Together with her friend Tamar de Waal, Laura Burgers published an article in the Dutch philosophy magazine Wijsgerig Perspectief on activism through judicial procedures. The article is both a theoretical investigation into the emancipatory potential of constitutional states and offers a more practical action perspective for activists who want to use judicial procedures to attain their goals.
With the aid of theory by Claude Lefort and Jürgen Habermas, the article shows that constitutional states can be a source of emancipation, but that judges generally have to stay within the boundaries of democratically determined laws and principles. Judges have space to go against majority decisions only when fundamental rights are at stake. However, since these fundamental rights typically are human rights, environmental interests may lack judicial protection. For activists, it may still be wise to begin judicial procedures, because even when the procedure is lost, the mere media attention for the case may influence society-wide democratic deliberations and, after time passes, this might open up space for the judiciary to take into account more interests than it could before.
Laura Burgers & Tamar de Waal 'Activisme via de rechter' 57 Wijsgerig Perspectief 4 (2017) pp 25-33
Tuesday, 19 December 2017
Thursday, 14 December 2017
Anthropocentrism in European Private Law and the Case of Ben Nevis
It is a truth universally acknowledged
that a constitutional state in possession of democratic institutions must have
been made by humans. Law more generally is a human construction. Law is
considered by some to be even problematically anthropocentric, that is, it
would be overtly focused at human interests and thereby neglect the interests
of animals and other forms of life on the planet.[1] Yet,
in national legal systems across the globe, more and more natural entities get assigned legal personality: rivers, woods, mountains,
even Mother Earth herself. This fascinating movement has entered the sphere of
European private law, now the Scottish Muir
Trust Foundation considers to endow its property, the mountain Ben Nevis,
with legal personality.[2] Key
questions here are whether such a move would diminish anthropocentrism in the
law and whether it would lead to better environmental protection.
Anthropocentrism
Many agree that the legitimacy of
democratic laws follows from the idea
that all those who have to abide by it have a voice in its construction.[3] This
is very close to the principle of all
affected interests, stipulating that all interests touched upon by a
certain law should be considered in the process of law-making.[4] Yet
those who have a voice in the law-making process typically are human beings,
mostly inclined to defend human interests, which can lead to the problem of the
law to be anthropocentric. The results are clear: Even though international consensus
exists on the necessity to act upon - for instance - climate change, governments
find great difficulties to implement environmental measures. In the world of
today, many species are endangered or actually die out, rivers are polluted and
entire islands disappear below sea level. Human wealth and technology thrive more
than ever.
Legal personality
‘Legal personality’ is a status
the law can assign to an entity; it refers to the ability to bear legal rights
and duties and to defend those in court. Interestingly, legal systems do consider
not only human beings to be legal persons, but also corporations and
institutions such as municipalities, States, or churches. Animals or other
natural entities normally have no legal status – for the law, they are mere ‘things’.
This is to say that people may have responsibilities towards them, but normally
these natural entities cannot defend their rights in court rooms, let alone articulate
their voice, or vote in the political process.
Legal personality for natural entities
Yet in 2008, Ecuador was the
first country on the world to include in its constitution
rights of nature, or Pachamama.
Furthermore, in 2010, Bolivia proclaimed its Ley
de Derechos de la Madre Tierra (the law of the rights of Mother Earth) –
making the Earth a legal person in the Bolivian legal system. In Argentina, a
similar proposal is made. Last summer, in Columbia
and India,
courts recognized certain rivers to have legal personality;[5] in
New Zealand, the same was done by legislation for a
river and a
forest.
Environmental protection
In India and New Zealand, the
reasons for endowing these rivers with legal personality were mostly religious –
people in these countries consider the rivers to be divine entities. The Bolivian,
Columbian and Ecuadorian moves, in contrast, were inspired by more environmental
reasons. The Scottisch Muir Trust Foundation is ‘a conservation charity
dedicated to protecting and enhancing wild places in the UK’.[6] Its
reasons for giving the Ben Nevis – the highest mountain in the UK – the status
of a legal person is purely environmental: nature and wild life should be
protected. Lawyers working for the Muir Trust Foundation call themselves ‘wild
lawyers’.
Balancing rights in private law
The question now becomes, of
course, whether endowing a natural entity with legal personality indeed leads
to better environmental protection. To be a legal person and thus, to be able
to defend one’s rights in court, does not automatically mean one’s interests prevail in a private law conflict. On the contrary, in private law, rights and interests of two
parties are typically balanced against each other. Outcomes can be compromises
or an outright loss for one party. Imagine some corporation (= a legal person) would
litigate about its factory, situated close to the legal person the Ben Nevis.
The interests of this hypothetical factory could very well win against the
interests of the mountain in private law litigation. Therefore, possibly
stronger environmental protection could be obtained if governments simply
declared natural entities to be national parks, or official ‘wild life areas’
that merit absolute protection against industrial interests.
Power of private law and the role of judges
For that last option, however, governments
have to be willing to do so, whereas the core of problem ‘democratic laws are anthropocentric’
is precisely that environmental measures prove to be unpopular. The force of
private law, now, is its bottom-up nature: a private foundation, such as Muir
Trust, can decide to transform its property, a mountain, into a legal person.
Judges have a particularly important role to play here, for it is for them to
either acknowledge this legal personality and allow the natural entity standing
in court, or dismiss the whole construction as ridiculous.
Judges for Utopia
Judges applying European private
law should not be too proud, nor too prejudiced towards legal personality for
natural entities. Certainly, legal personality is a mere legal status - a
fiction, so to say - which does not lead to any better environmental protection
as such. In this vein, Nick Mount remarked about the Columbian river with legal
personality: “The Atrato River in general, and Rio Quito in particular, serve
as a stark reminder that awarding environmental rights is not the same as
realising them.”[7] Yet
we should not forget the symbolic power of fiction that may lead us closer to a
Utopia in the positive sense of the word. In political philosophy, calls are
made to include animal voices in the democratic process,[8] or
even ‘things’.[9]
The rivers with legal personality and the Ben Nevis cannot vote for the
elections (nor corporations, nor churches, for that matter). Yet to consider not
only humans and their corporations, but also natural entities to be persons,
legally speaking, might be a first step to turn the anthropocentric tide of our
legal system.
[1] Cf eg Stephen M. Gardiner Debating Climate Ethics Oxford University Press (Oxford: 2016), pp 32-37
[3] Cf eg Jürgen
Habermas Faktizität und Geltung; Beiträge
zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats Suhrkamp
Verlag (Frankfurt: 1998), p 14
[4] Robert Goodin explains very clear why this principle
reflects the essence of democracy in his ‘Enfranchising All Affected Interests,
and Its Alternatives’ 35 Philosophy &
Public Affairs 1 (2016), pp 40-68
[5] In India, this order is however stayed
by the Supreme Court – we have to await how this is eventually going to be
decided.
[6] https://www.johnmuirtrust.org/
[8] Sue Donaldson & Will Kymlicka Zoopolis, a Political Theory of Animal Rights Oxford University
Press (Oxford: 2011); Eva Meijer Political
Animal Voices PhD Thesis Univeristy of Amsterdam (Amsterdam: 2017), accessible
through https://pure.uva.nl/ws/files/15946241/Thesis.pdf
[9] Bruno Latour has called for a ‘parliament of things’
to be established in We have never been
modern Harvard Univeristy Press (Harvard: 1993) pp 142-145 and, later,
again in Facing Gaia Polity Press (Cambridge:
2017). In 2015, students set up a parliament of things to negotiate a new
climate agreement at the same time as the conference of the parties of the
United Nations Framework Convention on Climate Change, the latter of which
resulted in the Paris Agreement, which is celebrated for its ambition. It
turned out that the students, amongst whom not only representatives of
countries, but also of, for instance, oceans, were included, came up with an
even more ambitious agreement. This enormous experiment was caught by David
Bornstein in the movie Making it Work,
which can be watched online for free.
For further artistic experiments with this idea, see also
Monday, 16 October 2017
Metamorphosis? Article 47 EUCFR in UCTD cases
In the latest issue of the Journal of European Consumer and Market Law (EuCML), an article has been published by Anna van Duin on the role of Article 47 of the EU Charter of Fundamental Rights in cases concerning national remedies and procedures under the Unfair Contract Terms Directive. The paper has been selected as one of the three Best Publications by Young Researchers at the Law Faculty of the University of Amsterdam in 2016-2017.
The tale of Article 47 of the EU Charter of Fundamental Rights appears to be one of transformation and seduction. While the importance of the right to effective judicial protection is widely acknowledged, there is confusion and even controversy about its actual implications for national civil courts. This article revolves around the question how and why Article 47 may be referred to in European private law adjudication. It aims to shed light on the main characteristics and constraints of Article 47 by analysing the case law of the CJEU concerning national remedies and procedures under Directive 93/13/EEC. Four key judgments of the CJEU are discussed. So far, the CJEU seems reluctant to accept the potential of Article 47 Charter as a weighty source for interpreting national law, let alone for setting it aside or filling gaps in the enforcement and protection of EU rights at the national level. Yet Article 47 could shift the focus from the effective enforcement of EU law towards individual rights protection. As such, it may provide a valuable instrument for national civil courts in cases covering (aspects of) EU law.
A proof-version of the paper can be found here. For citation and research purposes, please refer to the final version published in EuCML.
A proof-version of the paper can be found here. For citation and research purposes, please refer to the final version published in EuCML.
Sunday, 15 October 2017
Judicial law-making in a changing European legal order
Workshop 'Judges in Utopia', Amsterdam 28-29 September 2017
Report by Timo Zandstra (student assistant)
Report by Timo Zandstra (student assistant)
Theory and practice suggest that the European judiciary increasingly takes on a more active role when deciding on cases in which different norms conflict. The courts are increasingly called upon to balance different values and to reconcile conflicting interests, such as balancing public interests in private relationships, as in Urgenda (2015) and CJEU Aziz (2013). Such delicate balancing necessarily comprises legal-political and institutional dimensions, and the court’s value-judgements as such invariably yield political implications. At present, a continuing ‘Europeanisation’ of private law extends this judicial balancing to the interplay of national and supranational rules in the multi-layered order of the EU, involving diverging ideas of justice and principles of law at the interface of EU and national private laws. Such hard cases may provoke innovative case law, sometimes attracting the label of ‘judicial activism’. How can we explain such rulings? How do we assess their democratic legitimacy? And, ultimately, what should the role of the judiciary be when reconciling conflicting interests at the interface of EU and national private laws? The workshop of 28-29 September facilitated dialogue between leading academics and legal practitioners on these questions (click here for the programme).
Contributions came from inter alia Jaap Spier and Luc Lavreysen, who argued that the judiciary should take on a more active role in solving global issues such as climate change in order to compensate political inertia. Moreover, CJEU Advocate General Maciej Szpunar elaborated on the tension between the case law of the Court and the procedural autonomy of the Member States, whilst Laura Burgers proposed a democratic legitimation of the Urgenda decision from Habermasian democratic theory. Oliver Gerstenberg, Chantal Mak, Micheal Dowdle and Dorota Leczykiewicz presented their work on the ideas of justice underlying the construction of a European polity and the potential of Fundamental Rights to serve as standards in judicial deliberations.
Furthermore, Fabrizio Cafaggi and Anna van Duin presented on the eminent role of courts in the interpretation and application of, and the development of (national) remedies and procedures based on, the fundamental right to effective legal protection – in particular under EU consumer law. Cafaggi spoke of the interaction between private and administrative enforcement; Van Duin presented on the role of article 47 ECFR in the case law of the CJEU on unfair terms. Spanish judge José Maria Fernández Seijo emphasised the search for justice in finding solutions for ‘real-life’ problems; Aida Torres Perez expanded on the narrative of judicial mobilisation in the case of housing rights in Spain. And finally, Aurelia Colombi Ciacchi expanded the debate to the level of judicial governance, expanding on different models across the EU member-states.
Just as the case law will evolve and develop, so will the questions discussed during the workshop increasingly be coming back to the national and European judiciary. The debate is blooming and, in the face of rising Euroscepticism and pan-European challenges, perhaps more relevant than ever: the shared search for justice binds the European polity - people and judiciary alike.
Friday, 22 September 2017
Opinion on Milieudefensie case in newspaper NRC
The Dutch newspaper NRC Handelsblad published an opinion article written by Laura Burgers, arguing that the judge rendered a democratically legitimate judgment in the Milieudefensie case that was already discussed at this blogpost.
See: Stop behalve luchtvervuiling ook debatvervuiling.
See: Stop behalve luchtvervuiling ook debatvervuiling.
Monday, 11 September 2017
Workshop 'Judges in Utopia' (Amsterdam, 28-29 September 2017)
See the announcement on the UvA-website (click here) for more information and the programme.
 |
| Source: http://www.joh.cam.ac.uk/ |
Friday, 8 September 2017
Dutch NGO wins summary proceedings against Dutch State on air quality
A trend of European case-law on air quality
The 7th of September,
the Dutch NGO Milieudefensie won summary
proceedings against the Dutch State on air quality. This case fits in a true
trend following from the European Union Air Quality Directive 2008/50/EC, which regulates the maximum tolerable levels of pollution in the air caused by inter alia nitrogen and particulate matter.
In the UK, the NGO Clientearth has
litigated on failing air policy all
the way up to the CJEU and back
to the UK High Court again, winning every case against the government. In
France, Les amis de la terre France obtained
a
similar result last July before the Conseil
d’État. And only one day before the Dutch judgment, the German NGO Deutsche Umwelthilfe reached a comparable
outcome before the Verwaltungsgericht
Stuttgart. In this blogpost, I focus on the Dutch case.
Milieudefensie’s case in the
Netherlands
As reported
on this blogpost, in August 2016, the Dutch NGO Milieudefensie started tort proceedings against the Dutch State because
Dutch policy on air quality would be insufficient. Interestingly, this claim
did not only rely on the legally binding European directive on air quality, but
also on soft law WHO
guidelines in a complex private law construction echoing the reasoning of
the controversial Dutch Urgenda case.
To speed up the proceedings,
however, this summer Milieudefensie started
summary proceedings (“kort geding”) concerning only the violation of the European
directive. The 7th of September 2017, the judge decided
in Milieudefensie’s favour: The Dutch
State must, as of now, do everything possible to comply with the European norms
as soon as possible. A decision on the more ambitious WHO guidelines will
follow after the substantive proceedings (“bodemprocedure”) to be held at the
14th of November 2017.
Admissibility
In her judgment, the judge Mrs.
Groeneveld-Stubbe rejects the State’s argument that the claim would be inadmissible
because it would rather be an issue for administrative law proceedings rather
than private law proceedings. In Dutch law, only individual cases can lead to administrative
review, whereas this dispute is about a national plan on air quality, she reasons.
Private law proceedings are the only option (§4.2).
Furthermore, the judge finds that
the case is sufficiently pressing to justify a judgment in summary proceedings –
the earlier measures are taken to improve air quality, the earlier these
measures are likely to have effect (§4.4). Neither is the case too complex for summary proceedings, because both parties
agree on most of the facts (§4.5).
The air quality plan
The State recognizes that in
certain areas, the critical levels demanded by EU Directive 2008/50/EC are
surpassed and that required deadlines have been missed, since these were fixed in 2015 (for nitrogen) and 2011 (for particulate matter), respectively (§4.6). The
judge does not agree with the State that it lacks the competences to solve
local issues, because it was the State itself that choose to decentralize its
duty to guarantee air quality (§4.7). Furthermore, the judge deems irrelevant the State’s observation that Dutch air
quality is better than before; after all, what matters is not the comparison
with earlier times, but the comparison of Dutch air quality with the quality
demanded by the Directive (§4.8).
The judge agrees with Milieudefensie that the Dutch “Nationaal
Samenwerkingplan Luchtkwaliteit” (national cooperation plan on air quality)
does not comply with the Directive: The Directive requires an air quality plan to
keep exceedance periods ‘as short as possible’, which cannot be said with
certainty of the Dutch plan (§4.11). Furthermore, the Dutch plan lacks detailed analyses of problem situations,
demanded by Annex XV of the Directive (§4.12).
Judgment
For these reasons, the judge
orders the State to do everything possible, within two weeks after the judgment,
to make its air quality plan comply with the Directive. Which measures the air
quality plan should contain, is for the Dutch State to decide (§4.13). The
judge does not agree with Milieudefensie that
critical levels should per se be met within 2018 – she cannot say with
certainty whether this time-frame would be the ‘shortest possible’, since she
does not know yet which measures the State will adopt (§4.14).
She does however agree with Milieudefensie that the State must
immediately begin to identify the locations where exceedances take place – such
is necessary to come to a sound air quality plan (§4.15). Measures can only be taken after the plan is made in detail, not, as Milieudefensie asked, immediately after
the identification of these locations (§4.16).
Moreover, the judge follows Milieudefensie in forbidding the State
to take measures that are expected by the RIVM (the Dutch national institute for public health and the environment) to statistically contribute to
new exceedances, since this is already required by the EU Directive and the national
environmental statute (“Wet Milieubeheer”). The State tried to invoke Article
6:168 of the Dutch Civil Code, which gives the judge the possibility not to
forbid torts by the State in so far as they should be allowed because of imperative
societal interests. The judge does however not follow this argument, since the
State did not pinpoint which measures would be of imperative societal interest.
What’s next?
Secretary of State Sharon Dijksma
has reportedly announced to immediately act upon the judgement.[1] The
judgement is likely to pre-empt plans of the government to raise the maximum
speed on highways - unless, of course, the government comes with a plan effective enough to compensate for the extra pollution caused by faster riding traffic. Thus, the outcome of the summary proceedings can be called
significant. For those interested in judicial law-making in European private
law, the substantive proceedings of Milieudefensie’s
claim will be truly exciting. There, the Court will decide whether the Dutch State
indeed commits a general tort under the doctrine of hazardous negligence (“gevaarzetting”)
by not doing even more against air pollution than required by the European
Directive, endangering its citizens’ health, as argued by the NGO.
[1] Marcia Nieuwenhuis ‘Kabinet
versnelt plannen tegen luchtvervuiling: 'Hoop voor longpatiënten'’ Algemeen
Dagblad 7 September 2017
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