For some time, Germany – legally and politically – is well on the way to become a sustainable state. Among other things, this is also a constitutional demand. The constitutional foundation for this was a change – called amendment – to article 20a of Germany’s constitution.
The addition to Germany’s constitution in 1994 established “environmental and animal protection as a fundamental state objective.” Germans call this Staatsziel (the goal of the state). This is akin to something like the raison d’être or the very purpose of the existence of the German state. The addition states that Germany’s state must be:
mindful 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, all within the framework of the constitutional order.
On this, Germany’s constitution and its relationship to global warming have two perspectives. For one, the question remains of the extent to which Germany’s constitution issues explicit demands for sustainability. In other words, Germany’s constitution can be seen as an engine for the transformation towards sustainability.
On the other hand, Germany’s constitution itself proves grounds for a sustainable future of Germany. The first question on the constitutional research for sustainability takes up – by far – the largest space in contemporary Germany.
In the original version of Germany’s constitution of the year 1949, the concept of sustainability is at no point explicitly mentioned. However, in individual state constitutions, sustainability can be found explicitly:
Hessen: For example, article 26c of the Hessian state constitution requires the state, municipalities and associations of municipalities to take into account the principle of sustainability in order to safeguard the interests of future generations.
Schleswig-Holstein: Also, in the preamble to the constitution of the north German state of Schleswig-Holstein, the idea of sustainability has been incorporated by outlining: to seek to protect, through sustained the interests of present and future generations.
Beyond the fact that Germany’s constitution links environmental demands to future generations, many state constitutions of Germany’s 16 states also define duties of public authorities – and partly also those of individuals – to protect the natural foundations of life for future generations.
Despite all this, Germany still lags behind many constitutions of other countries as well as the law of the European Union. Back in Germany, there are scattered implications and starting points for aspects of sustainability in regard to three dimensions.
Democracy: Unmistakably the sustainability demand of article 20a of Germany’s constitution and adjacent regulations. Less obviously is that sustainability is understood as being part of the principle of democracy and peace that are enshrined in Germany’s constitution.
Future: The second perspective relates to the sustainability found in Germany’s constitution as such. This demands a certain openness and resilience to future challenges and changes. For example, this is about what precautions have been taken by the original “mothers and fathers” of Germany’s constitution for preservation and stability of the constitution and of Germany’s democracy.
The System: In the center are instruments for the defense of Germany’s democracy for the protection of what Germans call FDGO – the free democratic basic order. This is what became known as “the eternity clause” – article 79, Para. 3 of the constitution. It can never be changed.
Germany’s constitution issues a strong relationship between sustainability and Germany’s fundamental human rights. While sustainability is a universally valid concept, traditionally a place for environmental action is actually not a constitution. Despite this, Germany has taken this step. This links the protection of the environment to the protection of future generations. In other words, environmental damage impacting on people living in the future and impairing their fundamental human right is unacceptable in the general principle of equality.
Germany’s constitution calls this “the inter-generational responsibility” of the German state to protect the environment. Maintaining the sustainability of fundamental human rights constitutionally means protecting behaviors that are sustainable. This means that the use of the “presents” demands a proactive, economical and environmentally friendly state that sustains sustainability. Germany’s fundamental human rights justify environmental protection as a function of the state.
For the German state, this links the beneficial relationship of fundamental rights to the sustainability offered by those rights with the UN’s Agenda 2030 and its 17 Sustainable Development Goals (SDGs), which can be summarised into three groups:
Individuals & Society: Poverty eradication (goal 1), ending global hunger (2), promoting health (3), enhancing education (4), gender equality (5) and the environmental goal of clean water (6).
Prosperity and Economy: Transitioning towards sustainable energy (7), decent work (8), innovation and infrastructure (9), reducing inequality (10), sustainable communities (11), and responsible consumption (12).
Planet and Partners: Climate action (13), ocean conservation (14), biodiversity (15), peace and justice (16), and global partnerships (17).
Germany’s environmental sustainability objective is significant, particularly regarding the right to life and physical integrity. It contains environmentally protective guarantees. This extends to environmental changes that are damaging to health or even life-endangering. For example, Germany’s multi-year drought period, which led to significant crop losses and damage to agriculture and forestry, should be prevented in the future. Simultaneously, the increased risk of heavy rain, floods, and other extreme weather events also falls within this scope. In these situations, the fundamental rights of people can be adversely affected, and therefore the German state has a duty to establish preventative measures.
As for the environment, the jurisprudence of Germany’s constitutional court (supreme court) shows that there is a basic legal protection obligation of the state in the area of environmental protection. In an early decision on nuclear law, the court clarified that there is a fundamental legal duty for the state to protect the environment. This also extends to provisions whose objective is to ensure that risks —even those projected into the future — are avoided.
Germany’s constitutional court has, however, applied this duty to protect rather reluctantly. In spite of the court’s substantial references to the UN sustainability agenda, one can state that securing the future of society is highly relevant. The court’s climate decision of March 2021, in which Germany’s constitutional court issued a somewhat “revolutionary” verdict regarding the German Klimaschutzgesetz (climate protection act), marked a real paradigm shift — at least that is the hope.
In other words, sustainability has become a key concept of modern constitutional law — it is indispensable.
However, a fundamental right to a healthy environment is rather foreign to Germany’s constitution. Yet, with the establishment of protective rights, the constitutional court paved a promising way for constitutional law that is more strongly focused on sustainability. It still remains to be seen to what extent the newly developed environmental principles, in addition to climate protection, will gain long-term relevance in other areas of life. The issue of sustainability, as found in Germany’s constitution, supports environmental rights. These are objective legal principles of German constitutional law.
Particularly clear is the concept of sustainability in article 20a of Germany’s constitution. Yet, the implicit mention of sustainability in Germany’s constitution is, at present, entirely insufficient. Consequently, it remains necessary to introduce mechanisms that place Germany’s constitutional obligation to protect the environment on a more solid foundation, thereby moving Germany towards becoming a “sustainability state.” The state would then ensure that future generations can enjoy an environmentally, economically, and socially sustainable life. For such a constitutional mandate for sustainability, environmentally protective action by the state must be a permanent responsibility without an expiration date.
Finally, it should be possible to introduce an addition to the preamble of Germany’s constitution outlining the state’s commitment to sustainability. The constitution’s preamble has a very strong normative quality. In short, such a change would not be a purely symbolic gesture.
Despite the current shortcomings of Germany’s constitution in sufficiently recognising pressing environmental issues, the constitutional requirements for sustainability are considerable. In short, Germany’s constitution is now founded upon three basic ideas: sustainability, environmental stability, and the protection of future generations.
In the end, the environmental safeguarding amendment to Germany’s constitution of 1994, together with Germany’s Supreme Court decision of 2021, which strengthened it, has made it very clear to the German state that environmental protection, sustainability, and the fight against global warming are the raison d’être: the very purpose of the existence of the German state.
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