Protecting Whose Children?

In the fight against climate change, going to court has become one of the most powerful strategies of climate activists. Since the Urgenda v. the Netherlands ruling of 2015, many courts have obliged governments to do more to protect the climate. One year ago, the First Senate of the German Federal Constitutional Court (GFCC) has issued a landmark decision on the rights of future generations and their (legal) entitlement to solidarity. This blog post compares this decision to the 2018 ruling of the Colombian Supreme Court (CS) that was also concerned with the rights of future generations. I argue that while the idea of solidarity with people threatened by climate change is central to both judgments, the courts have taken very different approaches to whom this solidarity extends. While the German Court rather focusses on German nationals, the CS has issued a truly cosmopolitan decision finding solidarity not only between generations worldwide but even with nature itself.

A Remarkable Decision

The 2021 decision on the constitutionality of Germany’s Climate Protection Act (Klimaschutzgesetz, KSG) by the First Senate of the German Federal Constitutional Court is remarkable in several ways.

First, the Court found that the German Constitution entails an obligation of solidarity – although it does not use this word. A closer look at recent cases reveals that climate litigation is essentially about climate justice. Climate change hits hardest those who have contributed least to the problem: the populations of the Global South and future generations in both the Global North and South. Due to their age or nationality, they cannot influence legislative processes, and therefore, resort to the courts. Protecting the rights of the most vulnerable is an important driver of climate change litigation (CCL). The courts then must answer the question of how much solidarity the young (and even unborn) generations can expect and demand from us now living on this planet. Such a concept of climate solidarity is based on the idea that certain groups, especially those who caused climate change in the first place, have to make sacrifices in their way of life to lessen the harm other people are suffering from the adverse impacts of climate change. By declaring that the KSG was unconstitutional and violated the rights of future generations, the Court has given an explicit answer to this question.

Second, the Court drew on a number of rulings from other jurisdictions to buttress its decision. The fact that courts refer to one another demonstrates that judges closely observe how their colleagues navigate these new legal waters of climate litigation and how they circumvent procedural and argumentative pitfalls. For example, states and companies have consistently used the “drop in the ocean” argument, according to which an entity’s emissions were negligible in the overall picture to justify inadequate climate action. This argument was firmly rejected by the Dutch courts in Urgenda as all emissions, even tiny, contribute to the problem of global warming. Since then, the “drop in the ocean” logic has been refuted by courts, including the GFCC, which refers directly to the Dutch Supreme Court (para. 203). From this, it becomes clear, that a transnational dialogue on climate matters is taking place between courts that has begun to shape the contours of what has been called the emerging field of international climate change law.

At second glance, however, it becomes clear who does not belong to this “global community of courts”: the courts of the Global South. Among the decisions cited by the GFCC (Urgenda v the Netherlands, Juliana v the United States, Friends of the Irish Environment v. The Government of Ireland, and in New Zealand Thomson v. The Minister for Climate Change Issues), not one is from the Global South. Similarly, the 2017 ruling of the High Court of New Zealand compared several decisions from foreign jurisdictions, all of them from the Global North.

Environmental and Climate Litigation in the South

CCL is still emerging as a phenomenon in the South, but it is catching up: nearly 60 climate cases have been filed in 18 Global South jurisdictions. A recent study found that in Asia alone, CCL has increased by 185%. Moreover, courts in the Global South have a long-standing experience with environmental rights-based litigation (whereas earlier CCL approaches in the Global North tended to focus on technocratic and science-based approaches, as in Massachusetts v EPA). Relaxed standing rules and the possibility to file class actions made it easier for citizens to approach the courts on environmental matters.

In the Global South, courts generally play a greater role when governments fail to address social, economic, and ecological problems. Many constitutions, especially in Latin America, include environmental provisions such as the right to a healthy environment (in Ecuador even nature’s own rights). Where such rights do not exist, many apex courts have created them by interpreting the right to life to include ecological concerns (e.g., Supreme Court of Pakistan, Shehla Zia, 1994). This active approach of “transformative adjudication” is an important element in the jurisprudence of the Global South, enabling courts to react to new challenges such as climate change. Courts see themselves as actors for the protection of the environment qua constitutione and they are willing to try legal concepts that are inspired, for example, by indigenous law (including concepts such as rights for nature).

It is therefore surprising that the GFCC has completely ignored the rich jurisprudence from the Global South. Some of the decisions issued by courts in the South are refreshingly bold and address the problem of climate change in progressive and creative ways. One of those is the decision of the Colombian Supreme Court (Corte Suprema de Colombia, CS) in Future Generations v Colombia (2018, STC 4360-2018). The Court had to decide whether Colombia was violating children’s rights to a healthy environment, life, and health by not stopping the deforestation of the Amazon, leading to an increase in GHG emissions and their adult life being spend in a period in which the annual temperature of Colombia is expected to gradually increase by 1.6°-2,4°C. Thus, both the complaints to the GFCC and to the CS were filed by children and both had the concept of climate solidarity at their core. However, as will be shown below, the courts found quite different answers of to whom such solidarity extends.

Solidarity for Whom?

The order of the First Senate has already been discussed in many excellent blog posts and articles. This post will therefore only highlight some of the key arguments in relation to solidarity and climate justice and evaluate these against the Colombian SC’s ruling.

The German Constitution does not include a right to a healthy environment, but Article 20a protects the natural foundations of life. As a state objective, Article 20a is not justiciable. However, the Court argued that the provision, read in light of the Paris Agreement, requires the legislator to achieve climate neutrality by 2050, and therefore limits the scope of legislative (in)action. The KSG would have allowed almost all of Germany’s remaining climate budget to be spent by 2030 – almost 20 years before climate neutrality is achieved. By offloading the problem onto future generations who would have to see for themselves how to deal with the impacts of climate change, the KSG already today violates the plaintiffs’ fundamental rights as “intertemporal guarantees of freedom” (para. 183).

The GFCC also declared one of the complaints filed by plaintiffs from Nepal and Bangladesh admissible. However, it did not find a violation of the positive duty to protect for neither the German nor the foreign plaintiffs. The legislator, by implementing the KSG, has not t been completely inactive. However, it argued that it is “conceivable in principle” that such a duty could extend to the foreign plaintiffs (para. 174). Nevertheless, the GFCC made clear that the scope of such a duty to protect would be significantly smaller vis-à-vis the foreigners than vis-à-vis the German plaintiffs. It justified this unequal treatment with the difference of general climate protection as an objective law on the one hand and the rights to life and health as subjective fundamental rights, on the other. While climate protection requires mitigation, the protection of the rights to life and health can be ensured by a combination of mitigation and adaptation measures. To protect the fundamental rights of the claimants, Germany could improve the overall situation by constructing higher dams, investing more in the health system, or allowing fresh air to circle cities by using different ways of construction. Germany cannot apply these measures in other countries because of the principle of sovereignty (para. 176 ff).

However, the possibility of choosing adaptation over mitigation has a flipside for the rest of the world, especially the Global South. By allowing the state to compensate for poor mitigation efforts with more local adaptation measures, only local populations benefit, i.e. mainly German citizens. Mitigation can be seen as a global public good with far-away benefits in the long term while adaptation is a local private good that often only brings clear and immediate benefits for local citizens. Therefore, industrialised countries often choose adaptation over mitigation. They have the power of choice while climate-vulnerable countries such as Bangladesh and Nepal, which emit hardly any GHGs, depend on developed countries to reduce their emissions.

In this sense, the Colombian ruling offers a very different approach. Despite the Colombian government’s commitment to reach zero deforestation during the Paris Agreement negotiations, deforestation rates were 44 percent higher in 2016 compared to 2015. Different to Germany, Colombia explicitly recognizes a right to a healthy environment in its constitution (Article 79) and a corresponding duty for the government “to plan the handling and use of natural resources in order to guarantee their sustainable development, conservation, restoration, or replacement” (Article 80) as part of the so-called constitución ecológica.

The court demands that humans stop thinking selfishly of their own interests only. A shift from “private ethics”, focused on the individual good, to “public ethics” concerned with the implementation of moral values that seek to advance social justice, is necessary. Fundamental rights need to be understood as “derechos-deberes” (or “rights-duties”, para. 5.1). As such, the Constitution, on the one hand, recognises “the protection of the environment as a constitutional right, closely linked to life, health and physical, spiritual and cultural integrity; and on the other, as a duty, because it demands from the authorities and private individuals actions aimed at its protection and safeguarding.” The Supreme Court then defines that “the scope of protection of the fundamental rights is each person, but also the ‘other.’ The ‘fellow’ is otherness; its essence, the other people that inhabit the planet, also encompassing the other animal and plant species. But, in addition, it includes the subjects not yet born, who deserve to enjoy the same environmental conditions experienced by us” (para 5.2).

Thus, the court explicitly recognized that future generations have environmental rights and that these are based on the ethical duty of solidarity of the species and the intrinsic value of nature. Since all persons, born or not yet born, share the same natural resources, solidary between generations is indispensable to a point where solidarity and environmentalism “relate to becoming the same” (para. 5.3.). The “obligation of human solidarity with nature” then “constitutes the essential content of ‘the true values that daily facilitate life’, both in its present and future dimensions” (para. 5.3). The second fundament is the shift from an anthropocentric to an eco-centric approach. Nature has an intrinsic value of its own that is worth to be protected. Humans do not stand “outside” the environmental system but are part of it. Since the state was not even capable of stopping deforestation in national parks, the Court declared the Amazon a subject of rights (para.14) – remarkably, without being asked by the plaintiffs to do so.

The Amazon is the main environmental axis of the planet and one of the largest carbon sinks. It counts for one-quarter of all species existing in the world. Different to the GFCC’s decision, however, by protecting the “lung of the world”, the CS had not only Colombians in mind. Instead, “the principle of solidarity […] is determined by the duty and co-responsibility of the Colombian State to stop the causes of GHG emissions caused by the abrupt reduction of forests in the Amazon, being imperative to adopt immediate mitigation measures, protecting the right to environmental well-being, both for the plaintiffs and for the other people who inhabit and share the Amazon territory, not only nationally, but also abroad, along with all the inhabitants of the globe, including ecosystems and living beings” (para 11.3).

Concluding Remarks

Climate litigation is still a fairly recent phenomenon, and discourse among the courts can help to address legal difficulties. While it appears that scholars and courts in the Global South closely follow the North’s jurisprudence on climate issues (e.g. here), the North seems to ignore the South’s contributions.

The Global South will bear the brunt of dangerous climate change. But it has also presented progressive ideas to handle new challenges. In many ways, courts of the Global South have paved the way for today’s climate decisions in the Global North. As early as 1993, the Supreme Court of the Philippines ruled in the first successful decision on the rights of future generations worldwide that the right of future generations to a “balanced and healthful ecology” is so basic that it “need not even be written in the Constitution for [it is] assumed to exist from the inception of humankind” (Minors Oposa v Factoran, 224 SCRA 792). In the landmark case Juliana v the United States, Judge Aiken relied on the Filipino court’s reasoning to support her decision that an unwritten right to a stable climate exists in the U.S. constitution. A truly transnational dialogue among courts and scholars, thus, should not disregard the South’s contributions to transnational environmental and climate litigation. For while the GFCC’s solidarity with people threatened by climate change ends at Germany’s borders, the CS has issued a truly cosmopolitan decision that not only finds solidarity between generations worldwide but also between species and even with nature itself.