Environmental issues are an important part of, if not central to, the research agendas of scholars across disciplines. This also holds true for many of the researchers across the Max Planck Law network. Driven by the pressing imperatives of the climate crisis, they look at how environmental shifts have cascading effects on individuals and communities; they probe the extent to which law influences such transformations, recognizing it as a pivotal factor in the intricate interplay between human beings and nature; and they look at how law has become a nexus for diverse disciplinary perspectives, producing theoretical and practical insights in response to environmental challenges. What follows are highlights spread across six headings: 1) Conceptual Debates; 2) Law, Ethics, Environment; 3) Environmental Rights and the Global South; 4) Policy, the EU, and International Institutions; 5) The Importance of the Past; and 6) The Importance of the Future.
Impacts
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Conceptual Debates
How should we understand the key concept of the ‘Anthropocene’? Is this concept sufficiently nuanced in contemporary debates? What is the relation of law to the Anthropocene? Such basic questions were addressed in the workshop Recht im Anthropozän (Law in the Anthropocene), hosted by an interdisciplinary working group on law and the Anthropocene of which Johan Horst (Researcher) is a co-member. While it is commonly assumed that law is a mere instrument to address environmental crises, the workshop took a different approach by exploring the complex and multifaceted relationship between law and the Anthropocene. Such an approach challenges and renders problematic the very preconditions of law.
What of the legal concept of the ‘environment’? In the article ‘The Place of the Environment in State of Nature Discourses …’, Tom Sparks (Senior Research Fellow) considers classical theories of the state of nature to understand how these shaped the ways in which ‘nature’ or ‘the environment’ are conceived as relevant concepts in modern international law. Sparks notes that these theories commonly view the natural world as a resource to be exploited and as a passive space in which human concerns are played out. They lie at the core of international environmental law and hinder the advancement of environmentally conscious legal instruments.
Sparks further contrasts the borders of nation states with the boundlessness of nature. Sovereignty protects state borders while nature rebels against it. The question therefore arises as to whether the concepts used in international environmental law are fit for purpose.
Concepts can also be developed through comparative legal analysis. In ‘Global Legal Pluralism and the Rights of Nature’ Daniel Bonilla (Visiting Fellow) provides an account of ‘nature’ that draws from the knowledge of indigenous communities in two jurisdictions of the Global South (Ecuador and Bolivia) and New Zealand. These communities imagine nature as a life-giving mother. As such, Mother Nature has agency and has interests separate from those of the humans that interact with and in it. This understanding of nature has the potential to transform the conceptual core of environmental law as it challenges ideas that are central to Western legal modernity. Nature becomes both a space inhabited by organic and inorganic entities as well as a legal subject with rights.
Law, Ethics, Environment
If ethics refers generally to duty and guiding principles of conduct, then the recent Max Planck Climate Conference for a Sustainable Anthropocene, co-organized by members of the Max Planck Law Initiative on Law, Climate Change, and the Environment (see video below), might be said to have affirmed, amongst other things, an ethical commitment to interdisciplinary research in order to gain a more holistic understanding of the complexities involved, while also acknowledging the need to strike a balance between breadth and depth of research. It was noted that interdisciplinarity enables theoretical solutions to be more rigorously checked and to better identify pathways to implementation. Moreover, interdisciplinary work can help generate new topics and open up new perspectives in the participating disciplines, including law.
In an ethical appeal for ‘all of us to recognize and practice individual as well as institutional responsibility for the fate of planet earth’, the World Lawyers’ Pledge on Climate Action (‘Pledge’) urges lawyers to consider the mainstreaming of climate concerns throughout their professional activities. The Pledge, signed by several high-profile lawyers from across the world, including a number of researchers from the Max Planck Institute for Comparative Public Law and International Law , invites lawyers in all areas to include environmental concerns in their practice, and by doing so, to become climate lawyers in their respective fields. Why? Because dealing with the climate crisis needs the transformative power of the law at a structural level. The authors acknowledge that while many lawyers might find it unusual to engage in issues they view as political, they should set aside such hesitations given the gravity of the climate crisis—an existential threat that concerns everyone.
Ethical challenges are also posed when environmental concerns and artificial intelligence (AI) intersect. Elisa Orrù (Senior Researcher) examines the environmental consequences of exploiting minerals, land, and water for the production of AI hardware. In a concise article ‘Small Data for Sustainability: AI Ethics and the Environment’, Orrù writes, ‘a recent MIT study calculated that one training session of a large language model generates about 284 tons of CO2’ and carries on to argue that a shifting away from Big Data to Small Data could be the appropriate ethical response. This would improve access to systems of information and our interactions with these systems globally, thereby reducing regional inequalities.
Environmental Rights and the Global South
The Max Planck Fellow Group ‘Environmental Rights in Cultural Context’ (ERCC), led by Dirk Hanschel (Max Planck Fellow), examines the extent to which environmental rights provide protection and serve as a tool of resilience in the face of challenges to local cultural identity and autonomy resulting from environmental threats such as climate change, degradation through harmful economic activities, so-called land grabbing, etc. At the same time, the project recognizes the need for economic development and prosperity and the tensions that result from this. The analysis aims to show the extent to which environmental rights as fundamental rights may constitute a powerful tool of protection whilst allowing for the necessary flexibility to help local communities adapt to changing circumstances.
Elsewhere, the general report presented by Daniel Bonilla and Ralf Michaels (Director) to the twenty-first General Congress of the International Academy of International Law begins by presenting a survey of hundreds of initiatives that appeal in some way to rights of nature. In the words of Michaels, ‘the leaders in formulating rights of nature have been countries of the global South …. Even if it isn’t established how nature’s voice may be heard or interpreted, the very attempt is an important shift away from the anthropocentric perspective of modern Western law’. Moreover, ‘the rights of nature are an exciting topic for comparative law, not least because a legal institution of the Global South has been an inspiration for the global North, not the other way around as usual—it’s a reverse legal transplant’.
Policy, the EU, and International Institutions
Another important feature of environmental law is the effectiveness, legitimacy, and enforceability of environmental protection norms and policies set by international bodies. For example, Tom Sparks and others alert us to the increasing use of strategic litigation to circumvent the ineffectiveness of the Paris Agreement (a legally binding UN treaty). In the blog post ‘Judging Climate Change Obligations: Can the World Court Rise to the Occasion?’ as well as a later journal article, the authors suggest that, given the absence of clear obligations in the Paris Agreement, using the ‘No Harm’ rule in strategic litigation shows promise as a way to obligate states ‘to take reasonable measures to prevent activities within its jurisdiction from causing serious transboundary damage’, which could of course include environmental damage. However, the authors admit that ‘discerning the normative content of that obligation to judge the concrete behaviour of one state will not be an easy task.’
With regard to the enforcement of sustainability agreements, a 2021 paper by Paolo Mazzotti (Research Fellow) considers the advisability of making sanctions available for the enforcement of the Trade and Sustainable Development (TSD) Chapters of the EU’s Free Trade Agreements (FTAs). The current procedure for disputes concerning FTAs involves the EU promoting engagement with sustainable development. This is based on dialogue rather than sanctions or other compliance measures. However, Mazzotti argues that the EU’s sustainability rules would be better served by processes of adjudication that include the threat of sanctions, as is currently the case in respect of FTA Chapters other than TSD ones, which contain provisions of an exclusively economic nature. This would place TSD chapters on an equal footing with purely commercial provisions in FTAs, thereby ‘enhancing the implementation of sustainability commitments in the EU’s FTAs’. In 2022, the European Commission announced a policy change that partially went in the direction advocated by this paper.
An interesting contrast to the enforcement of sustainability and/or climate agreements is the idea of the public sphere exercising scrutiny over the principal actors in the climate regime. In Shaping Global Public Spheres Through International Law: An Investigation Into International Climate Change Law, Moritz Vinken argues that the institutional structures created by international climate change law have not only created one ‘strong’ public sphere in the form of the conference of the parties but rely on a second ‘strong’ global public, the Intergovernmental Panel on Climate Change, which aims to institutionalize the global climate science community without abandoning an intergovernmental structure. What is more, the paradigm shift accompanying the Paris Agreement has made global climate change governance increasingly reliant on an active transnational global public sphere.
‘Green monetary policy’ and the potential role of central banks in tackling climate change is an issue that has attracted a great deal of attention worldwide. In their article ‘Climate Change and the Mandate of the ECB … ’, Michael Ioannidis (Senior Research Fellow) and Chiara Zilioli examine whether the European Central Bank (ECB) has a responsibility to take environmental considerations into account when carrying out its mandate. Reflecting the findings of the milestone 2021 ECB Strategy Review, in which they were involved, the authors argue for a middle ground between those who assert that the ECB’s mandate excludes any climate-related role and those who argue for a broad responsibility. This middle ground involves allowing an environmental dimension in the ECB’s monetary policy decisions (as part of its primary or secondary objective of supporting the general economic policies of the EU), but only to the extent that it does not make its own environmental policy. According to the authors, the ECB cannot remain blind to environmental considerations, but what is ‘brown’ or ‘green’ is a decision for electorally accountable institutions.
The protection of human health is a major objective of EU environmental policy. Indeed, they are closely connected. According to Alessandra Donati (Research Fellow), there is, moreover, an intrinsic link between the climate crisis and the recent pandemic, as they both arose from the destruction of environmental and health ecosystems. In the paper ‘Climate Change and Pandemics: the EU Risk-Management Strategy Under Scrutiny’, Donati argues in favour of a coordinated risk management strategy by the EU, one that would permit a holistic understanding of the increasing threat to life and health that environmental deterioration poses, as well as synchronized decision-making processes to deal with future pandemics in ways that do not hinder any progress made in environmental protection.
One of the most high-profile public policies in the fight against climate change is the transition away from hyrdocarbons. The growing prevalence of Electric Vehicles (EVs) is just one visible manifestation of this. But is it the case that having more EVs on the road can only be a good thing? Begoña González Otero (Senior Research Fellow) and others suggest otherwise in their detailed paper ‘Promoting Sustainable Innovation-Led Growth? The Potential and Risks of EV Policies’. The production of EVs, the style and size of EVs, and their use as compared with public services are just some of things that can have a knock-on effect on greenhouse gas emissions. ‘Accordingly, the goal should not be to push only for EV technology, but to ensure that the environmental impact is as low as possible and that all processes are as efficient as possible.’
The Importance of the Past
Jan-Henrik Meyer (Researcher) combines the history, politics, and law of European integration with environmental history. The project ‘A Transnational History of European Environmental Law’ aims at showing how European environmental law has been shaped by a diversity of national, European, and international actors, including legal and scientific experts and societal groups. These actors cooperated transnationally in shaping this new body of European law, through scholarship, legislation, and jurisdiction. The core hypothesis is that, given the novelty of environmental law, European lawmakers, notably the European Commission, were particularly open to the involvement of a variety of actors.
Meyer also affirms ‘A Plea for More Historical Awareness in Environmental Law’. In his review of an entry in the Oxford Handbook of Legal History by David Schorr, Meyer agrees that collaboration between the disciplines is long overdue. It could, for example, highlight the way in which environmental historians have used legal texts as sources to understand the interaction and continued feedback between humans and nature. Despite the risk of using history to back a specific political agenda, which is a possible interpretation of Schorr’s plea, Meyer nonetheless agrees with Schorr that, for example, empire and capitalism are topics that historical research on environmental law should take into consideration.
The Importance of the Future
A cross-cutting theme in the research on law and the environment is the focus on sustainable development, the quest to maintain healthy living conditions for both present and future generations. In the article ‘Sustainability and Future Generations: How Can Their Interests Be Preserved?’, Samuel Hartwig (Doctoral Researcher) argues that the preservation of the environment for future generations is an obligation based on the principle of intergenerational equity. This principle states that as long as future generations: 1) inherit the earth in a condition similar to that received by their predecessors, 2) are provided with equivalent options, and 3) have comparable access to the planet’s resources, intergenerational equity can be achieved. Interestingly, Hartwig goes on to conclude that future generations could be represented today at the negotiating table through the ‘creation of guardians or ombudspersons for future generations’.
In the Max Planck Law Perspectives article, ‘Climate Protection, the German Federal Constitutional Court, and the Future of the Welfare State’, Ulrich Becker (Director) notes that, subsequent to the climate protection decision of the German Federal Constitutional Court of 24 March 2021, there is now talk of an ‘intertemporal’ protection of fundamental rights, though Becker prefers the term ‘future-related’. He argues that this amounts to a doctrinal innovation in fundamental rights insofar as it concerns neither a ‘duty to protect’ nor ‘equality over time’ but an ‘encroachment on fundamental rights’ that occurs in advance: ‘In this way, one thing is made possible: the ability to ward off future adverse effects today.’
As a doctrinal innovation, Becker argues that this has potential effects also for social law in Germany. However, while some of these effects may be beneficial, they may also in some cases create new problems, for example, the potential overburdening of courts and even the creation of new inequalities. The same may also apply to environmental law. We should be careful, therefore, not to rely only on law to save us, for some solutions are better sought in the realm of politics.
Max Planck Law gratefully acknowledges the assistance of Laura Salamanca in the preparation of this Impact page.