The constitutionalisation of the climate emergency and the strains on the European ordoliberal model: reflections in light of recent international and comparative case law

Abstract

This article examines an ongoing process through which the “climate emergency” ceases to function as a merely descriptive frame and becomes a constitutional-legal category capable of reshaping standards of state responsibility, techniques of judicial review, and ultimately the criteria of public legitimacy. It argues that this juridification is atypical: it does not stem primarily from a comprehensive and uniform legislative codification, but rather from the interplay of soft law, doctrinal developments, and—above all—national and international case law, largely driven by strategic climate litigation. Within this trajectory, the Inter-American Court’s Advisory Opinion OC-32/25 plays a central role, marking a paradigm shift compared with OC-23/17. While OC-23/17 established that the right to a healthy environment requires procedural guarantees in order to be effective, OC-32/25 preserves that core while adapting it to the climate context: it treats access rights (information, participation, and justice) as conditions of legitimacy and reasonableness for state climate action, given the complexity of decision-making and the intergenerational and transboundary distribution of burdens and benefits. Moreover, OC-32/25 takes a qualitative step by outlining a legal status for climate and the environment that includes a right to a healthy climate, a notion of transboundary climate harm, and a heightened due diligence standard, going so far as to argue for the consolidation of a peremptory prohibition of massive and irreversible environmental damage, linked to erga omnes duties of cooperation. This evolution fits within a broader jurisprudential trend inaugurated by the leading ECtHR judgement on the López Ostra case: pressure from domestic courts (e.g., Urgenda, the German Federal Constitutional Court climate ruling, or France’s Grande-Synthe) and the recent case law of the European Court of Human Rights (KlimaSeniorinnen and the inadmissibility decisions in Duarte Agostinho and Carême) reveal an intensifying “jurisprudential tension” around positive obligations, standing, and judicial control. Against this background, the article reframes the European debate through the lens of the economic constitution and ordoliberalism: the shift from a predominantly anthropocentric approach toward structurally binding ecological limits is not a simple “market versus nature” conflict, but rather a challenge of institutional design under radical uncertainty and irreversible risks. The core conclusion is that the climate emergency cannot be addressed through a mere change of labels, but through an architecture of rules and guarantees that strengthens transparency, informed participation, accountability, and open competition, thereby avoiding both technocratic drift and populist reactions that undermine legitimacy and climate effectiveness at the same time.