Summary

This thesis touches upon the ongoing debate on the role of courts in adjudicating politically sensitive cases. This debate has been ongoing in the Netherlands for several decades, but has intensified in recent years due to recent case law with a significant impact on Dutch politics and society.

An important judgment that has particularly intensified the aforementioned debate is the judgment of the District Court in The Hague on 24 June 2015 in the Urgenda case. In this judgment, the District Court ordered that the Dutch State must ensure that the greenhouse gas emissions in the year 2020 will be 25 per cent lower than the greenhouse gas emissions in 1990. This order has attracted much attention, not only from the Dutch media, politicians and scholars, but also from foreign media. According to some scholars, the District Court’s order violated established case law of the Dutch Supreme Court, holding that a mandatory order to the legislature is fundamentally at odds with the constitutional role of the judiciary and is therefore not possible. Other scholars have argued that climate change is an issue that should not be addressed in court at all.

The criticism on the District Court’s ruling did not convince the Courts of Appeals and the Supreme Court. In its judgment of 9 October 2018, the Court of Appeals agreed with the District Court that the Dutch State must ensure that Dutch greenhouse gas emissions in 2020 will be at least 25 per cent lower than those in 1990. The Court of Appeals therefore upheld the District Court’s order. On 20 December 2019, the Supreme Court affirmed the judgment of the Court of Appeals. In line with the Court of Appeals, the Supreme Court ruled that the obligation for the government to reduce greenhouse gas emissions can be derived from the right to life and the right to family life laid down in Article 2 and Article 8 of the European Convention on Human Rights. The Supreme Court rejected all arguments brought forward by the government, including the more fundamental argument that the present case should not be decided in court at all and that the District Court’s order is fundamentally at odds with the constitutional role of the judiciary.

The judgment of the Supreme Court in Urgenda does not end the ongoing debate on the role of courts in adjudicating politically sensitive cases. In support of their argument that the courts should not have decided the issue of climate change, Dutch scholars have referred to the political question doctrine that has been developed and has been applied by courts in the United States. The political question doctrine says that some issues or questions fall outside judicial control, but should be decided and resolved by the political branches of government. This doctrine has also been mentioned in response to other recent cases in the Netherlands, such as the criminal proceedings against Geert Wilders of the Dutch Freedom Party and recent proceedings on the European Stability Mechanism, Brexit, and the government’s handling of the outcome of the referendum on the association agreement between the EU and Ukraine.

In light of the ongoing debate on the role of courts, this thesis discusses whether there is a political question doctrine in the Netherlands, preventing courts from adjudicating politically sensitive cases and, if so, how this doctrine relates to the political question doctrine in the United States.

Part I discusses the political question doctrine in the United States.

Scholars agree that the political question doctrine ultimately derives from the famous decision of the United States Supreme Court in Marbury v. Madison (1803). In its ruling, the Supreme Court acknowledged the power of federal courts to invalidate a statute or executive action on the grounds that it violates the American Constitution. In reaching this conclusion, the Supreme Court wanted to temper those who though that the Court was taking too much power. The Court did so by also acknowledging that some acts or decisions are unreviewable in court. The Court made clear that this more specifically applies to discretionary acts which are in their nature political or by the Constitution and laws submitted to the Executive. Case law following Marbury v. Madison provides examples of acts, decisions or claims that are unreviewable in court, such as decisions on the sovereignty of foreign territories, decisions on the boundaries of nations, and decisions on whether a foreign state is able to carry out its treaty obligations. Other examples include claims under the Guarantee Clause and the process of amending the Constitution.

This does not mean, however, that the contours of the political question doctrine were clear and settled. The exact scope of the doctrine, the relevant criteria or tests for courts to determine whether a political question is present, and the legal basis for courts to refrain from adjudicating certain acts, decisions or claims, were still unclear. The Supreme Court provided more clarity on these aspects in Baker v. Carr (1962). In that case, the Court emphasized that the political question doctrine is primarily a function of the separation of powers and is closely related to the case-or-controversy requirement in Article III, Clause 2, of the Constitution. The presence of a political question renders the case nonjusticiable.

In Baker v. Carr, the Supreme Court also introduced six factors or tests for determining whether a political question is present. According to the Court, prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it, or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

These factors determine the scope of the modern political question doctrine and are textual or prudential in nature. Although their wording suggests that these factors are rather broad, meaning that it is easy for federal courts to conclude that a political question is present, case law following Baker v. Carr illustrates that the Supreme Court is very reluctant to do so. The Court has applied the political question doctrine only in three cases: Gilligan v. Morgan (1973), Walter Nixon v. United States (1993) and Rucho v. Common Cause (2019). It follows from these cases that decisions or claims related to the employment of the National Guard, the impeachment of federal officers and partisan gerrymandering, respectively, qualify as political questions and can therefore not be resolved in court.

Scholars have argued that the Court also implicitly applied the political question doctrine in O’Brien v. Brown (1972). This case related to the unseating of delegates to the Democratic National Convention. By refusing to adjudicate this case, scholars argue, the Court made clear that the organization of political parties qualifies as a political question as well. However, even if O’Brien v. Brown is taken into account, the Court has applied the political question doctrine only in four cases since Baker v. Carr.

All this suggests that the relevance of the political question doctrine in the United States is very limited in practice. In determining whether a political question is present, the Supreme Court primarily focuses on Baker’s first and second factors, that is whether there is a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it. The Court has never considered a political question present on the basis of Baker’s final factors alone. The Court’s clear focus on the Baker’s first two factors significantly limits the scope of the political question doctrine.

The fact that the Supreme Court has applied the political question doctrine only in three or four cases since Baker v. Carr, while no reference is made to the doctrine in most cases before the Court at all, including Bush v. Gore, has triggered scholars to argue that the doctrine is in serious decline or even no longer exists. This thesis concludes that such statements are incorrect. Case law following Baker v. Carr confirms that the political question doctrine does not prevent federal courts from applying and interpreting the Constitution and statutes, and assessing whether a statute is constitutional. As the Court emphasized in Zivotofsky v. Clinton (2012), this is what courts do. As almost all cases ask the Court to apply and interpret constitutional provisions and statutes, the political question doctrine is often irrelevant.

The recent application of the political question doctrine to partisan gerrymandering claims in Rucho v. Common Cause (2019) confirms that the political question doctrine is not completely redundant in the United States. In addition, an analysis of lower case law indicates that lower federal courts frequently apply the doctrine. They have often done so in cases in which the wisdom of discretionary decisions by the political branches in the realm of foreign affairs or national security is being contested. Examples of such decisions are decisions to go to war, take action to keep a foreign leader in power, support a military coup in another country, develop a military basis abroad, or give aid to another country. As lower federal courts consider military actions by the army or the CIA closely intertwined with such underlying decisions, they also consider those actions to be political questions.

Part II of this thesis focuses on the Netherlands.

Dutch law provides for very limited possibilities for courts to deny jurisdiction. Article 112 of the Dutch Constitution confirms that Dutch civil courts are competent in cases in which the claim is based on private law. The Dutch Supreme Court has ruled that invoking rules of Dutch private law already triggers the jurisdiction of civil courts. Whether rules of private law are actually relevant and determinative for solving the case does not affect the civil courts’ formal jurisdiction. As a result, civil courts always have formal jurisdiction in the Netherlands. Any specific procedures for bringing cases to an administrative court do not affect the civil courts’ formal jurisdiction, but may affect the admissibility of the claim or lead a civil judge to adopt, for pragmatic reasons, a legal fiction that a decision that could have been contested before an administrative court is in accordance with the law.

A similar conclusion applies with respect to the requirement that a claimant must have a cause of action. In practice, Dutch courts assume that a cause of action is present, except when a claimant initiates a case only for emotional reasons. In addition, Dutch law explicitly allows for interest groups to initiate cases directed at promoting constitutional values and other public values. The Urgenda case is a recent example. Scholars have argued, however, that the right to initiate cases directed at promoting constitutional values or other public values enables interest groups to get civil courts involved in issues and topics that are subject to political debate and should therefore not be resolved in court.

Although Dutch law does not allow courts to decline cases for the sole reason that a case is politically sensitive, several approaches can nonetheless be identified that seem very similar to a political question doctrine. Based on an analysis of relevant case law, this thesis distinguishes between two types of cases in which Dutch courts adopt an approach that is very similar to the political question doctrine applied by federal courts in the United States.

The first type of cases relates to foreign policy and defence. According to the case law of the Dutch Supreme Court, courts must refrain from conducting a thorough assessment of decisions or acts by the political branches of government in the realm of foreign policy and defence. Instead, the courts must conduct a very marginal assessment. Examples of cases in which the Supreme Court has adopted this approach relate to the potential use of nuclear weapons and decisions by the Dutch government whether to participate or support military actions abroad or to repatriate children and women of Islamic State fighters in Syria and Iraq. Dutch courts have never declared any of these decisions or acts unlawful.

The reasons for conducting only a very marginal assessment in cases related to foreign policy and defence are similar to the reasons for applying the political question doctrine by federal courts in the United States in cases that touch upon similar topics. According to the Dutch Supreme Court, the political branches of government have much discretion in this respect, as acts or decisions on foreign policy are political in nature and a result of political debate. In addition, scholars have argued that the provisions of the Dutch Constitution on foreign policy and defence do not provide for any clear and manageable standards for courts to assess such acts or decisions. This is in line with Baker’s second factor.

There is one important difference, however, between the approaches of the Dutch courts and federal courts in the United States. This difference relates to military actions taken by the army on the ground. As noted, lower federal courts consider military actions taken by the army and the underlying decisions by the political branches of government closely related. If such latter decision qualifies as a political question, this also applies to the actions taken by the army to implement this decision. The Dutch Supreme Court does not follow this approach. Although Dutch courts must conduct only a very marginal assessment of political decisions on foreign policy and defence, which is similar to a political question doctrine, this does not apply to military actions taken by the army to implement those decisions. Actions taken by the Dutch military are, in principle, fully reviewable in court.

The second type of cases in which Dutch courts apply an approach that is similar to a political question doctrine relates to the political decision-making process. This approach has been applied only in more recent case law and prescribes that Dutch courts should decline to adjudicate a case if a ruling would directly interfere with the political decision-making process. Such interference would be present when the courts are being asked to rule on a topic or issue that is the subject of political decision-making. In such case, courts must respect and await the outcome of the political-decision making process. According to Dutch courts, the distribution of powers under the Dutch Constitution requires courts to do so. In line with Baker’s first factor, it could be argued that in the Netherlands these cases are constitutionally committed to the political branches of government. Part III evaluates the political question doctrine by focusing on the principles of separation of powers, check and balances, and the right to access to a court. Based on relevant literature and case law, this thesis concludes that a political question doctrine does not violate these core principles.