Potential takeaways for future climate migration litigation
- Crucially, through its findings, the court essentially introduced indirect yet enforceable intergenerational fundamental rights. This new legal dimension of fundamental rights also enables people who, at the moment are only potentially or in the future likely to be forced to migrate, to take legal action and insist on their protection in the here and now.
- The court has made the state protection provision of Art. 20a GG – which had thus far been relatively ineffective – defensible, and emphasized the increasingly relative importance of climate protection in comparison with other fundamental rights.
- In its deliberations, the court also relied on reports from the Intergovernmental Panel on Climate Change (IPCC) and other climate organizations. This shows that these international bodies and organizations and their expert reports can be utilised to support valid lines of argument.
- NGOs themselves cannot sue with litigation status, unless they assert the direct, present possibility of a violation of one’s own fundamental right (standing).
- And perhaps most importantly, the statements on protection against citizens of other states. The BVerfG clarifies that fundamental rights also bind the German state vis-à-vis citizens of other states. Although this is graded according to the circumstances, it removes the territorial legal obligation limits of the state and opens up new responsibilities. However, it is still a prerequisite that, at least under German law, the plaintiff is still individually affected, which can still lead to problems under the principle of causality.
“It seems conceivable in principle […] that duties of protection under fundamental rights also oblige the state to take action against adverse effects of global climate change vis-à-vis the complainants living in Bangladesh and Nepal. Article 1 (3) of the Basic Law does not limit the German state’s fundamental rights obligation to its national territory, but establishes a comprehensive obligation of German state authority to the fundamental rights of the Basic Law. However, this obligation is graded according to the circumstances in which they are applied. And indeed, the duty to protect does not exist in the same way as towards German citizens, because, for example, the possibility of adaptation on foreign territory is already limited. However, the court shows that Germany has a responsibility, politically or under international law, to ensure that positive measures can be taken to protect people in the poorer and even harder-hit countries…” (para. 174)