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Climate Justice for Future Generations (Order of the First Senate) (BVerfG)

Published online by Cambridge University Press:  09 December 2022

Stefan Kirchner
Stefan Kirchner*
Affiliation:
Stefan Kirchner is Research Professor of Arctic Law at the Arctic Centre of the University of Lapland in Rovaniemi, Finland, and a member of the bar in Frankfurt am Main, Germany. This text only reflects his private opinion.
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Extract

Climate change is an urgent global challenge, and human rights-based climate justice litigation is increasingly used in efforts to force executives and legislators to take action to limit the effects of anthropogenic climate change. These effects are already felt around the world—for example, in the form of droughts, rising sea levels, and more frequent extreme weather events. Among the most important pollutants that accelerate climate change is CO2. As a highly industrialised nation, Germany contributes about 2 percent of global CO2 emissions, although it only is home to around 1 percent of the Earth's population. In recent years, German companies have faced litigation over their contributions to human-made climate change. The decision by Germany's Federal Constitutional Court (Bundesverfassungsgericht) that is presented here is to be seen in the context of the current trend of human rights-based climate justice litigation in domestic and international courts. It can be considered the German counterpart to the landmark Urgenda case that was decided by the Dutch Supreme Court in 2019.

Type
International Legal Documents
Information
International Legal Materials , Volume 62 , Issue 2 , April 2023 , pp. 336 - 390
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of The American Society of International Law

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References

ENDNOTES

1 BVerfG, 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, and 1 BvR 288/20, order of Mar. 24, 2021, ¶ 30, https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/03/rs20210324_1bvr265618en.html [hereinafter Judgment].

2 HR Nederlanden (Supreme Court of the Netherlands) Dec. 20, 2019, ECLI:NL:2019:2006, Urgenda t Staat der Nederlanden (Neth.), 59 I.L.M. (2020) 811 [hereinafter Urgenda].

3 Grundgesetz [GG] [Basic Law] (May 23, 1949), Federal Gazette III, 100-1. An official, but not binding, translation is provided by the German federal government at https://www.gesetze-im-internet.de/englisch_gg [hereinafter Basic Law].

4 The Preamble to the original 1949 text of the Basic Law emphasized that the Basic Law was also created on behalf of those German citizens who were unable to participate in the democratic processes that led to its adoption as they lived in the Soviet zone of occupation.

5 Basic Law, art. 2(2).

6 Id. art. 20a.

7 Judgment, ¶ 112.

8 Bundes-Klimaschutzgesetz, Dec. 12, 2019, as modified on Aug. 18, 2021, Federal Gazette 2021 I 3905, https://www.gesetze-im-internet.de/ksg/BJNR251310019.html.

9 Urgenda, supra note 2.

10 Judgment, ¶ 30.

11 Id., headnote 2. a.

12 Id., headnote 2. b.

13 Id.

14 Id., headnote 4.

15 Id.

16 Id., headnote 5.

17 Id.

18 European Court of Human Rights, Duarte Agostinho v. Portugal, App. No. 39371/20, Legal Summary of Nov. 13, 2020, https://hudoc.echr.coe.int/eng/?i=001-206535.

19 Judgment, headnote 2. c.

20 Id., ¶ 201.

21 Paris Agreement, adopted Dec. 12, 2015, entered into force Nov. 4, 2016, 3156 U.N.T.S., https://treaties.un.org/doc/Treaties/2016/02/20160215%2006-03%20PM/Ch_XXVII-7-d.pdf.

22 Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights], adopted Nov. 4, 1950, entered into force Sept. 3, 1953, E.T.S. No. 5, as amended by Protocol 15 as of Aug. 1, 2021, https://rm.coe.int/1680a2353d.

23 Judgment, ¶ 203.

24 Id., ¶¶ 173 et seq.

25 Id. ¶ 178.

26 Id. 137.

27 W. Va. v. Envtl. Protection Agency, 597 U.S. ____ (2022) decision of June 30, 2022, https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf, p. 31.