The author Roger H J Cox is a partner in the law firm of Paulussen in the Netherlands. The original Dutch title was published in 2011 by a Dutch NGO, Planet Prosperity Foundation. The excellent English translation was published last month.
“Revolution Justified’ struck me as a strange name for a book. I was attracted by the word ‘Revolution’ because, like I suspect many if not all readers of this review, I believe that nothing short of a revolution, or transformation, will enable humanity to cope with the problems we face today. I assumed that this book would set out the case for revolution. Indeed it does and the argument has much in common with the views of Feasta members – including in particular the seriousness of the current situation in relation to climate change, the urgency of the need to cut down on CO2 emissions from the use of fossil fuels as recommended by climate scientists and the debilitating effect of the multinational corporate domination of nation-state governments, especially by the fossil fuel industry, on their ability to respond. This is mostly familiar ground and it is no surprise that James Hansen, the most famous client scientist calling for urgent reductions in CO2 emissions, has written a foreword to the book.
The author rightly sees government failure as a failure of democracy. Numerous other authors, including myself, have come to much the same conclusion. The failure is systemic. A revolution is needed, you could say ‘justified’. The interesting question which hangs over the whole world today is: but how? Governments alone, the author insists, have the capacity to ensure that the necessary precautionary measures are taken. So the question for him is: how can governments be forced to take the necessary measures, normal political processes, including massive lobbying by NGO’s and campaigners, having failed?
Cox’s answer: the law. Judges can order governments to take the necessary precautions. Governments will have no option but to comply. “The basic legal frameworks are already in place, as are the laws and treaties needed to enable the judiciary to assume a more powerful role in countervailing the failing legislative and executive authorities…The West’s existing legal system can and must provide the solution for achieving a rapid energy revolution… our legal system already contains all the elements needed to achieve this revolution faster and more effectively that any other alternative.”
These claims are strongly supported in Part 4 of the book which makes fascinating reading. As one would expect from a lawyer, the argument is based on well-established principles and decided cases. The basic duty is the duty of care which arises when there is a hazardous situation with the potential to result in injury or damage. The standard of care is that of the prudent man. The duty applies to states as well as citizens and corporations. “The obligation on the state to act prudently and take precautionary measures commensurate with the danger of …. climate change will play a major role in the revolution by law”. “the revolution by law”: so this is the other sense in which the revolution is ‘justified’: not only is it a necessary revolution, the instrument for achieving it is the judiciary: “it is the judiciary and the application of the flexible prudent man standard that can step into the legislative vacuum and provide a way out”.
Reliance is placed on the extensive litigation dealing with the public health risk of asbestos. Governments can’t claim ignorance of the risks. The US Supreme Court’s judgement in Massachusetts v EPA is shown to be helpful on a number of issues, including the right of Massachusetts to bring the action, and the duty of the EPA to act, notwithstanding that climate change is a global issue and that the risk of catastrophic harm may be remote.
In addition to the possibility of an action against a nation-state government being based on breach of the duty of care, Cox considers how the European Court of Human Rights may be able to play a key role. Decisions of the Court against Romania and Turkey are cited to show that it applies the precautionary principle. The Charter of Fundamental Human Rights of the European Union which came into force with the 2009 Lisbon Treaty made the protection of human rights a key pillar of the European Union. Cox believes that the European Court of Justice “will be able to play a central role in the revolution by law”.
Who should bring the legal actions against governments advocated in this book? The answer given in the book is that government bodies and agencies operating at local and regional levels and other large landowning organisations would appear to be the best position to launch claims against both national governments and the EU. The claim could be to seek much more urgent reductions of CO2 emissions.
What I specially appreciated about this book, having recently read numerous academic books on the subject of climate change and what to to about it, is that it is not an academic book. It is a call to action – legal action. The book carries a warning: “You do not have the right to remain silent after reading”. Moreover Cox has led by example. As reported in the Guardian on November 14, a Dutch organisation called Urgenda is threatening legal action against the Dutch government. I have been sent a copy of their 6-page letter before action dated November 12, which I suspect was settled by Cox, requesting a government commitment to ensure a 40 % reduction of Dutch greenhouse gas emissions by 2020. Failing a written assurance with 4 weeks, Urgenda says it will turn to the courts.
As I should have mentioned: the book’s title is “why only the law can save us now”. As Feasta readers will know, this is close to the view the Feasta Climate group have reached. But the idea we are working on is not to sue governments but to sue representatives of the fossil fuel industry. Fortunately there is no contradiction between the two proposals. Cox makes clear that in his view fossil fuel multinationals are no less immune than states: the fossil fuel industry can ultimately be held to the self-same precautionary duties as apply to asbestos companies: they could find themselves liable with retro-active effect. I think we can look forward to a close working relationship with Roger Cox and the organisations he is working with.
Featured image: Old Bailey. Author: Bren Leslie. Source: http://www.sxc.hu/photo/301905
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For 30 years John practiced as a barrister in London advising clients about the law of trusts. Increasing awareness of the deep-seated flaws in mainstream economic and political systems led to using his professional expertise to help establish a number of new institutions, including FIELD the Foundation for International Environmental Law and Development and Feasta the Foundation for the Economics of Sustainability. Publications include two Feasta Reviews, edited jointly with Richard Douthwaite, and the Schumacher Briefing Gaian Democracies, written jointly with Roy Madron. His most recent work is an article on the global governance systems needed to tackle climate change, which appears in the Feasta book Sharing for Survival, published in April 2012.