overstepping their bounds and encroaching on the domain of the legislative and executive branches.
The consequences of judicial overreach are even more pronounced when it comes to supranational courts such as the European Court of Human Rights. The judges on this court are not even directly accountable to the governments of the countries they pass judgment on, let alone their voters. They are appointed through a process that is far removed from the democratic politics of individual nations.
Yet with this ruling, the court is in effect legislating climate policy for 46 countries. It is telling democratically elected governments what to do. They are setting specific targets and timelines that they must meet. This is a significant incursion into the policy-making prerogative of national governments.
It sets a troubling precedent, suggesting that an unelected, unaccountable international body can override the will of national parliaments and voters. It is a circumvention of the democratic process, and one that could have major unintended consequences down the line.
Proponents of the ruling may argue that the severity of the climate crisis justifies this kind of judicial intervention. They may say governments have been dragging their feet, and that the slow pace of political change necessitates a more forceful approach.
And yes, bold and urgent action may be needed to avert severe consequences. But does that mean we should be willing to compromise democratic principles? Is it a good idea to concentrate more power in the hands of unelected judges, even if they are acting with the best of intentions?
These are not easy questions to answer, but they merit serious consideration. Democracy is not perfect. Even so it remains the best approach to making collective decisions in a way that is fair, legitimate, and accountable. If societies chip away at democratic norms in the name of expediency, even for a cause as important as climate action, the foundations of our political system are imperilled.
Solving the climate crisis should not require judges and courts. If citizens are sufficiently concerned about the climate, they need to elect leaders who are committed to bold action – and hold them accountable if they fail to deliver. That requires robust public debates, not court proceedings.
Of course, this is not an easy task. Democracy often is not as straightforward as issuing a court ruling. Democratic decision-making can be messy, slow, and frustrating. But it is also the best way to establish legitimacy and ensure the durability of political decisions.
Once societies start to bypass democratic processes in the name of climate action, they set a worrying precedent. Today it might be climate policy that is at issue – but what will it be tomorrow? What other pressing challenges will be deemed too important to leave to the vagaries of democratic decision-making?
Human rights implications can be construed in any area of public policy, but that should not make these areas the playgrounds of high courts. Just imagine what legal rights could be construed in health policy from the right to life. Or what human rights might be taken to mean for the setting of benefit levels.
The Swiss climate case, for all its good intentions, raises profound questions about the role of the judiciary in shaping policy. It is a reminder that in the fight against climate change, we cannot lose sight of the democratic principles that underpin our societies.
Effective climate action and robust democracy need not be mutually exclusive. In fact, they should go hand in hand. The challenge is to find ways to accelerate progress on emissions reductions while also strengthening democratic institutions and processes.
Courts have an important role to play in interpreting and applying the law. But they cannot be a substitute for the hard work of democratic politics.
The European Court of Human Rights’ ruling in the Swiss climate case is a wake-up call, not primarily about the urgency of the climate crisis, but about the fragility of democratic institutions.
The path to a sustainable future must run through the public square, not the courtroom.
Yes, Oliver, as per always you raise important issues. I think that your request for more detailed debate on the respective roles of governance and the executive is particularly relevant in light of Anne Salmond’s wonderful article on democracy published by Newsroom last week.
May I compliment Newsroom for giving us a platform to debate these issues.
I do note, however, that both you and Anne constantly refer to democracy as being the best of a flawed system. ‘ By the people for the people ‘ is clearly not working very well, neither within Western economies who promote it nor within democracies elsewhere throughout the world. Why do we assume that it is the best political system for a future where economic growth is no longer viable for the wellbeing of the planet ? We only have to think about what has happened in the past to societies which have crumbled. The future viability of democracy should now be firmly under the spotlight.
Yes, the democratic process is important. That’s why it’s disastrous that corporate interests driven by the short-term profit motive (a) own most of the mainstream media across the free world (Murdoch, anyone?) and (b) exert disproportionate influence on politicians via professional lobbyists and the old-boy network.
Setting those points aside for a nanosecond, where to from here? Every analysis I’ve seen predicts that climate disruption will wreck the global economy over the next 2-4 decades by causing repeated infrastructure damage, making farming unprofitable, propelling mass migration, and seriously exacerbating conflict. I can provide links to those analyses for anyone who cares.
Politicians know they can’t get too far ahead of public opinion, or they’ll get booted out of office. Hence the massive disconnect between what we need to do about the climate crisis and what democratic governments are willing to do.
We should on the equivalent of a wartime footing to deal with this; but we’re not, are we? The missing link appears to be voter education. If citizens genuinely grasped the unprecedented nature of climate disruption and related planetary boundaries – if they understood how this will wreck our lives – they would grit their teeth and vote for politicians prepared to implement the draconian policies we need if we want a liveable future climate.
In New Zealand, currently, that would mean te Pati Maori and/or the Greens.
Given his sincere concern about the climate crisis, I presume Mr. Hartwich is a keen supporter/funder of one or both of those parties?
The argument that courts with unelected judges dictate what we do is a bit of a red herring.
These courts have powers because we, the people, through our parliaments, have passed laws allowing courts to ensure that the legislation and the treaties our countries have adhered to are interpreted and applied right. One of the tenets of the rule of law.
If a government has a mandate from the people to change those laws or to withdraw from those treaties, they still can. And, sometimes, they do – change laws, withdraw from treaties.
Judges doing their jobs is not an attack on democracy. It is what keeps the rule of law alive. For anyone who thinks that is a small thing, try living in a country where courts do not function properly – where if you bribe a judge you get a decision favourable to you; where if your rights are violated you cannot trust the justice system to apply the laws that are on the books.
Something to bear in mind when raising this particular argument.
Tautoko kia koe, Ana, you got to the logical heart of Oliver’s argument and proved it wrong.
“Judges doing their jobs is not an attack on democracy. It is what keeps the rule of law alive.”
That bears repeating. 🙂
Very much agree with the commenters above. Independent judiciary is an equally important part of a functioning democracy as are elected members, and by adjudicating on the ways in which governments apply laws and treatises they had passed *themselves* they are simply doing their job.
This article seems to reduce democracy to just elected representative bodies, which is really not the case. As others have pointed out, when elected governments are moving too slowly (and even going backwards) on the matters of existential importance, we really need multiple layers of democracy, and need them as strong as possible. Quite the opposite from the conclusion of this piece.
‘The missing link appears to be voter education.’
Graham, I agree that you make an important contribution to the conversation. But you consistently try to claim that the main missing ingredient is education. By now you should realize that we are The Post Truth Era where denial has become mainstream. They do know what is required and they are terrified by that knowledge. The breadth and depth of the denial cannot be explained by ignorance, only by knowledge. Yes, education is still important. But, what next? It must be within an open, honest big picture spoken out loud.
Richard – you are right, of course. Most people I know are aware of climate disruption but simply prefer to look the other way. But -other than giving up – there seems to be no alternative to keep the issue in the public arena, in the hope that more people will start to care enough to take a hit for their kids’ sake.
Climate litigation is growing rapidly around the world. More than 2,000 cases had been filed by the beginning of last year. Now, some are calling 2024 ‘The Year of International Climate Litigation’, or the year when it all really gets underway.
Next Monday, 22nd April, is recognised around the globe as Earth Day. Earth.org has listed ten particularly significant cases which are being brought this year: https://earth.org/the-most-important-climate-litigation-cases-of-2024-and-why-they-matter/
Not mentioned there but even more relevant to us here in Aotearoa is Mike Smith’s case against seven top polluting companies: https://www.claytonutz.com/insights/2024/february/nz-supreme-court-opens-door-to-climate-litigation-against-corporates-what-does-it-mean-for-australia
Finally someone taking on the arsonists, right here at home.