Search

In this contribution, I tried to answer the question what, in the Anthropocene, is or can be the role of the concept of sustainable development and the associated principles of environmental law. In order to get an answer to this question, I first assessed the current impact of the principles of environmental law, relying on legal texts and case law, and then discussed what is needed for the future, relying on Earth Systems governance and Anthropocene governance literature. Although a growing impact of the principles of environmental law, such as the principle of sustainable development, the cooperation principle, the integration principle and the precautionary principle is visible, their role remains weak. They do not fundamentally determine the direction and content of all policies and laws. Yet, these existing principles, in theory, can steer governance into the needed Earth Systems approach, focusing on remaining within the planetary boundaries. The principle of sustainable development, as the overarching, lead-principle is very well geared towards a holistic, planetary approach. The cooperation principle requires all actors, including non-state actors, to work together with the aim to preserving the Earth Systems. The precautionary principle is important because the complexity, uncertainty and surprise associated with an Earth Systems approach and with a focus on planetary boundaries, require decision-makers to be much more aware of their limitations and, thus, exercise precaution. The integration principle, which is closely linked to, and perhaps forms part of the principle of sustainable development, requires the integration of environmental considerations into all relevant decision-making processes, particularly those aimed at socio-economic development, thus enabling humans to remain within the planetary boundaries. How we can make sure that these principles do indeed steer governance into such a direction I did not discuss in detail, but it is safe to argue that a radically stronger normative and legal power of the principles is needed, safeguarded by all legal institutions at all levels of governance across the planet. Such a new, global focus of cooperation warrants the adoption of a new principle: the principle of common concern. Other new principles that determine future law and governance that may be needed too, especially given the fact that we already crossed some of the planetary boundaries, are the principles of resilience and enhancement.

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.