The existing climate regime has not yet put the global community on the right track to achieve the temperature target agreed by 194 countries in the Paris Agreement. Some scholars argue that public (international) law lacks the instruments to strike an appropriate balance between individual freedoms and property rights on the one hand and the protection of the atmosphere on the other. They criticize that the law maintains a relationship of domination of humans over nature and does not adequately protect future generations. The atmosphere is a case in point. It is treated as res nullius. Its use as a sink for greenhouse gases is – without legislative restrictions – potentially unlimited, which leads to massive global warming. At the same time, its protection requires a long-term strategy that legislation cannot easily guarantee in a democracy, as democratic rule is tied to electoral periods. Future generations who are significantly affected by the damage to the environment caused by climate change have no democratic voice and limited legal protection.
My project therefore draws on new legal approaches that focus on humanity’s responsibility towards nature and challenges existing conceptualizations of individual ownership. Some authors qualify the atmosphere as a global commons. This qualification generates the legal consequence that the freedom of the sovereign state and individuals to use the atmosphere as a CO2 sink is inherently limited in favour of environmental protection and future generations. This modifies the balance struck against competing interests. The conceptualization of the atmosphere as a global commons, it is argued, allows to supplement the human-centric framing of the atmosphere as a natural resource with a relational understanding of human autonomy and nature. The theory of fiduciary government and the doctrine of public trust provide an analytical framework for conceptualising the protection of global commons and deriving duties specifically designed to protect them. The concept of relational autonomy developed in critical feminist theory can offer new insights into the relationship between the individual or state and the environment and help dissolve dichotomous thinking that pits anthropocentrism against ecocentrism. These responsibility-oriented perspectives entail concrete legal consequences for the use of global commons, more specifically the atmosphere, and the associated legal responsibility. They do not draw a categorical line between state and private responsibility. My project analyses and critically assesses how these ideas shape and influence global climate law and other areas of international law in which climate related interests collide with economic interests. At the same time, it reflects on the post-colonial trajectory of some of these concepts.
Building on this groundwork, the project analyses whether and how the recognition of the atmosphere as a global commons would impact its protection in constitutional and administrative law at the domestic level. It studies how international obligations for climate change mitigation are and may be transformed into domestic legal duties that facilitate local co-governance of the atmosphere. In particular, it explores the emergence of an administrative order aimed at the equitable and sustainable use of the atmosphere as a global commons. To this end, it draws on a comparison with the transnational framework of water law. In this context, the project also examines the legal problems faced by national institutions in fulfilling this task, such as determining a fair national share of global CO2-mitigation or assessing the appropriateness of a particular project given its potential impact on climate change, and develops ideas for solving these problems. The project focuses on the European Union and Germany as self-proclaimed pioneers in climate protection. In terms of method, the project combines descriptive-analytical, doctrinal, and comparative law approaches and draws on philosophical foundations of the existing legal framework.
Publications:
See also, Max Planck Law Initiative on "Law, Climate Change, and the Environment" (here)
