Abstract
This article will provide normative criteria for the use of phosphorus as a scarce natural resource. It gives some theoretical background on the relevance of an ethical and legal approach to environmental issues, especially with regard to environmental human rights, taking into account both transnational and national perspectives. A special focus lies on the intergenerational and global relevance of human rights.
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Notes
- 1.
This distinction is not clear, e.g., in Habermas (1985). Many readers, and probably the author himself, seem to attach a normative meaning to this book; the actual topic, however, is anthropology respectively descriptive theory of societies.
- 2.
Of course, there are cases, though they are not numerous, in which the ECJ has declared EU legal acts void for formal reasons, e.g. due to a lack of legislative competence. But there does not appear to be any case in which the ECJ has ever required the EU to enact legal provisions against their will.
- 3.
Laws, regulations, constitutions, etc. remain the only abstract and general norms. Nevertheless it is acceptable that the practice often turns to existing judgments, because (and only) in the event that no substantial grounds be argued in favor of a change of legal opinion, the burden of argumentation bears on the party challenging the existing legal opinion from previous case law (inter alia for reasons of legal certainty), cf. Alexy (1991); on the rationality of the application of the law and the methods of legal interpretation, see also Ekardt (2011).
- 4.
The issue here is thus an interpretation of all fundamental rights. The rights of equality which do not seem to fit are ultimately special protections of the same freedom and thus do not contradict the following considerations.
- 5.
The international trend toward “social” fundamental rights to the various facets of the minimum subsistence thus has a theoretical justification. Such a “constitution of international law” can be derived from the legal source of the “general principles of law” (cf. Article 38 of the Statute of the International Court of Justice) without recourse to, e.g., the International Covenant on Economic Social and Cultural Rights; cf. Ekardt (2011), Sect. 7.
- 6.
Incidentally, “protection” as defined in this argument can also consist in granting a benefit to an individual, such as a monetary payment to secure a minimum level of subsistence.
- 7.
The third argument is the wording of provisions such as Article 1 paragraph 1 sentence 2 of the German constitution or Article 1 ECFR, which have been briefly referred to above. Public authorities shall “respect” and “protect” human dignity and also the liberties, which under Article 1 paragraph 2 GG (“therefore”) exist for dignity’s sake, and thus must be interpreted according to its structure. This relation (“therefore”) can also be found in the materials of the ECFR. In addition, the double dimension (“respect/protection”) of human dignity and therefore also of the fundamental rights–given the function of dignity as a reason for all human rights which was just described–shows that freedom can be impaired by threats from various sides and that, therefore, it implies defense and protection. But most of all, the word “protect” would lose its linguistic sense if it only meant that the state shall not exercise direct coercion against the citizens (otherwise the state could simply retreat to not acting at all instead of “protecting”). Hence norms such as Article 1 paragraph 1 of the German constitution and Article 1 ECFR also imply a protection against fellow citizens. And defense and protection are linguistically on equal footing there. All this implies again that there are fundamental rights of defense and protection and that protection and defensive rights must be equally strong—and that we should speak of protection rights, not of somewhat less strong mere protection obligations. This holds true even though (in the interests of an institutional system based on democracy and a separation of powers, which is indeed the most effective protection of freedom) this “protection” cannot be understood as a direct effect of fundamental rights among citizens, but as a claim against the state for protection (see, specifically Article 1 paragraph 3 of the German constitution and Article 51 ECFR).—Article 1 paragraph 2 of the German Constitution as well as the title of this section-and also the materials on the ECFR-talk about “human rights.” Thus not only “some” rights are based on dignity, as one might respond, but all of them. Therefore, the structure of human rights, i.e., “equal respect and protection” applies to all and not just some human rights.
- 8.
In favor of an equal footing cf. already (but without comprehensive reasoning) Calliess (2001).
- 9.
First, a constitutional court may never order a judgment against a parliament stating “You have to do precisely this.” Contrary, it must always limit its decisions to saying “At least you must not continue doing this.” For instance, the Constitutional Court may not demand from the Parliament: “Phase out the use of coal power within four and a half years.” It may say: “The previous phasing out is too slow; take a new decision on the issue until XX.YY.2010, taking into account the following fact situations, normative concerns, as well as procedural and balancing rules.” Conversely, a constitutional court could rule on an action brought by an energy company: “Of course, the legislature may phase out nuclear power generation—but it must remain within a certain limit which it has crossed unfortunately, as it has demanded phasing out the use of nuclear energy within three days.” This is all the more true as the ping pong also includes the administration and the lower courts, as just outlined by the brief introductory note on the “passing on” of balancing by the legislature. It allows authorities to respond to a court decision with new decisions, which then in turn are subject to judicial control. The same is true with respect to the legislator and the constitutional jurisdiction. And the legislature may also react on decisions of lower courts with legislative changes, etc.
- 10.
In liberal democracies, there are also “further” (in contrast to “elementary”) preconditions of freedom such as macroeconomic stabilization, biodiversity, etc., which are extremely helpful, but not absolutely necessary to constitute freedom. Therefore, such “further” preconditions of freedom are usually seen not as human rights but as mere obligations of the public powers (without corresponding rights of individuals). This does not mean at all that these “further” conditions are less important.
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Ekardt, F. (2016). Justice and Sustainability: Normative Criteria for the Use of Phosphorus. In: Schnug, E., De Kok, L. (eds) Phosphorus in Agriculture: 100 % Zero. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-7612-7_15
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