ABSTRACT

Like the previous chapters on justice and human rights, the following chapter concerns a fundamental concept of law and governance. The State has the central authority to govern people in a given territory. The authority involves the making and enforcement of rules based on fundamental principles such as justice and human rights. Without the State, these principles could not be guaranteed. From the perspective of the principle of sustainability the question arises, therefore, how the modern state responds to the global environmental challenge and how this may affect its basic functions and duties. This question has two very different dimensions. One concerns the State’s internal (domestic) function, the other its external (international) function. The domestic function of the State is determined by a constitution and performed through legislation. It is possible, therefore, to examine a national constitution and environmental legislation and see how issues of ecological sustainability are being served. As we have seen, most constitutions provide for environmental human rights or state obligations. In formulating its constitutional goals, the State develops certain characteristics. These can be summarized by classifying the State as, for example, a ‘constitutional state’, ‘social welfare state’ or ‘socio-constitutional state’. This way, a whole typology of state descriptions can be developed.2 Emphasizing its environmental goals the State has been classified as ‘environmental state’ (German Umweltstaat).3 Adding those attributes to the term ‘state’ does not in itself say much about the State’s actual performance, but helps to identify conceptual approaches and differences. In the case of Germany, the term Umweltstaat has channelled and focused the debate on relevant principles, policies and laws. One key issue of debate here is the relationship between Umweltstaat and the Rechtsstaat (‘constitutional state’). Are constitutional obligations to protect the environment in potential conflict with individual freedom and human rights, as some suggest,4 or are those obligations an inherent part of the idea of

1 See also Bosselmann, K. (2015), Earth Governance: Trusteeship of the Global Commons (Cheltenham, Edward Elgar Publishing).