V. Is there a need for a Constitutional reform?

The insertion of an explicit, all-encompassing sustainability clause into the Constitution and other means to make sure the observance of the interests of posterity that are being discussed shall be presented now.

Although section 20a deals with subsequent generations as shown, and in doing so, a considerable step in the right direction was made, it does not comprise sustainability beside the ecology and the preservation of the environment. Further fields in which its consideration is necessary are, for instance, financial issues (where the practical effectiveness of the above-mentioned amendment of sec. 109 in 2009 has to be awaited and observed), social security, investments in infrastructure, and regarding to the alienation of federal patrimony to counteract unbalanced budgets as well as international aspects (development assistance and cooperation, fairness of global trade). As a cross-sectional matter, sustainability relates to almost all areas of life. ^[68]

It is not redundant, for such a provision does not exist yet and other provisions cannot be interpreted so as to fulfil the same intended purpose.

First of all, a recent bill introduced by young delegates of different factions is to be mentioned that was proposed (yet not accepted and not turned into constitutional law) in the Bundestag suggesting the insertion of a section 20b into the Basic Law, ^[69] that is to say, systematically right behind the above-quoted basic institutional principles and the environmental protection clause. It said: "The State shall adhere to the principle of sustainability in its acting and protect the interests of future generations". Such a measure would certainly entail the advantage of concentrating all the components into one coherent clause, integrating everything that has to do with perpetuating valued conditions for the future. The advantage is that it would have the great influence that is immanent to the constitutional law, and that it could provide for perpetuated pressure and guidance from the constitutional level, affecting and having effect on every public decision.

The bill was not passed, mainly due to of the following argumentation: Beside there being scepticism because of the recent major constitutional reform, ^[70] the term was considered to be too vague and empty, so that it would eventually only lead to case law on the part of the Bundesverfassungsgericht, and finally, it would not lead to success because every political party has different ideas about the contents of intergenerational justice. ^[71] It was also argued that such a clause would withdraw too many public funds from where they are needed today. ^[72]

It can be replied to the criticism that many constitutional principles and terms require interpretation, in fact, this is common. It is the task of jurisprudence, courts and every applier of the law to work with the new legal situation, as well as it is their responsibility not to treat it like an empty phrase. Accentuations by the Bundesverfassungsgericht in the process are clearly welcome. The withdrawal of important public funds where they are needed today is not a necessary consequence because it is inherent to the concept of sustainability, by definition, to take into account the present society in decisions.

Furthermore, to complement the rules governing the State’s finances, the insertion of a section 109 para. 2 was suggested, generally demanding to heed "the principle of sustainability as well as the interests of future generations" in budget law. This would certainly support the thought that each generation must solve their own problems and refrain from burdening them to future generations, but leaving them their own freedom of decision and freedom for creativity. The 2009 amendment does not name "sustainability", but it is obvious that the principle already stands behind the new sec. 109. We will witness the effects in the bugdet politics sooner or later.

Much as it is true that the democratically legitimated Parliament is reliant to a scope for extensive own judgments concerning the budget including borrow, section 115 needs to be reformed to constrict the budget law a bit more in favour of future generation. J. Tremmel suggests the insertion of the following sentence into section 115: "The identification of a disturbance of a macroeconomic equilibrium rests with an Expert Advisory Board" so that the Government would be bound by the judgment of an independent body of specialists. ^[73] As alternatives, he also suggests the complete cancellation of the whole exception in section 115, and an across-the-board discount to the investment sum by a specified percentage (to take into account investments that fail). These are promising approaches to be assessed furthermore in jurisprudence and to be considered in the upcoming constitutional reform regarding the public finances.

Another notable suggestion for a constitutional amendment to be mentioned here is the creation of a further constitutional body, an institution to control Government or Parliament acts and judge their consistency with the concept of sustainability. It would be a special "sustainability watch organ". ^[74] In this regard, it is imaginable to officially lay down in the Constitution a (sub-)organ like the above-mentioned German Sustainability Council or the Parliamentary Advisory Committee for Sustainable Development. The advantage of such an institutionalization is the visible permanence of the commitment to sustainability. Besides, the long-term horizon that is inherent in the intergenerational component of sustainability clashes with the transient character of democracy – this is also arguing for an independence from particular governments and election pledges. The problem to bear in mind is that sustainability-related acts largely contain essential regulations and these should be made by the organs with the strongest democratic legitimation themselves, at least these should always have the final say. Such new organ could be constitutionally endowed with advisory power always leaving the definite decision to the democratically legitimated organ.

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VI. Concluding theses

This article meant to show that "sustainability" and "sustainable development" are no mere unsubstantial buzzwords, they are clearly not only empty phrases used for politicking, as it is criticized oftentimes. There are actual efforts behind it.

Beside the Governments’ activity in this regard, a strong involvement of elements of society ^[76] is key, the impression that only the State would create sustainability should not be evoked.

In any case, the article also meant to contribute to the worldwide discussion; for the sharing and propagation of ideas and an international exchange – in all directions – are valuable, if not indispensable. Approaches, strategies, and national policies in one country may serve as a suggestion for others and vice versa. All approaches, and the good and the bad experiences with them, should be made known to a broader public.

Especially since the globalisation of markets is proceeding and because of the global effects of some environmental impairments, there is no doubt that in many crucial points of the process an internationally coordinated action is essential, ^[77] for instance as to the reduction of greenhouse gas emissions, and should be continued with the highest priority.

In German Law, section 20a of the Basic Law is rather far-reaching, but a more general policy objective clause and some reference in the provisions concerning budget law are missing in Germany. A more profound enshrinement in the Basic Law is deemed recommendable. Additionally, an advisory (sub-)organ with special expertise could be laid down in the Constitution, with the restriction made above. Although the recent Governments have been active here in regard to sustainability as shown, such a securing and perpetuation on the constitutional level influencing all State decision has unfortunately never been promoted by the Government, and has obviously been perceived unnecessary. Yet, to achieve constant awareness and a higher degree of protection of future generations’ freedom, the suggested amendments to the Constitution should be reconsidered, much as the (now only factual) political commitment by the recent administrations has been meritorious. The constitutional order should be a stable, reliable constant, and to uphold legal certainty and faith in the constitutional law, it should not be changed to hastily and only be amended restrictively, if and to the extent to which it is indispensable. However, as the last conclusion of this article, it is ascertained that politicians should come to the realization that a sustainability clause in the Basic Law would do good: to bind oncoming governments, in the long run, to the complete idea of sustainability, and also as a thought-provoking impulse and signal.

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Notes

1. The text of the Declaration of Rio de Janeiro is available on: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (30/9/2009).
2. Extract from the Preamble of the Agenda 21, Chapter 1.3: Ò[...] Its successful implementation is first and foremost the responsibility of Governments. National strategies, plans, policies and processes are crucial in achieving this. [...]Ó
3. ÒThink global. Act local.Ó is the motto of the Local Agenda 21. Chapter 28.1 of the Agenda 21 reads: ÒBecause so many of the problems and solutions being addressed by Agenda 21 have their roots in local activities, the participation and cooperation of local authorities will be a determining factor in fulfilling its objectives. Local authorities construct, operate and maintain economic, social and environmental infrastructure, oversee planning processes, establish local environmental policies and regulations, and assist in implementing national and subnational environmental policies. As the level of governance closest to the people, they play a vital role in educating, mobilizing and responding to the public to promote sustainable development.Ó
4. Grundgesetz fŸr die Bundesrepublik Deutschland of 23^rd May, 1949, last amended on 29^th July, 2009 (Federal Law Gazette I 2248).
5. The term ÒsustainabilityÓ is usually translated with Nachhaltigkeit, Òsustainable developmentÓ is translated with nachhaltige Entwicklung.
6. G. Ketteler, Der Begriff der Nachhaltigkeit im Umwelt- und Planungsrecht, in: Natur und Recht, 2002, p. 513 et seqq. who analyses the significance of the term ÒnachhaltigÒ in different statutes. See also P. Sieben, Was bedeutet Nachhaltigkeit als Rechtsbegriff?, in: Neue Zeitschrift fŸr Verwaltungsrecht (NVwZ), 2003, p. 1173 et seqq.
7. http://www.bundesregierung.de/nn_486242/Content/DE/Artikel/2001-2006/2007/11/2007-11-27-konsultationen-zur-nachhaltigkeitsstrategie.html (30/9/2009).
8. StaatssekretŠrsausschuss, also called ãNachhaltigkeitskabinettÒ or ÒGreen CabinetÒ.
9. Gemeinsame GeschŠftsordnung der Bundesministerien, cf. paragraph 44.
10. Most of the bills have their origin in the ministerial administration before going into Parliament.
11. Earlier occurrences shall not be addressed in this article. In this regard, see H.-J. Menzel, Das Konzept der Ònachhaltigen EntwicklungÓ – Herausforderung an Rechtssetzung und Rechtspolitik, Zeitschrift fŸr Rechtspolitik (ZRP) 2001, p. 221 with further evidence.
12. Rat fŸr nachhaltige Entwicklung.
13. Gerhard Schršder held office from 1998 to 2005.
14. For example the organization of a youth essay-writing competition, film projects, photograph exhibitions, work shops.
15. CSR delineates the voluntary contribution of a private enterprise to sustainable development that exceeds compliance with the legal requirements. It stands for an enterprise’s responsible operation within its proper business (market), towards the environment and in relation to its employees and any stakeholders. See G. Ferreira de Araœjo, Sustainability Strategies, Vol. I, 2007, 105 et seqq., who refers to the ãcompany as one of the main protagonists of the modern worldÓ.
16. ÒCorporate Responsibility in a Globalised World – A German Profile of Corporate Social Responsibility: Recommendations of the German Council for Sustainable DevelopmentÓ (available in English on http://nachhaltigkeitsrat.de/projects/csr). Cf. also the Green Paper of the European Commission, "Promoting a European framework for corporate social responsibility, COM (2001) 366, Brussels 2001.
17. ÒPerspectives for GermanyÓ. Available on the German Federal Government’s web site: http://www.bundesregierung.de/nn_774/Content/DE/__Anlagen/2006-2007/perspektives-for-germany-langfassung,property=publicationFile.pdf (30/9/2009), in an English version.
18. ÒFortschrittsberichteÓ. The First Progress Report was published in November 2004.
19. ÒWegweiser NachhaltigkeitÒ, also in an English version on http://www.nachhaltigkeitsrat.de/uploads/media/Landmark_Sustainability_2005.pdf (30/9/2009).
20. Cf. the classification of sustainability strategies taken by H.-J. Menzel, l.c. (foot note 11), p. 224.
21. As they can be found in the Strategy Paper ÒPerspectives for GermanyÓ, 2002, p. 50-52.
22. (Bundes-)LŠnder is the denomination for the 16 federated states in the Federal Republic of Germany.
23. Cf. Perspectives for Germany, p. 132 et seqq.
24. Power generation by chemical reactions with hydrogen.
25. Area-wide use of thermostats in heating systems, airtight windows, insulation against loss of heat.
26. Cf. Perspectives for Germany, p. 177 et seqq.
27. Since 1994 the (formerly public law) German railway has been organized as a corporate enterprise under private law (called Deutsche Bahn AG) whose sole shareholder is the Federal Government, cf. section 87e of the Basic Law. At the moment, there is a political discussion about further reforms.
28. Cf. Perspectives for Germany, p. 205 et seqq.
29. Cf. Perspectives for Germany, p. 248 et seqq.
30. There are other countries, however, where this problem is not known, be it for high birth-rates or immigration.
31. Cf. Perspectives for Germany, p. 262 et seqq.
32. Cf. Perspectives for Germany, p. 276 et seqq.
33. Cf. Perspectives for Germany, p. 287 et seqq.
34. Cf. Perspectives for Germany, p. 299 et seqq.
35. In terms of Chapter 38 of the Agenda 21 (ÒInternational Institutional ArrangementsÓ), there already exists the United Nations Commission on Sustainable Development today as a functional commission of the UN Economic and Social Council (ECOSOC) since 1992. It monitors the implementation of resolutions in the UNCED follow-up process, that is to say the Agenda 21. It is subordinated to the General Assembly and has no competence to make proper decisions that would be authorative under international law.
36. Like the Development Policy of the Federal Republic of Germany called ÒAktionsprogramm 2015Ó which was presented in 2001.
37. More precisely: the European Council (also referred to as a European Summit), an intergovernmental organ composed of the member states’ leaders and the President of the (executive) European Commission. According to section 4 of the Treaty on European Union it shall provide the Union with the necessary impetus for its development and has the competence to determine the general political guidelines for the Union.
38. Last reviewed version: COM (2009) 400, Brussels 2009. Available on: http://ec.europa.eu/sustainable/welcome/index_en.htm (3/11/2009).
39. The European Union Emission Trading Scheme is the largest multi-national, greenhouse gas emissions trading scheme in the world and was created in conjunction with the Kyoto Protocol. See the Directive 2003/87/EC of the European Parliament and of the Council that has been transferred into national law, Official Journal of the European Union, 2003, p. 32 et seqq.
40. Cf. Perspectives for Germany (short version) p. 12-13.
41. See the report available for download (yet partly only in German language) on http://www.bundesregierung.de/nn_658634/Webs/Breg/nachhaltigkeit/DE/Berichte/Berichte.html (30/9/2009).
42. Parlamentarischer Beirat fŸr nachhaltige Entwicklung. For further information on the committee (its members, agenda, press releases, and actual hearings) see http://www.bundestag.de/bundestag/ausschuesse/gremien/beirat_nachhaltigkeit/index.jsp (30/9/2009) and Bundestag Printed Paper 16/1131.
43. Perspectives for Germany, p. 3 and 54 et seqq.
44. Everyone can submit comments on the Government’s web site (cf. foot note 17).
45. Such elevated requirements can be found in most constitutions, however, with different majorities. The provision corresponds to section 60 of the Brazilian Federal Constitution, where a 60% majority in both houses of the National Congress is sufficient. In contrast, a statutory law usually requires only a simple majority in parliament (cf. sections 42 para. 2 and 76 of the Basic Law).
46. The Bundestag is a federal chamber of legislation constituted by delegates who are one half elected directly by the people and the other half sent by the polical parties corresponding to the share of obtained votes. The Bundesrat is a federal chamber constituted by members of the 16 LŠnder Governments to represent their interests within the federation. In the process of law-making the organs work together according to sections 76 et seqq. of the Basic Law.
47. The Brazilian Federal Constitution of 1988 is much more elaborate in regard to sustainability than the German Constitution. Section 225 deals elaborately with nature protection, 170 VI deals with the economic order that has to take the environment into account and there is a detailed dedication to social welfare in many parts of the constitutional text.
48. See for example: Section 71 of the Polish Constitution, section 24 of the South African Constitution.
49. Section 225, caput, of the Brazilian Federal Constitution: ÒTodos tm direito ao meio ambiente ecologicamente equilibrado, bem de uso comum do povo e essencial ˆ sadia qualidade de vida, impondo-se ao Poder Pœblico e ˆ coletividade o dever de defend-lo e preserv‡- lo para as presentes e futuras gera›es.Ó
50. Section 66 of the Portuguese Constitution.
51. Cf. the regulation for the constitutional complaint (ÒVerfassungsbeschwerdeÓ) in section 93 no. 4a of the Basic Law in combination with sections 90 et seqq. of the Federal Constitutional Court Act.
52. H. Jarass and B. Pieroth, Grundgesetz fŸr die Bundesrepublik Deutschland, 8th ed., 2006, margin no. 2 to sec. 20a.
53. For the later introduction, reasons and contents of the animal protection see S. Braun, Tierschutz in der Verfassung – und was nun? Die Bedeutung des neuen Art. 20a GG, in: Die …ffentliche Verwaltung (D…V), 2003, p. 488 et seqq.; J. Caspar/M. Geissen, Das neue Staatsziel ÒTierschutzÓ in Art. 20a GG, in: Neue Zeitschrift fŸr Verwaltungsrecht (NVwZ), 2002, p. 913 et seqq.
54. H. Jarass and B. Pieroth, l.c. (foot note 52), margin no. 4 to sec. 20a.
55. H. Jarass and B. Pieroth, l.c. (foot note 52), margin no. 10 to sec. 20a.
56. Section 79 of the Basic Law.
57. In this regard, Constitutions differ considerably: In the Brazilian Federal Constitution, there are social individual rights (detailed sections 6 to 11) and there is a chapter on the social order (sections 194 to 204).
58. A useful commentary as to the contents of the principle: K.-P. Sommermann in: vMangoldt/Klein/Stark, Grundgesetz, Vol. II, 4. ed., 2000, marginal no. 102-106 to sec. 20, where it is suggested to refer to the principle as enabling state rather than welfare state.
59. R. Gršschner in: H. Dreier (ed.), Grundgesetz Kommentar, Vol. II, 2^nd ed., 2006, margin no. 59 to sec. 20.
60. Cf. Federal Constitutional Court, Official Compilation, Vol. 4 (1954), p. 7 et seqq.
61. Sections 170 to 181 contain regulations about ÒGeneral principles about economic activityÓ.
62. Speaking of the rule of proportionality, in many cases it can be considered more appropriate to encourage or incentivize the economy to voluntary self-commitments and to monitor the results than to enjoin strict regimentation under threat of persecution.
63. By the time the Constitutional Court makes a decision after an elaborate control, many years may have passed (for example, when the 1981 budget was challenged, the final decision was passed only in 1989). The Budget Act may be declared unconstitutional then, but the too high borrow would have occurred nonetheless. Besides, the Court grants a wide scope for judgment to the budget legislation, cf. H. Jarass and B. Pieroth, l.c. (foot note 52), margin no. 5 to sec. 115.
64. H.-J. Menzel, Das Konzept der Ònachhaltigen EntwicklungÒ – Herausforderung an Rechtssetzung und Rechtsanwendung, Zeitschrift fŸr Rechtspolitik (ZRP), 2001, p. 221 (225 et seq.): The rules are ãanachronistic and in need for revisionÒ.
65. M. Kotulla, Umweltgesetzgebungskompetenzen und ÒFšderalismusreformÓ, Neue Zeitschrift fŸr Verwaltungsrecht (NVwZ) 2007, 489 et seqq. who also explains the changings in the repartition effected by the reform of federalism in the year 2006.
66. In this point the Brazilian and the German legal system bear resemblance, cf. section 25 of the Brazilian Federal Constitution.
67. H. Schulze-Fielitz in: H. Dreier (ed.), Grundgesetz Kommentar, Vol. II, 2^nd ed., 2006, margin no. 20 to sec. 20a.
68. G. Ketteler, l.c. (foot note 6), p. 514.
69. Frankfurter Allgemeine Zeitung, 15^th July, 2006, p. 4.
70. Reform of Federalism, the largest constitutional reform in the history of the Federal Republic of Germany according to the amendment of 28^th August, 2006 (Federal Law Gazette I 2034).
71. Statement of the Social Democrat delegate F. Pronold, in: Frankfurter Rundschau, 15^th July 2006.
72. Criticism pronounced by left-wing party DIE LINKE delegate N. Hirsch, in: taz, 15^th July 2006.
73. J. Tremmel, Generationengerechtigkeit in der Verfassung, in: Aus Politik und Zeitgeschichte, 2005, issue 8.
74. Be it as a ãthird chamberÒ, as a ãFuture CouncilÒ or an ãOmbudsmanÒ; cf. the suggestions of J. Tremmel, Institutionelle Verankerung der Rechte nachrŸckender Generationen, in: Zeitschrift fŸr Rechtspolitik (ZRP) 2004, p. 44, who describes the approaches for regulation models in different countries.
75. Cf. section III of the Agenda 21 (Chapters 23 to 32) that addresses ÒMajor GroupsÓ.
76. Cf. the response of the Sustainability Council to the Progress Report of 2004: http://www.nachhaltigkeitsrat.de/uploads/media/RNE_Stellungnahme_Fortschrittsbericht_2004_01.pdf (4/11/2009).