The fundamental right to the integrity of socioecological systems in climate constitutionalism

Abstract

Through the inductive method as well as bibliographic and monographic research, it is intended to justify the transformation of the dogmatic structure of the fundamental right to the environment from the attribution of priority to an imperative to ensure the integrity of socioecological systems in the context of a so-called (and emerging) climate constitutionalism. Based on this protection imperative, which defines the fundamental right in the context of the ongoing climate emergency, the fundamental right to the environment is presented as a right to the integrity of socio-ecological systems, with climate also being a socio-ecological system. It is argued that, for the content of a fundamental right, adequate content must be structured for the duties of protection, which, in the context of climate change, present themselves as a duty to protect socio-ecological systems according to the state of the art and (climate) science. In order to justify such a content for this fundamental right and for the protection duties associated with it, we utilize the argument described in the Neubauer decision of the German Federal Constitutional Court, which is based on the recognition of a duty to update the contents of the fundamental rights in accordance with the state of the art and science. This argument is also developed from illustrative cases of recent decisions by the Brazilian Federal Supreme Court (STF) in 2002, that could justify a possible way to develop differentiated content for fundamental rights in a climate constitutionalism in Brazil, which would allow pro natura solutions.