Acceso usuarios
Douwe de Lange
In recent years, the US and the Netherlands have been on opposing sides of the spectrum regardingclimate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societalchange, whilst climate claims in the US have been largely unsuccessful. In a way this differenceseems strange, because the US judiciary has the power of constitutional review, whilst the Dutchjudiciary does not. Against that background, this paper extensively compares the doctrines of judicialcompetence regarding political questions in both jurisdictions. As a comparative framework, thispaper uses three judicial phases, namely: the institutional phase, the substantial phase, and theremedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focusedon the substantial and remedial phases, which has allowed it more freedom in reviewing climate liti-gation. On the other hand, climate litigation reveals that the US doctrine of judicial competence isfocused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). Themain contribution of this paper to the constitutional debate is that climate litigation reveals funda-mental differences in doctrines of judicial competence. This is not only an important takeaway forfuture climate litigation, but also, in terms of the Radbruch formula, for other potential gapsbetween the executive and justice.
