Métodos de diseño de sobrecapa

After having highlighted the historical view, the modern view on the Dutch administrative system and the external environment, the theoretical framework proceeds to explain todays discourse in the academic field on governance. The current notions on governance started to take hold since the 21th century and still continues to be a mainstream discourse in Public Administration. The theoretical framework started with explaining the governance discourse in general by showing the differences with regular government. In the view of governance, there is a diffusion of the public and private sphere, and civil society has taken a significant role. The government is thus regarded as one of the actors in the policy field, which has become a network of organizations. Within this discourse, the theories of Multi-Level Governance and Good Governance have been developed.MLG perceives governments as divided in different vertical layers; local, regional, national and supranational or intergovernmental, but also in different horizontal layers. This

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causes policy-making influences to be shared and diminishes the autonomy of national governments. The concept of Good Governance addresses different aspects that a government should keep in mind when creating policy and is therefore often used for evaluative purposes. The eight characteristics of good governance are: participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law (UNESCAP, date Unknown).

So is the court case in the Netherlands indeed influenced by these current ideas, and if so, how? After making a scan of finding aspects of governance in the case study, it can be stated that the verdict is partly indeed stimulated by views on governance, but also that there is still a call for an accountable government. The verdict of the court case applies to the government of the Netherlands alone. The court case itself thus holds the government accountable because it is within their power to exert control over GHG emission in the Netherlands, even though the government does not emit the GHG themselves. So the court case itself is not based on the view of governance, but on the view of government that has the role of providing, commanding and controlling as stated by the table 8 of Leach and Percy-Smith (2001 in Bulkeley & Betsill, 2003: 17). Outside of the court case however, the idea of governance is more present than the governmental view. This is mainly due to the involvement of civil society, the exercise of networks and partnerships and the role of the government in steering, facilitating, collaborating and bargaining. The involvement of civil society is visible in the Dutch Agreement on Energy and Sustainable Growth and in the Europe 2020 growth strategy. For example, the SER noted that ‘an approach in which all relevant stakeholders, (local) governments, employers’ associations and unions,

environmental organisations etcetera, take responsibility was considered appropriate’ (SER,

2015: 3) and the website of Europe 2020 argued that ‘exchange of good practice, benchmarking and networking is the key here to create a sense of ownership needed to reform. The European Economic and Social Committee has especially an important role to

drive the participation of civil society and social partners in implementing the strategy’. The

Dutch corporate system aimed at achieving agreements is quite appropriate with the combination of the views of governance. Having multiple actors to join and co-decide on policy fields is therefore something that is embedded in the Dutch system. This could provide benefits when the Netherlands indeed needs to implement the policies necessary to achieve the 25% reduction in GHG emissions. On the other hand, it is indeed visible that the

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court holds the government itself accountable, which would mean that there is a disconnection between the state-centric views within the court case and in the views of governance as used in the political/corporate arena where policy is made. Before it will be explained what this means for the outcome of the court case and for any recommendations, the notions of MLG and Good Governance shall be analysed first.

The influence of MLG is visible due to the international orientation of the case. Interestingly, the views of MLG is used as an argument by the judicial branch, as well as by the government, although they have opposing points of views. The judge stated that the international treaties and guidelines by the European Union can play a role in the open norm of the judge when dealing with unlawful acts, which was indeed the case. Furthermore, the judge argued that the government should not hide behind the fact that the issue does not only depend on Dutch efforts. On the other hand, the government of the Netherlands argued that climate change is an international issue, that needs international coordination which is especially aimed at the period of 2020-2050. Because of this need for international coordination, the verdict would not be just as it is only aimed at the government of the Netherlands. Now that the issue requires international orientation however, does not specifically mean that aspects of MLG are present. MLG is visible however in the way policy is made and how policy is consistent on national, regional and international level. For example, the Europe 2020 growth strategy is based on the treaties and thus on the policy agreements made on international levels. Similarly, the national policy of the Netherlands in reducing GHG emissions complies with such international treaties. But does this decrease the level of autonomy of National governments, as the perspective of MLG argues? On the one hand the Netherlands still has the autonomy on how the goals should be reached and with what means. This means that the implementation phase still belongs to the autonomy of the national government and thus addressing the state-centric view. Yet the policy development phase is decided by international agreements, on which the Netherlands only has a small share. On top of that, the regional and local levels play quite a significant role in implementing the goals as well. For example, the website of the EU 2020 strategy mentions that ‘in many EU countries, the regional or local authorities are responsible for areas linked to the Europe 2020 strategy… It is crucial that all levels of governance be aware of the need to implement effectively the Europe 2020 strategy on the ground so as to achieve smart, inclusive and sustainable economic growth, and that each plays its part in introducing the

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necessary changes’ (Website Europe 2020, date unknown). This does decrease the amount

of autonomy of national governments, because the regional and local levels skip the national level and have direct contact with the EU level. This shows that the policy cycle is not only decided by the national government of the Netherlands, but that there are multiple vertical layers that play a role.

The court case itself however, is based on the state-centric view as the verdict applies only to the national government. So this may indeed seem like an uncomfortable position for the government; while policy goals are decided in the international arena, and the national government attempts to reach these goals, the national government gets accused for having their aims too low. Which would mean that the national aims (decided internationally) to stay below the increase of two degree Celsius, would not suffice. So the accountability is put at the national government, even though a lot of decisions are made in the international field. This opposes the MLG view in which policy responsibility is shared across the different layers. On the other hand, in the court case system that is currently in place, it is used to accuse one actor only. So it can be asked whether the whole international or EU arena and the actors involved can be forced by the judicial power to create goals that would reduce GHG emissions more if it is indeed the case that citizens get harmed by insufficient aims. Although it has been mentioned in the theoretical framework that international agreements is a method of forcing governments to reach certain goals already, one could ask what should be done if this does not seem sufficient.

MLG in vertical layers does not seem to be influencing the court case itself directly, yet it is still present within the governmental system nowadays and in the way policy is made and shaped, environmental policy especially. This is due to the international decision-making procedure and due to the fact that local and regional organizations get closely involved in implementing such policy. It can be questioned whether this procedure could influence the court case indirectly, as the judge could force the government of the Netherlands more easily when their autonomy is shared across multiple vertical layers. This would have to be investigated further however as the data found in this research does not provide these answers.

The above paragraphs on MLG were focussed on the vertical levels of governance. However, MLG also addresses the decrease in autonomy due to shifts in decision making on horizontal levels. This dimension refers to agreements, power relations and cooperation

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between different institutions at the same layer, instead of at different layers. When applying the notion of MLG within horizontal levels to the court case itself, the question whether the judicial power is stepping into the political arena is raised again. The judicial power is positioned on a similar layer as the executive branch and the legislative branch (although the legislative branch is also very influenced in the international arena). It has already been stated that the judge did not believe that it was overstepping its boundaries, as each branch has its own responsibilities. ‘It is an important characteristic of a state governed by the rule of law that even independent, democratically legitimated and controlled political institutions, can, and sometimes even must, be judged by an independent judiciary’

(Attachment 2). The government however believes, as written in the statement of appeal, that it is principle unjust for the judicial power to come to this decision, as it concerns the public interest and policy should thus be made by the legislative branch, without examination of the judicial branch. W. Voermans also gave several arguments on why the government of the Netherlands should decide to appeal the case. The most important reason in this sense was that it disrupts political considerations and makes governments reluctant to create agreements and goals. The decision of the judicial branch however is not so much influenced by the notion of MLG in horizontal layers, but it is rather influenced by the different perspectives of the trias politica, shifts in power and perhaps by MLG in vertical levels. The notion of MLG is also aimed at policies and solving problems in a system in which organizations rely on one another, while it is not used in the context of a court case in which actors oppose each other in points of view. It cannot be said therefore that MLG had a significant impact on the court case itself, but it did influence policy-making procedures and implementation concerning the reduction of GHG emissions.

The last aspect to look at is the notion of Good Governance. As with many public discussions, the elements of Good Governance are applicable to this case as well. Based on the characteristics of Good Governance, can it be said to have influenced the verdict of the case? The most noteworthy element that apply to this case are that governments should be: accountable, effective and efficient and should follow the rule of law. In this sense, the decision of the judge is quite a logical one, as the government of the Netherlands is not feeling accountable, and is not developing effective policy (based on the scientific evidence that a reduction of 20% compared to 1990 would be insufficient). This means that these two elements of Good Governance can be viewed below the norm by the judicial branch. The

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decision to appeal the case enhances this even more as one could argue that the government is morally incorrect by appealing the case based on these elements. Although the government is still following the rule of law, it can be questioned whether the appeal gives a negative image towards this element of Good Governance and to the broader public. In the end, the notion of Good Governance was developed to secure and protect human rights, which is a fundamental topic within the court case as Urgenda sued the government exactly for this reason. This does not mean however that Good Governance influenced the decisions of the judge and Urgenda directly, but rather that Good Governance includes well- known and respected elements in the Netherlands. In another country, such elements could be less evident or usual and thus decisions could be based on other values. It can therefore be said that the notion of Good Governance played indirectly a role on the court case, as its elements are already part of the structure and values of the government of the Netherlands.

The third hypothesis, which stated that the court case would be embedded in the notion of governance which would influence the decisions made with regard to the court case is mainly incorrect, but with some side notes. While the court case itself has a state- centric/government view, the policy cycle is still embedded in the discourse of governance. This could be the cause for the clash in reasoning as what is valued differs between the different perspectives. The court thus being based on a state-centric view could enhance the constitutional perspective, resulting in the verdict. Furthermore, some elements of good governance seemed to be lacking in the current GHG reduction policies, which could explain the decisions as well, but this does not mean that Good Governance itself influenced the involved actors. More research however would be required to support this claim.

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6

Conclusion

‘There is no harm in repeating a good thing’ – Plato

It has been analysed which aspects of the administrative structure of the Netherlands and related developments have had any influence on the court case of Urgenda against the Dutch government. This section will sum up the main argument of this thesis, answer the research question and discuss some recommendations and future prospects.