You Cannot Have the Cake and Eat It – How to Reconcile Liberal Fundamental Rights with Answers to the Climate Crisis

3.1 Transnational, Diffuse, Collective, and Future Risks

The common individual approach is challenged by the very nature of risks attributed to climate change. As the often-cited example of the Peruvian farmer, who claimed damages from the German energy provider RWE,^[37] illustrates, his rights are endangered by transnational effects, that cannot be easily traced back to one distinct ‘polluter’. The case shows the multiple difficulties we are confronted with when trying to tackle the climate crisis by individual human rights: cause and effect are rarely limited to one state, so we need to find a justification for the extraterritorial effectiveness of fundamental rights or render international human rights law more enforceable. The direct causal link between the contribution of RWE to the rise of CO₂ in the atmosphere and the flooding of his village remains unclear – it is a diffuse risk and only a collectively attributable contribution. Different from the situation of the polluting coal power plant and the neighbour, there is not one polluter and one aggrieved party, but everybody contributes and everybody is aggrieved, however, globally speaking, not to the same amount.^[38] Even if the general contribution of a company to global warming is considered sufficient in tort or private infringement proceedings like Shell^[39] or RWE, the underlying problem of individualistic human rights and the safeguard thereof by the state remains, especially if a human rights obligation is constructed via a ‘duty of care’ in tort cases,^[40] as it might lead to escaping the necessary balancing. Finally, a solely human rights perspective does not even include the ecosystem, animals, plants or the atmosphere as protected goods – as long as a single person cannot establish a direct link to their individual human right to life, health or a healthy environment.

However, in some legal systems, there have been important advances in the development of actions in which individuals can represent diffuse or collective interests. This is the case in several countries in Latin America, where court rulings decide on the environmental conditions of thousands and even millions of people. An emblematic judicial decision is the ‘Riachuelo’.^[41] This is an amparo action – a constitutional guarantee – that was presented to the Supreme Court by a small group of people, but whose decision affects around 5 million inhabitants of the Matanza-Riachuelo basin. This is one of the most polluted river basins in the world and, after several years of proceedings, a clean-up plan had to be implemented by the state at different levels (national state, province of Buenos Aires and city of Buenos Aires due to the interjurisdictionality of the basin). The case is relevant because the state of contamination of the area dates back to around two centuries ago due to a large number of companies that were set up in different periods, which makes it difficult to establish causal links not only to the past but also to prevent damage in the future. This last aspect is an important point in environmental conflicts. Indeed, some damages do not occur today, or cannot be measured and attributed to a specific individual, not even to a specific generation. The precautionary principle is a long-established instrument in both international and national legislation^[42] to tackle such unknown or future risks – however, classic human rights bear no answer on how to reconcile the freedom of those living today with the freedom of those possibly living tomorrow. The German Constitutional Court argues with the risk of having to endure stricter measures in the future, if no immediate action is taken now^[43] – yet, this only blurs the fact that one can hardly argue that this is an infringement of an individual right of a person living here and today.

Finally, a new social contract theory would have to find a solution how a collective good – a planet capable of sustaining human life, to use the words of Judge Aiken in the climate litigation Juliana against the US^[44] – can be protected by using individual rights. And if these rights include a right to a future – is this the individual future of every human being or the collective future of humankind on this planet?

3.2 Constitutionalism and Rule of Law

Protecting the environment means to protect a collective good – yet, as stated above, social contract theory is directed at the protection of individual rights. It is difficult (albeit not impossible) to argue why a collective interest must be prioritised and therefore justifies restrictions of individual freedom, especially if it cannot be directly linked to the exercise of individual rights. The exigence of an individual freedom being exclusively limited by another individual freedom, dating back to Art 4 DDHC and classical social contract theory, requires a case-by-case balancing process between those freedoms. In its original form, it therefore defies the idea that mitigation of or adaptation measures to climate change can be generally prioritised to individual freedom and social equality by law.^[45]

In our opinion, this balancing process is essential and should not be readily abandoned by demanding a new social contract or ecological fundamental rights.^[46] Widening the scope of a duty of protection for individual human rights by including collective or super-individual interests and obliging the state to take concrete measures means that the state can and must restrict individual freedom. It must, however, tread carefully, in order not to shake the system of justification of restrictions by proportional measures. Altruistic use of individual human rights for the protection of the climate does not fulfil the basic requirement that an individual only has to endure restrictions that guarantee the individual freedom of another human being.

If this conundrum of protection of a common good through individual rights can be solved by introducing a legally binding ‘fundamental duty’ to care for the environment, as some constitutions like the Portuguese already do, remains questionable. This would allow the state to justify limitations on fundamental rights in order to conserve sound climate conditions and would completely shift the underlying reasoning for the restriction of fundamental rights: where it used to be the requirement to tolerate a restriction in order to enable the freedom of another human being, it would now rather be tolerating a restriction to safeguard the foundations of life and therefore the basal requirements to enjoy freedom in the future.^[47] This is still an anthropocentric and not an ecocentric take on the guarantee of freedom – but one that would allow us to reconcile traditional human rights theory with demands of stronger ecological rights as it goes back to the original proposition that a free and equal community requires responsibility of each person to respect each other and to respect the basic foundations of life in this community.^[48] Yet, such constitutional duties, which are understood to have more than just appellative character or to be more than just possible limitations to fundamental rights as required by the common good, must be seen sceptically.^[49]

3.3 Human Rights and Access to Justice

Most national and international remedies against infringements of human rights demand that the claimant is a victim of a direct, individual and present violation of his or her human rights. In order to gain access to justice and get courts to review possible violations of human rights due to insufficient state action, one needs a way for altruistic complaints or class actions. They can empower the individual to claim transnational, diffuse or future risks to collective interests or rights – however, up to now, even if such class actions exist, like in the Urgenda and the Shell case under Book 3 Section 305a of the Dutch Civil Code (class actions of public interest groups), there are still only few cases where courts have accepted claims on the behalf of future generations or people living outside the scope of the respective jurisdiction or of nature as such.^[50] The Urgenda decision rests on a duty of the state to protect the persons living in The Netherlands today: ‘it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life. […] it follows […] that the State has a duty to protect against this real threat’.^[51] Also, the German Federal Constitutional Court – albeit confirming an objective duty of the state to take the rights of future generations into consideration – argued with infringements of fundamental rights of those living today, if lax measures now inevitably had as a consequence very strict measures in the nearer future in order to meet the Paris Agreement Goals.^[52] A change might be observed in the Dutch Shell decision, where the court found the class action admissible also on behalf of the interests of current and future generations of Dutch residents (but not of the world’s population).^[53]

Even if access to justice is granted, it still remains debatable whether human rights can be used before courts in order to enforce specific state measures. Whereas, in some jurisdictions, an enforceable duty to protect individual rights is understood as an obligation of the state to act, this means regularly only that the democratically legitimised organ, the parliament, is to pass a law to battle climate change. The specific measures still have to be determined by the democratically elected parliament as representative of the volonté générale and as the only state organ legitimized to decide on limitations of fundamental rights by passing laws – this holds even true for those court decisions, where existent laws or actions were deemed insufficient: in Urgenda as well as in the German Klimaschutzgesetz-case the courts only set goals to be reached and demanded to take (more) action. However, in some regions, some novel ideas are emerging, such as, for example, the creation of guardians of certain ecosystems^[54] or of intergenerational agreements.^[55]

4.1 Altruistic and Collective Ways of Enforcement

There are some innovative ways to strengthen the administrative and judicial enforcement. Even though it is difficult to establish the results obtained, given the structural difficulty of the problems decided by different tribunals, it is also true that these ideas attempt to improve one of the main challenges for the enforcement of environmental sentences: their implementation. Again, a (human) rights approach could offer stronger enforcement mechanisms, as it renders violations of statutory duties by the state actionable and gives control to people.^[56] However, this can only work, if there exist possibilities to collectively or altruistically claim violations of rights – as often either those affected cannot do so themselves or a causal link to a distinct human rights violation (attributable to a specific polluter) cannot be established. Furthermore, it is claimed that Western-style democracies are directed at the procedural enforcement of individual rights (backed up by the individual human rights in the respective constitutions), which makes collective or ecological rights a strange concept. However, in Urgenda it was argued that action can be brought forward on behalf of the current generation of Dutch nationals.^[57] How to include collective rights and how to render them bearer of rights as a group is a difficult problem to solve, yet, it might become easier if the collective character of climate protection is considered, as it is already part of many governmental obligations, which demand priority over individual rights in a balancing process.^[58]

In relation to the jurisdiction scope, further attempts have taken place, for example in Ecuador considering the rights of nature recognition. It was a judicial claim about the great oil spill that the oil company British Petroleum caused on the shores of the Gulf of Mexico in the United States in 2010.^[59] An articulation of judicial claims was submitted due to the damages generated by the explosion. In 2015 the British Petroleum oil company agreed to plead guilty to 14 criminal charges and pay $4.5 billion in restitution to the U.S. government: 11 workers died and the sea was polluted. In parallel, on November 26, 2011 a group of people from different origins and nationalities submitted a judicial claim before the Ecuador Court of Justice based on an innovative argument: there being a Constitution that recognized the rights of nature and nature not knowing boundaries between States.^[60] Thus the emphasis was on the protection of nature’s rights, and the claim did not have economic content. This judicial presentation could be observed as a strategic use of law to put these innovative perspectives into discussion and to make visible the lack of an international protection system for Mother Earth’s rights.

As regards future generations, some cases are emerging such as the aforementioned Colombian Supreme Court 2018 decision^[61] and a previous case related to deforestation in the Philippines. In the latter, a group of children, also representing future generations and in turn represented by their parents, initiated legal action to stop the increasing deforestation in the country. The first paragraph of the Supreme Court decision affirms: ‘this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of “inter-generational responsibility” and “inter-generational justice”’.^[62] In the case it was argued in favour of the protection of the Philippine rainforest: ‘The minors further assert that they “represent their generation as well as generations yet unborn”’.^[63]

As far as standing is concerned, about 30 constitutions contain provisions that allow individuals to argue environmental rights before the (constitutional) courts^[64] – even though fundamental rights to a healthy environment are often not considered to grant standing or do not exceed individual guarantees of health and life.^[65] Additionally to the ‘amparo’ already mentioned above, ideas like ‘public interest litigation’ and class actions seem to gather ground^[66] and intensify the demands of Art 9 Aarhus Convention in Europe and of Art 8 of the Escazu Agreement in Latin America to make ecological, collective and diffuse interests actionable.^[67] In the Dutch Shell case the District Court found that the general class action in Book 3 sec 305 Dutch Civil Code could be used, as ‘the common interest of preventing dangerous climate change by reducing CO2 emissions can be protected in a class action’.^[68] This can be seen as a procedural dimension of a human right to a healthy environment that acknowledges that access to justice does not need to depend on a violation of an individual (human) right.

This is the spirit of several Latin American constitutions that allow individuals, non-governmental organisations or ombudsmen to take legal actions in defence of the environment. Although they differ from country to country, they have in common the possibility of litigation in situations in which the environment is affected, whether or not this causes damage to people’s health or patrimony. To mention some examples of rules of this nature, we can cite the action of amparo in the Argentinean Constitution (art 43), which provides standing for the affected party, the ombudsman and organisations dedicated to the protection of the environment, consumers etc. In the case of Ecuador, the action of protection (art 88) is even broader: it incorporates any community, people, nationality or collective as having standing to act.

4.2 Focus on Inter- and Intragenerational Equity and Inclusion of Animal Populations, Ecosystems and Nature into a Social Contract

Recognizing nature as a subject in a constitution or in a national or local law implies a big basic question: who were and who are the subjects that subscribe to our social contract? The experiences that stem from the Ecuadorian constitutional reform but are gaining ground in other parts of the world raise a central legal question (who can be subjects for the law?). At the same time, they can be seen as an emergent of a deeper contemporary process, though. They might even be considered an indicator of transformation in societal thinking^[69] or the visibilization of worldviews marginalised from the spaces and discussions that structured modern societies. Dozens of anthropological contributions allow us to identify societies that have pacts and agreements with nature or its elements.

From this perspective, some Latin American legal innovations can be observed. The constitutional and legal proposals in Ecuador and Bolivia represent the first cases where nature is explicitly recognized as a legal entity: as Pachamama in the Constitution of Ecuador (2008), and as Madre Tierra in the Mother Earth Rights Act (2010) and the Framework Act on Mother Earth and Holistic Development to Live Well (2012) in Bolivia. The Ecuadorian Constitution affirms that ‘Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’ (art 71). For its part, the Bolivian legislation, in Mother Earth Rights Act (2010), defines a list of nature’s rights: to life, to diversity of life, to water, to clean air, to balance, to restoration, to live free of pollution (art 7). Furthermore, this law directly relates the problem of climate change to this extension of rights: it is an obligation of the Plurinational State of Bolivia to develop policies to defend Mother Earth from the structural causes of global climate change (art 8). In both countries these juridical innovations included the purpose to reach sumak kawsay (good living) or suma qamaña (live well) as alternatives to projects of global capitalism. These ideas include socio-political, cultural and economic aspects as well as ecological ones.^[70] The recognition of nature’s rights is part of the proposition to live in harmony with nature and achieve a good way of living and the climate change issue is also present not only in the constitution and legislation but also in the National Plans on environmental issues.

Thus, processes that are inspired by this type of viewpoint, such as the cases of Ecuador and Bolivia, also find societies that are more permeable to this type of regulations. If the future of the planet is at stake, modern law seems powerless to deal with the problem, it is easier to think of certain openings. Recognizing nature as a subject of rights makes it possible to review the foundations on which modern law was built and, in turn, to democratise the content of contemporary environmental law.

Other judicial decisions are opening up to these new perspectives, especially climate change litigation that involves not only future generations but also nature.^[71] In particular, in Latin America, there is a process of articulation between climate change litigation, future generations rights and the recognition of the rights of nature.^[72] Such is the case of the Colombian Amazon, in which the Supreme Court not only considered the effects of deforestation on the future of today’s generations and generations to come, but also recognised the Amazon as a subject of rights.^[73] One of the mechanisms established by the ruling is the elaboration of an intergenerational agreement between the affected parties and the State to decide on one of the main causes of emissions in the country: deforestation in the Amazon.

This case of climate litigation in Colombia led by a group of children and adolescents illustrates some ideas. First of all, it shows the seriousness of the climate issue not only for the future but also for current generations in the years to come. The intragenerational is directly linked to the intergenerational. But, in addition, the idea of an intergenerational agreement is also associated with the recognition of the Amazon as a subject of rights. This case puts on the table the type of pact that we could think of if we consider that nature is part of the contract and not an object to exploit or to take care of, as it has been until now.

On a more intragenerational note, concerning the extraterritorial application of constitutional rights and therefore moving towards a more global social contract, the German Federal Constitutional Court accepted the claims by claimants inter alia from Bangladesh that due to insufficient measures by the German government they might be affected in their right to health and should therefore have standing.^[74] However, it did not go so far as to oblige Germany to take effective mitigation measures, as the other states also have to take effective measures to protect their inhabitants – the obligation of Germany does therefore not go beyond its international responsibility and the constitutional obligation to reduce greenhouse gas emissions according to the Paris Agreement.^[75]

4.3 A Move away from an Anthropocentric and Individual Approach of Infringements and Justifications

For many years, human rights have enabled courts to control the state whether it respects freedom when applying law. Yet, control by human rights, so far, was mainly possible if the violation of statutory law meant at the same time an infringement of an individual right of a specific right-holder. As stated above, the climate crisis (and the related loss in biodiversity and ecosystems) forces legal systems to find solutions to include future generations, nature as such as well as those humans affected by extraterritorial acts that cannot be causally attributed to a specific ‘polluting’ entity, like in the Llyua Case.^[76]

One way to do so is the already mentioned granting of legal personality or some forms of guardianship for nature or future generations. This results in empowering them as legal subjects and thus introducing them in the existing structures of access to justice and participation in administrative decision-making in their own right.^[77] There exist two ways to realise this: either, following a moderate ecocentric approach, granting rights to non-human beings or nature itself, or broadening the scope of application and introducing diffuse, supraindividual or collective human rights guarantees in order to render infringements of the foundations of life actionable without having to resort to a specific and individual right of a specific person.^[78] For example, the Brazilian legal order knows “diffuse infringements” in cases of ecological detriments, therefore allowing court actions where the aggrieved party does not have to prove a causal link between polluter and damage and where a claim can be brought forward in order to argue a collective right to a healthy environment.^[79] Also, several African and Latin American states have resorted to collective ownership of natural resources (mainly by indigenous or traditional groups), in order to defend collective goods from exploitation by individuals.^[80] This shift in conceptions not only gives access to courts, but also introduces new issues into administrative decision-making^[81] and the necessary balancing of interest.

Simultaneously, it could be a way to solve the problem that the rights of persons today cannot be restricted by the interests of future generations – unless they become bearers of rights themselves. The same model is increasingly applied by granting rights to non-human beings and nature. Christopher Stone has already argued in 1972 that Western legal orders have attributed legal personhood not only to humans (which, in the time of Hobbes and Rousseau did not necessarily include women or slaves), but also to companies and other entities.^[82] This does also not contravene the guarantee of human dignity that underlies many constitutions and human rights charters (even if it not explicitly spelled out as a fundamental right, like in Art 1 (1) GG) – establishing non-human rights, even on a constitutional level, does not mean to treat humans as objects.^[83] This is even more true, if healthy climate conditions are accepted as a collective good of humankind that can be claimed by each and every one without having to prove a present and individual infringement.

One of the current experiences in Latin America is the recognition of the Atrato River as a subject of rights. This was a result of an ecocentric interpretation of the Colombian legal system where the rights of nature are not explicitly recognized. The Atrato river is part of the Chocó region in Colombia where the inhabitants are mostly afro descendants (87 percent of the inhabitants), indigenous communities (10 percent of the inhabitants) and farmers. They were pleaded by the Study Center for Social Justice, Tierra Digna, as representative of the community councils of the region. They were concerned about the river pollution due to illegal mining, which entailed serious consequences for the health and livelihoods of the residents. Thus, they filed a legal action in defense of both the inhabitants and the environment. In an innovative way, the Constitutional Court introduced the concept of biocultural rights,^[84] recognized that the Atrato River is a subject of rights and appoints a guardian to represent the river: the guardians of the Atrato River.^[85] It is a structure composed of a diversity of social actors and institutions. The national government was ordered to exercise the guardianship and legal representation of the rights of the river, through the institution designated by the President, in conjunction with the ethnic communities that inhabit the Atrato river basin in Chocó region. In parallel, and in order to ensure the recovery of the river, the Court ordered that these legal representatives of the river have an advisory team, formed by the Humboldt Foundation and the World Wildlife Fund Colombia. Thus, the river is both a subject of rights and an entity that needs to be endowed with representation through the figure of its guardians. Both aspects become a reference in the regional legal field: other judges are inspired by this ruling to recognize various Colombian ecosystems as subjects of rights and create guardians involved in the execution of the sentence.^[86]