1. Introduction
The following text describes a universal moral-legal strategy to enforce climate action via international and national legal systems. Thereby, general legal principles which can be found across jurisdictions and general moral principles are applied combining conventional (consensus-based) and post-conventional (absolute) moral principles. This text is a synthesis of previous blogs discussing legal means to enforce climate action in the Swedish legal system [1], in democracies in general [2] and convince people on various stages of moral development [3, see Kohlberg].
2. Conventional Perspective
A successful case to take climate actions for legal bodies, eg governments or corporations consists of the following components:
- Scientific evidence confirming the present and future impact of global warming justifying an emergency declaration. [3,4,5]
- Scientific evidence confirming that the accused organisation does not take adequate action or will not take adequate action. [15]
- If the organisation cannot provide evidence that it is or will take adequate action, this should be also considered a legal offense. (“In dubio pro duriore.”)
- Scientific evidence should be based on actual actions and not pledges without legal consequences if violated.
- International laws (incl. laws, declarations, conventions, treaties) which are applicable.
- Paris Climate Agreement [6]
- International Human Rights Law [7]
- International Health Regulations [8]
- United Nations Convention on the Rights of the Child [9]
- National laws which are applicable.
- Constitutional law
- Law to protect the groups of vulnerable groups, incl. women, children, ethnic minorities, religious groups, which are also harder affected by climate change
- Future laws (de lege ferenda)
- Social and moral norms (basic values)
- General legal principles (see [12] for an overview)
- prudent man principle [10]
- precautionary principle [11]
3. Post-conventional Perspective
Law is a system of rules created and enforced through social or governmental institutions to regulate behavior which is under philosophical discussion from the perspective of analytic jurisprudence (“What is law?”) and normative jurisprudence (“What should law be?”). [13]
As every system of rules situations arise where two rules may contradict each other which have to be prioritized or balanced against each other based on guiding principles of a meta-system of guiding rules and values beyond the legal system.
3.1 Unbearable violation of principles of equality and justice
As an example, according to the Radbruch Formula [14] a conflict between existing law and perceived justice can be resolved as follows:
- justice should be favoured
- if a law violates the principle of equality and justice is not intended
- if the discrepancy between law and justice is considered unbearable.
- in all other situations, the positive law should be favoured
3.2 Lack of representation of affected people or areas
The legitimacy of laws in democracies is based on the democratic principle where the people have the authority to deliberate and decide legislation. The guiding principle is here that persons who are affected by a decision should also be able to influence it based on the values of individual or collective self-determination and the pursuit of happiness. However, decisions which affect members of future generations or non-citizens (e.g. in other countries) or non-human living beings (e.g. animals, plants) this principle is violated and cannot be implemented because of theoretical (people do not exist yet) or practical (language, geographic distance, cultural difference) barriers.
Here, the will of the non-represented group must be conservatively imputed, for example, assuming that future generations and other nations do not want that their basis of living or eco-systems are destroyed. Such imputations can be made based on guiding universal values such as “The biosphere on Earth must be preserved in at least the same condition as an individual or group has found it!”.
If this principle is not followed and decisions are made by the current generation which go against the interest of future generations or another nations this decision-making group basically represent a dictatorship of a minority of the living, powerful generation forcing their decision upon a majority of many future, powerless generations.
Therefore, political decisions which violate the sustainability of the biosphere for future generations, who cannot influence these decisions, do not have a basis founded on democracy and resulting laws lack a legal basis. What is more, actions of current groups which represent the will and the interests of other groups which cannot participate in the democratic process are actually democratic because the ensure an adequate representation of interests in the decision-making process.
3.2 Lack of resources to implemented a democratic deliberation and decision-making process
The democratic process requires considerable resources in terms of people engagement, time, and money to decide on laws. These resources may not be available in emergency situations, where the risks of a non-decision are greater than non-democratic decisions where an elected leaders makes decisions in the interest of the people in accordance with the law, however, without involvement with the conventional democratic bodies (eg parliament) to preserve a higher good, eg human life.
Also in the climate emergency, the urgency of a emergency can be used to justify decisive action, which may also go against some existing laws or legal values, because of superior values, e.g. the preservation of property or human lives.
4. Court Decisions
4.1 pro climate activists
- 2022-11-10, Acquittal of tree sitters in Germany,
https://www.ndr.de/nachrichten/schleswig-holstein/Freispruch-fuer-Baumbesetzer-vom-Flensburger-Bahnhofswald,bahnhofswald174.html - 2022-11-11, Judge refuses to prosecute activist with order of punishment
https://taz.de/Blockaden-der-Letzten-Generation/!5890597/
4.2 contra climate activists
- …
References
Blogs
[1] https://biosphere.wilmarigl.de/en/?p=1714
[2] https://biosphere.wilmarigl.de/en/?p=620
[3] https://biosphere.wilmarigl.de/en/?p=1534
Scientific evidence confirming the present and future impact of global warming justifying an emergency declaration.
[3] Intergovernmental Panel on Climate Change (IPCC, 2018). Special Report: Global Warming of 1.5 ºC, https://www.ipcc.ch/sr15/
[4] Hansen, J. (2008). Target Atmospheric CO2: Where Should Humanity Aim?, The Open Atmospheric ScienceJournal, 2008, 2, 217-231. https://openatmosphericsciencejournal.com/contents/volumes/V2/TOASCJ-2-217/TOASCJ-2-217.pdf
[5] Rockström et al. (2020). Climate tipping point – too risky to bet against, Nature, 2019; 575 (7784):592-595. doi: 10.1038/d41586-019-03595-0. PDF: https://media.nature.com/original/magazine-assets/d41586-019-03595-0/d41586-019-03595-0.pdf
International law
[6] https://unfccc.int/files/meetings/paris_nov_2015/application/pdf/paris_agreement_english_.pdf
[7] https://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx
[8] https://www.who.int/publications/i/item/9789241580410
[9] https://www.unicef.org/child-rights-convention
General legal Principles
[10] https://en.wikipedia.org/wiki/Prudent_man_rule
[11] https://en.wikipedia.org/wiki/Precautionary_principle
[12] Cox, R. (2012). Revoluation Justified. Planet Prosperity Foundation. http://www.revolutionjustified.org
[13] https://en.wikipedia.org/wiki/Law
[14] https://en.wikipedia.org/wiki/Democracy
[15] https://climateactiontracker.org/global/cat-thermometer/
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