The Climate Protection Order of the Federal Constitutional Court of Germany and the North-South Divide

Abstract

AbstractThe Federal Constitutional Court (FCC) in Germany has issued a landmark ruling with regard to climate change. It opens its jurisprudence for a new dimension of human rights: The intertemporal guarantee of freedom. It argues that the legislature has violated fundamental rights by failing to take sufficient precautionary measures today for the time after 2030. The emissions allowed in the Federal Climate Change Act until 2030 will nearly exhaust Germany’s remaining CO2 budget. After 2030, drastic legislative measures, which curtail nearly all activities that emit CO2, might be necessary. If emission reductions are delayed until 2030, the costs of climate protection will increase for future generations, and with it the risk that emission reductions will only be possible at the price of serious losses of freedom. Therefore, the legislature needs to act now and take the time after 2030 into consideration. The order might eventually influence climate change litigation in other areas of the world. The article will demonstrate the main arguments of the FCC order. The combat of climate change is an international task, which cannot be solved by Germany alone. The FCC takes this fact to some extent into account. It argues for international cooperation to combat climate change. Unfortunately, it does not fully evolve a jurisprudence which takes the core principle of common but differentiated responsibility (CBDR) seriously and addresses the questions of equity. The CBDR principle is one of the core principles which should solve the North-South divide and which should bring together the efforts of rich as well as poor countries to combat climate change. It is enshrined in the Paris Agreement. The FCC engages with this principle on the surface but misses the opportunity to truly and deeply engage.