Remedial Techniques to Address Non-Compliance by States in Public Interest Litigation

Courts are increasingly confronted with public interest litigation (PIL) cases against the State. Through these cases, civil society actors frequently address issues of broad public interest with the aim to create social, political and/or legal change generally based on human rights. These human rights obligate States to act in situations that involve complex structural problems, often with a political dimension, such as problems of climate change, overcrowded prisons and problems related to the shelter of refugees. Due to the extreme complexity and the political dimension of these problems, courts may increasingly be confronted with non-compliance by the state when issuing court orders. Courts may then face challenges in enforcing these orders, as there are limited legal options in the Dutch civil (procedural) system to address non-compliance by (a body of) the state. Through a discussion of recent judicial decisions concerning, among others, the conditions of asylum-seekers’ reception and treatment in the Netherlands, I show State’s non-compliance and the limits of the remedies to address this non-compliance. In a few recent decisions, the State was ordered to provide minimum standards of receptions and to shelter a maximum number of asylum seekers in Ter Apel. However, the State has not been able to implement the court orders, resulting in new legal action against the relevant State agency for the overcrowding of Ter Apel and the obtainment of a penalty payment of over 1 million euros, while asylum-seekers continuing to face poor reception conditions to this date. These developments raise the urgent question of what mechanisms courts should opt for when the State does not comply with its court orders. I address this question by drawing from relevant comparative literature and explore how courts in the United States have tackled non-compliance by States in public interest litigation. Rather than using a single court order with penalty payments, courts in the United States have issued structural injunctions, an ongoing remedy that entails continued monitoring by courts of the compliance of their orders. This remedy enables the court to retain jurisdiction, to develop – generally through dialogic interaction with the State and the plaintiff - the order over time and to respond to non-compliance by the State. I explore the potential of the structural injunction to address non-compliance in PIL cases that involve complex and polycentric issues like the asylum-seekers’ crisis in the Netherlands, see under which conditions it works and point to potential pitfalls. The problem of potential non-compliance in PIL cases has been recognized to some extent in legal scholarship – although some scholars still believe in the tradition of State compliance with court orders, despite evidence of the contrary. However, the main question raised above has not yet been addressed in (Dutch) legal scholarship. It is of utmost importance to explore remedial techniques to address non-compliance by States, as recent PIL cases show that non-compliance by the State is no longer only a theoretical reality.