Volume 17, Issue 1

Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.

Our Western-style constitutional systems are not only built on 16th to 18th century social contract theory, but also mainly on a liberal understanding of individual human rights. They are an element of constitutions and international treaties and are increasingly used as a basis for claims of individuals against states for more action to tackle the climate change crisis. However, a human right to a sustainable climate meets plenty of challenges if understood as a classic human right. The question is whether human rights offer a solution to legal questions of the climate crisis by empowering people to demand specific measures from states. The authors demonstrate how the search for solutions has altered the understanding of human rights globally and will continue to do so. It sheds a light on whether the premises on the relationship between state and individual and burdens on individual freedom can still be answered by paradigms from social contract theories and whether the social contract needs to be enlarged by including non-human actors (like eco-systems) or future generations.

Silence, a political category in democratic theory, has proven starkly unjust toward future generations, who are practically voiceless in intergovernmental fora, a notable feature of the international climate regime. This article first explores the status of future generations’ fight for the climate by articulating the solidarity implications of climate change as a common concern of humankind. Second, the analysis offers a brief overview of the recent constitutionalization trend concerning future generations’ interests in the environment as a meaningful counterweight to the politics of silence. Third, the article discusses climate change litigation as a catalyst of the constitutionalization trend and a proxy for political participation. Throughout the analysis, the article turns to the thought of political theorist Hannah Arendt to illustrate the potential of legally protecting future generations’ role in fighting for a stable climate through post-sovereign constitutionalism. By way of a case study, the analysis argues that in Neubauer et al v Germany Germany’s Federal Constitutional Court offered practical ways to offset the politics of silence and increase the political space for future freedoms. Conclusively, the article offers a snapshot of open and fluid post-sovereign constitutional institutions and participative practices that could advance freedoms for future generations.

In many legal systems, methods of interpretation are unwritten customary norms. As such, they depend on consistent practice of legal officials and their acceptance of those methods as binding. Among them, the most important are judges. The EU legal system is characterised by a two-tier judiciary, composed of the Court of Justice and national courts. The Court of Justice has the final word regarding the development of the methods of interpretation of EU law. National courts are required to accept and apply those methods when they interpret EU law on their own. This is essential for ensuring uniformity and effectiveness of EU law. The Court of Justice therefore needs to develop the methods of interpretation of EU law through a dialogue with national courts. How any method of interpretation will be employed in a particular case depends on moral and political values that inform their use. The inherent characteristic of the EU legal order is value pluralism. This means that although the same constitutional values are likely to be formally recognised in the EU and its Member States, their conceptions may nonetheless vary. To have uniform EU law that produces same effects in all Member States, national courts have to interpret EU law by using particular methods of interpretation informed by EU conceptions of values that are associated with those methods. So, these EU values likewise have to be shared by national courts whenever they interpret EU law. What these EU values are is determined not only by the Court of Justice in a dialogue with national courts, but with other institutional actors, supranational and national, in the EU legal order.