Leonie Koessler and Renan Araújo: A Novel German Precedent for Protecting Future Generations

On May 1st 2021, three students and the charity Plan B brought the UK government to court for failing to take enough action to cut national carbon emissions—for the second time. They argued the government had disregarded their rights to life, family life and not be discriminated against, under Articles 2, 8 and 14 ECHR.

The lawsuit seems to embody a trend of climate change litigation against governments. Only a week ago, the Federal Constitutional Court of Germany ruled parts of the German Federal Climate Change Act as unconstitutional, “insofar as they lack sufficient specifications for further emission reductions from 2031 onwards”. The case was brought to court by young environmental activists, backed by Fridays for Future along with Greenpeace, Germany’s Friends of the Earth (BUND) and other NGOs. The decision, known as Klima-Beschluss, or Climate Decision, has received worldwide attention, as it signals that plaintiffs are actually capable of succeeding in their bold endeavours.

In this blog, we explore how the German Climate Decision is particularly distinctive in its potential to impact generations in hundreds of years to come, hoping to exemplify how this litigation trend can gradually shape the world’s long-term future.

The Decision

The German Constitution refers to future generations in Article 20a: “Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action (…)”. In the Climate Decision, the Federal Constitutional Court of Germany ruled that this provision is justiciable (para. 205), putting an end to a long debate among German legal scholars. This new position by the Court is likely to enable greater litigation based on Article 20a, which has been strengthened from its previous mostly symbolic status. Moreover, the Court provided a new interpretation of the fundamental right to life and physical integrity contained in Article 2(2), expanding it to future generations (para. 146). Up until now, German jurisprudence only granted the rights from Article 2(2) to existing people and nasciturus.

This development builds up the legal protection of future generations in Germany to an internationally vanguardist level, but also comes with limitations. The protection provided by Article 20a is still indirect, stemming from the context of environmental matters. In addition, individuals cannot claim state action solely on the basis of a breach of Article 20a, but only use it as one of the arguments in their case, i.e., it is not a subjective right. In other words, claims based on Article 20a have to be also based on the breach of other rights and cannot be made in other contexts that might affect future generations but are not related to the environment (e.g., regulation of synthetic biorisk or dual-use nuclear energy technology). In regard to Article 2(2), as German jurisprudence dictates that only currently affected people can claim subjective rights in court, it cannot be judicialized by future generations by their nature. This means that, even if plaintiffs are able to argue they represent the interests of future generations to any extent in German courts, they still have to describe how the alleged violation is affecting them in the present. Therefore, although litigation is likely to increase as a result of the Climate Decision, these roadblocks might limit plaintiffs’ success—or open the door for further legal development if there are sufficiently creative, compelling cases.

A Global Trend

With the Climate Decision, the Court not only follows a rising global trend of legal protection of future generations, but also sets a milestone in this respect. In an on-going research project at the Legal Priorities Project, we found that the term “future generations” or, equivalently, “coming generations” or “posterity” is mentioned by 70 constitutions in force worldwide, or almost one third of all constitutions. Most of them refer to future generations in the context of a state duty to protect the environment or to preserve the natural resources, as is the case for the German Article 20a. By interpreting the interests of future generations through a combination of an environmental provision and their right to life and physical integrity the German Federal Constitutional Court placed the legal protection of humans not yet born among the most progressive worldwide. Advances like these have rarely been seen, with the exception of the Hungarian 2011 Constitution, the Welsh 2015 Well-being of Future Generations Act, and the on-going parliamentary discussion for a nationwide future generations bill in the UK

Considering the relevance of future generations for their own sake is a trend that exemplifies the broader movement of humanity’s “expanding moral circle”. After the increased legal and political inclusion of women, LGBTQ, and ethnic minorities, the debate is now moving beyond humans in the present, such as toward animals and future generations. Such movement is perceived as worthy of endorsement by professionals in different areas, such as philosophers and economists (for an overview, see Winter et al., p. 21). Among legal scholars, according to a recent study (Martínez and Winter, 2021), the international majority endorse the caring for future generations, including those in the far future, defined as more than a hundred or even a thousand years from now, and are in favour of their countries giving them much stronger legal protection than is currently provided. 

Another compelling case for the protection of the interests of future generations is made through democratic theory, as done by the German Federal Constitutional Court. The Court argued that future generations are by their very nature neglected in today’s politics, a limitation that should be addressed: “[The] democratic political process is organised on a short-term basis over election periods; therefore, it systematically runs the risk of being more sluggish in responding to ecological concerns that need to be pursued over the long-term (…)” (para. 206). Upon recognizing this, the Court proceeded to state that “future generations, who are particularly affected, naturally have no voice of their own in the political decision-making process of today”. This acknowledgment might be the first step to a necessary, more robust institutional framework that takes into account the interests of future generations beyond the courts, as it refers to the very principles of democratic government.

In sum, the Federal Constitutional Court of Germany shows praiseworthy foresight by not only preserving the rights of current generations into the future, but also protecting the interests of future generations that have not yet been born—regardless of when exactly they will be born. The potential number of generations to come is vast, and the decisions we take now will influence the far future more than ever before. Researchers have argued that we live at a tipping point regarding existential risks, including dangers that range from climate change to biorisk and unaligned artificial intelligence systems. Since future generations cannot have a say in the democratic process by definition, the active counter-balancing part the German Federal Constitutional Court has played provides a relevant legal alternative to this issue and promises to be domestically groundbreaking. Internationally, the influence of the Climate Decision is yet to be noted—the UK seems to be up next in the dock.

Leonie Koessler is a law student at Humboldt-University Berlin and a Research Assistant at the Legal Priorities Project.

Renan Araújo is a Predoctoral Research Fellow at the Legal Priorities Project.

(Suggested citation: L. Koessler and R. Araújo , ‘A Novel German Precedent for Protecting Future Generations Debate’, U.K. Const. L. Blog (12th May 2021) (available at https://ukconstitutionallaw.org/))