Introduction

In its recent Order 1 BvR 2656/18, the Federal Constitutional Court urged Germany to immediately make efforts to achieve long-term greenhouse gas emission reduction goals in the 2019 Climate Change Act and the Climate Action Plan 2050 to implement the 2015 Paris Agreement effectively. The Court criticized and ordered amendments to the 2019 Climate Change Act. This Act sets up an insufficient and imprecise strategy for carbon neutrality by 2050. This ill-conceived strategy could lead to the violation of ‘virtually every freedom’ for both current and future generations, according to the Court. If the State fails to address climate change adequately, human rights such as the right to life, property, and physical integrity could also be violated.

This ruling has broad international law underpinnings. These include international contractual commitments and human rights. It could not be any other since climate change is a global problem. The Court noted that this is a worldwide issue.

“As a climate protection obligation, Article 20a (German Constitution) contains an international dimension that requires an obligation that invariably goes beyond the national laws available to each state and must be understood as a reference to the international level of action.” (para. 201)

In 26 paragraphs, the Court refers to the Paris Agreement, the only universal climate treaty to regulate the problem. It highlights its core elements: a. Limiting global temperature rise to 2 to 1.5 degrees Celsius above preindustrial levels; b. Fostering international cooperation towards this end; c. It is preventing climate change’s adverse effects on human rights. The piece will outline these three aspects, with direct references to key passages of the Court’s ruling. The Court did not make these aspects the core of its ruling. However, they provided a valuable benchmark for commentaries on national climate change laws. This is an essential source of customary international legal law.

Limiting global temperature rise to values between 2 and 1.5 degrees Celsius above preindustrial levels

This is the Paris Agreement’s primary purpose, as Article 2(1)(a) states. KSG, which is partially unconstitutional, is a form for the national implementation of the Paris Agreement’s goals. The Court reminded this right from the beginning.

“According to SS1 sentence 3 KSG, the base is […] The obligation under the Paris Agreement […], states that the global average temperature must be kept well below 2degC and, if feasible, 1.5degC compared to preindustrial levels to minimize the impact of global climate change 

Further, the Court argued that Article 20a (GG) on protecting natural foundations for life and animals encompasses the duty of protection from climate change in compliance with the Paris target, endowing thereby limits with a constitutional range.

“In fulfilling its concretization mandate and its concretization prerogative,” the legislature has determined the climate protection goal for Art. 20a GG through SS1 sentence 3 KSG to ensure that the global average temperature rises to below 2 degrees Celsius and, if feasible, to 1.5 degrees Celsius, as compared to preindustrial levels” (para. 208)

Notable is the Court’s strict interpretation of the norms allowance. This Court’s approach was based on the grim outlook for climate change and the necessity to achieve the Paris Agreement’s goals as soon as possible. The Court recommended that Germany try to significantly exceed the minimum obligation, preferably by reaching the 1.5deg Celsius threshold. The Court noted that

“The Secretariat to the United Nations Framework Convention on Climate Change concluded that the global greenhouse gas emissions expected by 2030 are incompatible with any reductions paths that would limit global temperature rise to 1.5°C […]. Instead, the emissions expected coincided with paths that predicted a temperature rise of 3°C by 2100” (para. 10)

“There are signs that according to the Climate Change Act’s reduction path until 2030, an overall decrease that could correspond to a German contribution towards limiting global warming at 1.5 degrees Celsius would not be possible. […] Compliance with the reduction contribution equal to a target of 2 degrees Celsius would be easier. This was, however not enough to meet the Paris target of “well under 2 degrees Celsius” as stated in SS1 sentence 3 KSG’. (para. 166)

“In the meantime, it has given up on its stated efforts in specifying Article 20a of the Basic Law for limiting the temperature rise to 1.5 degrees Celsius as far as practicable (SS 1 sentence 3 KSG (para. 242)

Therefore, it is apparent that the German Court paid attention to the Paris Agreement’s paramount goal, first declaring the thresholds a Constitution principle and then urging Germany not to stop at the top. It would be wrong to place the Court’s Order in opposition to its prior Order, which stated that the “central norms of protecting the environment” were part of Jus cogens. This means that they are the most important and should be protected by all means. This trend is evident in climate litigations all over the globe, where courts (the Supreme Court of the Netherlands ruling) heavily rely upon the Paris Agreement’s goals and the effects of climate change on constitutionally protected values.

Promoting international cooperation to fulfill the Paris Agreement’s assumptions

Many clauses within the Paris Agreement are cooperative and sometimes mandatory. These clauses are evident in them Article 4(2), which states that all Parties must prepare, communicate, and maintain subsequent Nationally Determined Contributions. Article 5(1) stipulates that Parties should coordinate their efforts to enhance adaptation action. Article 7(7) also says that Parties should increase their cooperation in coordinating mitigation and adaptation. Article 9(1) provides that developed country Parties will provide financial resources to help developing country Parties. Article 10(1) states that the Parties share an overall long-term view on the importance and necessity of technology development and transfer. The German Court mentioned the need for international cooperation in different spheres. Para. 179), or may transfer additional mandatory emission reduction benefits to other signatories of the Paris Agreement once a reliable credit program is established (para. 226). The Court did not refer to the Paris Agreement’s cooperative framework. Instead, it interpreted Article 20a GG as a comprehensive international cooperation obligation with a clear goal-oriented stance on climate change. It demanded that Germany implement and follow it in addition to reaching an agreement. Germany must set a good example for other states and follow the low standards of others, even if they do so; Germany is also required to search for or create a more sustainable cooperation network in case the assumptions in Paris Agreements prove inadequate. The Court observed,

“The international dimension of Art. 20a GG is not a climate protection requirement. It includes finding a solution for the climate problem at a global level and reaching an accord for it. The constitutional climate protection requirement requires the implementation of agreed solutions. (para. 201)

“The State cannot evade its responsibility by referring greenhouse gas emissions to other states […] In contrast, the specific dependence on the international community implies the constitutional necessity of taking as many internationally agreed climate protection steps as possible. Because the State cannot incentivize other countries to do so because it is limited in its ability to implement the climate protection requirements imposed by Article 20a of International Cooperation’s Basic Law. 203).

“If the temperature target set in Article 2(1)(a) of the PA is not sufficient to ensure adequate climate protection, Article 20a of Basic Law should be updated to reflect this fact; in particular, it should be made more difficult to reach binding agreements.” 212)

The Court chose to pursue a deep international cooperation perspective beyond the Paris Agreement framework, as evident in the ruling’s text. While the Paris Agreement is undoubtedly a foundation and remains in effect for Germany, other options exist.

An effort to reduce the adverse effects of climate change on rights and freedoms

The effect of climate change on rights and freedoms needs to be verbis outlined in the Paris Agreement’s texts. It lies at the crux and can be easily deduced from several preambular phrases like the response to the urgent threat of global warming, the ‘particular vulnerability of food production systems to adverse effects of climate changing’ or the ‘acknowledging the fact that climate change is a concern for all of humanity.’ Article 8 of the Paris Agreement also mentions “extreme weather events” and “slow onset events” as possible consequences of global warming. The Court’s ruling is extensive in its discussion of the impacts of climate change on the environment. It alludes to extreme climate events such as heatwaves, forest fires, cyclones, heavy rains, and floods. The Court mentions the possibility of violating human rights by a state that does not adequately address climate protection.

“The complainants can partly assert that their fundamental rights to life and property (Article 2, Paragraph 2 of the Basic Law), and some of them in Article 14, Paragraph 1 (Article 14 of the Basic Law), have been violated (see Below II 1, CI), as the Climate Change Act may not have taken sufficient measures to limit greenhouse gas emissions. 90)

The effects of climate change will be felt most by future generations. Therefore, the German Court supported sustainable development and intergenerational equality as possible solutions to climate change. This is currently a preferred view. The Court also acknowledged that the Paris Agreement’s preambular clause states, ‘ Parties should respect and promote… intergenerational equity when taking action to combat climate change’.

”Art. “Art. 229)

This presumption that environmental law norms may precede other laws is created (para. 198). The Court also concluded that the future freedom of future generations would be in danger if Germany failed to create a feasible plan for reducing emissions. This is following the Paris Agreement’s preambular that states must respect, promote and consider their human rights obligations when taking action on climate change. The Court noted that

“Virtually all freedoms are potentially compromised, since almost all aspects of human life today are linked to the emission of greenhouse gasses (above marginal number. 37), and could be endangered by severe restrictions after 2030. 117)

“It follows from proportionality that one generation cannot be allowed to consume large amounts of CO2 budget with a relatively mild reduction burden if at the same moment, it leaves the following generations facing a radical reduction burden. This is described by the complainants to be an “emergency stop”, and they would lose their freedom. 192)

The Court’s right-based stance can also be criticised for its depleted approach. For example, it is regrettable that the Court rejected claimants’ assumption of the right to a healthy climate. It also should have taken the opportunity to explain the exitance of such rights in international law to each individual, despite referring to section B.II.5 as the ‘Basic right of a climate and an environmentally friendly way to live.’ Although the phrase suggests the existence of such rights (either in Germany’s legal system or internationally), the Court’s inability to address this issue further leaves scholars in limbo between opposing epistemological camps. The Court didn’t decide to extend international responsibility for human rights violations in climate change issues outside of Germany’s borders. Instead, it blamed its inability to manage adaptation or mitigation measures in certain countries. Para. 178). The Court could also have clarified certain human rights affected by climate change. This is in line with the practice of the UN Special Rapporteur, which would make certain parts of this Order more convincing and clearer. Para. 90), which focuses primarily on the restriction in freedoms that will not result from climate change per-se but from an accelerated consumption CO2 budget up to 2030 (para. 186) and the need to reduce emissions faster after 2030 (para. 142). Both categories of threatened freedoms and rights have a similar weight.

Conclusion

Even though the ruling was issued by a national body, and criticised for its flaws, it has received great praise from international law scholars. Keep in mind that courts can also function within certain legal avenues. Every judgment that contributes to a positive global cause such as global warming is worthy of praise (see similar verdicts in France and Ireland) Although the ruling 1 BvR2656/18 is about the constitutionality and operation of the 2019 Climate Change Act, it serves as a timely reminder to the German government of its obligations under Article 56526115 of the Paris Agreement. The Court examined a global issue and exhorted Germany to fulfill its international climate change commitments, many of which are enshrined within the Paris Agreement. It is clear that the Paris Agreement not only forms the basis of the disputed Climate Change Act and other German climate plans and agendas, but that its main provisions will soon be given a binding constitutional character. The ruling also states that States must cooperate in solving the climate change problem. They cannot hinder it by imposing national acts or negligence on other States. Germany is a rich and developed country with an added incentive and obligation to lead the climate offensive that other countries should follow. The Court also acknowledged the importance of fundamental rights and freedoms in the climate change crisis. It said that inappropriate national climate change strategies could lead to similar violations. The Court emphasized the universality of climate change effects and adaptation strategies. This means that all countries will face the same fate if they fail to take joint action to reduce emissions or choose ineffective adaptatio