The Role of Judiciary in Global Environmental Governance

Mr President, distinguished colleagues,

it is a privilege and a great pleasure to be invited to address this important and timely conference. In my speech I shall discuss the role of national courts in defending the environment.

According to the Montesquieuan doctrine of separation of state powers, legislation is typically vested with Parliament, executive powers with the Government, and judicial powers with independent courts. The model is based on a balanced division of powers, or checks and balances, as the Americans say.

In a system of rule of law, explicated for instance in the Treaty of the European Union and in the guidelines of the Venice Commission under the European Council, decision-making shall be based upon law, basic rights, fundamental freedoms and human rights shall be respected, and the fulfilment of rights and legality of decision-making shall be safeguarded by independent courts.

Typically, we emphasize that courts shall be independent from the government and public authorities. Ultimately, courts are there to protect individuals against the State: they shall prevent abuse of power and biased treatment. Of course, this holds true with the rights to a decent environment, too.

Courts shall abide by law. In that sense, they are not independent from legislation, but Parliament must not intervene concrete court procedures and decisions. But if courts' application of law does not correspond to the intentions of political decision-makers, the legislator can change the rules. Law is a vehicle to realize political objectives and make choices between conflicting interests. However, not even Parliament is sovereign: human rights and fundamental freedoms, emanating from international human rights treaties and national constitutions, shall be respected.

Different courts have different opportunities to defend the environment. To oversimplify: constitutional courts may declare an Act of Parliament void if it conflicts with the constitution, general courts decide civil and criminal cases between a plaintiff and a defendant, and administrative courts' task is to assess, on the basis of appeals, the legality of administrative decisions.

The Federal Constitutional Court recently ruled that the German Climate Act was unconstitutional by not specifying emission reduction targets after 2030. The Dutch Supreme Court decided in the famous Urgenda case that the government was liable of violation of human rights because the measures adopted to meet the requirements of the Paris Agreement were deficient. But do you know why the Urgenda case was decided by the Supreme Court and not by the Supreme Administrative Court, which is typically competent in environmental cases? It is because there was no administrative decision by the government or authorities, which could have been challenged by appeals to the last-mentioned court. The government had remained passive.

Besides different courts, there are also different legal cultures. We may distinguish between common law and civil law states. Some legal systems, typically Anglo-American, are rights-based: courts define and protect individual rights. In other legal systems, typically German, French, and Nordic, citizens' rights and public authorities' obligations are comprehensively provided in written legislation; courts shall apply the law and give legal protection to individuals, and also control the legality of administrative decision-making. In civil law systems the role of the legislator is by far greater than in common law states, and the courts' respect for primacy of law is remarkable.

If the national legislator neglects adequate legislative measures to tackle e.g. climate change, what can a supreme administrative court do? Politically responsible decision-makers define the outlines of development of the society. Societal objectives are transformed to legally binding norms through a legislative process, authorities execute legislation, and courts ultimately confirm the correct interpretation of law. In my country Finland, due to history, a legalistic view on law prevails. Courts interpret law texts by using historical, systematic, and teleological methods, but respect the letter of law. This compares also to the ideology of the rule of law: judges who are not appointed on political grounds and not elected in a democratic process, shall interpret and apply the law – not create the law, which shall be based on the will of political decision-makers.

You may wonder why I emphasize this so strongly. It is because I am not comfortable with the idea that so-called green courts should advocate environmental goals. Courts should be impartial between different interests protected by law. Green courts should be specialized in environmental law and judges should be aware not only of law, but also have basic knowledge on environmental sciences, technology and so on. On the other hand, I find it difficult to accept that a national court should remain a passive interpreter of deficient national legislation, when existential issues of humankind are at stake.

Rule of law not only requires obeying of law but also respecting and safeguarding human rights against lack of ambition of the legislator. If, say, the European Human Rights Court in the pending case raised by Portuguese youth would decide that the respondent states violate human rights of future generations by not issuing adequate legislation to tackle climate change, it would be a major impulse to national courts. An interpretative effect of Strasbourg Court case-law and national constitutions' environmental clauses would oblige national courts to interpret and apply present legislation as far as ever possible to fight climate change – without compromising their role as courts.