Giulia Battistoni, SAFI President (Marie Skłodowska-Curie Global Fellow, University of Verona)
This is part two of a two-part blog post series, read part one here.
Ferrajoli’s Proposal
Building on this well-developed and well-founded theoretical framework, Ferrajoli presents the Draft Constitution for the Earth, consisting of 100 articles, divided into two main parts:
Part I: The Foundational Principles[1]section defines the goals and purpose of the Constitution:
- Title I, Supreme Principles, establishes the Earth Federation’s primary objectives – peace, environmental protection, safeguarding vital resources, banning destructive goods, and ensuring fundamental human rights and equality before the law.
- Title II, Fundamental Rights, recognizes human rights already outlined in major international declarations but often violated under despotic regimes.
- Title III, Fundamental Goods, represents a groundbreaking addition, since it creates a global commons system to protect air, clean water, forests, and to ensure universal access to essential goods like life-saving medicines. This also includes safeguarding personal integrity, such as the protection of the human body.
- Title IV, Illicit Goods, bans the production, trade, and possession of harmful goods, such as weapons and other destructive materials.
Part II: The Global Institutions and Implementation[2]section outlines the institutions responsible for enforcing the Constitution’s goals:
- Title I, Earth Federation, defines its role and functions, ensuring a framework for global governance.
- Title II, Global Institutions and Governance, expands on existing UN institutions, such as the General Assembly, Security Council, and Economic and Social Council, while emphasizing that national governments should retain control over domestic governance.
- Title III, Primary and Secondary Guarantee Institutions, deals with:
- Primary Guarantees, with the aim of strengthening institutions like WHO, FAO, and UNESCO, while introducing new bodies such as an International Human Rights Council. This title also proposes dissolving national armies and establishing a planetary commons system for nature conservation.
- Secondary Guarantees, with the aim of expanding the jurisdiction of the International Court of Justice and the International Criminal Court to cover freedom violations by despotic regimes and violence restricting fundamental rights. It also establishes two new courts: a Global Constitutional Court and an International Court for Systemic Crimes to investigate large-scale violations.
- Title IV, Economic and Financial Institutions, calls for reforming global financial bodies like the World Bank and IMF, creating a global budget and taxation system to redistribute wealth, protect the environment, and transfer the debt of poorer nations to the Earth Federation as compensation for historical exploitation by wealthier countries.
Challenges to Ferrajoli’s Proposal
Ferrajoli’s ambitious Constitution for the Earth presents a thought-provoking, well-structured and compelling framework for global justice, offering a valuable contribution to the discourse on international law. However, its implementation faces significant practical challenges that could hinder its feasibility. In the final part of this article, I seek to critically engage with them, recognizing the strength and relevance of Ferrajoli’s proposal while addressing the concrete obstacles that might arise in practice. My aim is to foster public awareness and stimulate deeper reflection among experts, encouraging the search for practical solutions to translate this rich and visionary proposal into reality.
- Defining Systemic Crimes and Responsibility for a Stronger Global Justice Framework – Ferrajoli’s concept of systemic crimes risks remaining vague, given the indeterminate nature of actions and consequences, as well as the collective nature of both perpetrators and victims.[3] Moreover, it seems to me that a parallel rethinking and reinforcement of the concept of responsibility and its criteria in such cases is also necessary; otherwise, enforcement seems nearly impossible.[4] Beyond acknowledging criminal law’s limits, as Ferrajoli does, its potential should also be explored. Criminalizing environmental harm and imposing severe penalties could serve as a strong deterrent. The 2024 European Environmental Crime Directive marks significant progress, introducing “qualified offenses” –such as large-scale wildfires or severe pollution –punishable by up to 10 years in prison, with EU-wide by 2026.[5] Meanwhile, efforts to recognize ecocide as an international crime under the Rome Statute continue, seeking to bring it under the jurisdiction of the International Criminal Court.
- The Unresolved Dialectic between Supranational Jurisdiction and National Sovereignties – Ferrajoli envisions a global federation that overrides national sovereignty, yet history shows deep resistance to such shifts. Even within Europe, unity has faced setbacks and tensions. The biggest obstacle? Political, economic, and financial elites who may refuse to submit to international law. Concrete examples illustrate this challenge. On April 9, 2024, the European Court of Human Rights made history by condemning Switzerland for climate inaction, siding with a group of elderly women (Verein KlimaSeniorinnen). Yet, soon after, the Swiss Senate’s legal committee rejected the ruling, citing democratic principles – since Swiss voters had already rejected a stronger climate law in a 2021 referendum.[6] Other cases reveal the struggle to transcend national sovereignty: 2.1. Healthcare unification faces major hurdles due to the divide between public and private models. The U.S. privatized system is influencing other nations, making global coordination even more challenging. If countries can withdraw from the WHO – as Trump did on January 20, 2025 – how can global health governance be strengthened?[7] 2.2. Banning illicit goods, such as arms, collides with reality and national interests. The U.S., a major arm producer, has a deeply ingrained gun culture, making international restrictions nearly impossible to enforce. 2.3. Implementing fundamental rights in authoritarian regimes remains a major challenge. How can fundamental rights take hold in places like Afghanistan, where architecture itself is weaponized – such as the removal of windows to keep women hidden?[8] These dilemmas echoe Alexandre Kojève’s Esquisse d’une phénoménologie du Droit (1943, published in 1981). He argued that international law applies to sovereign states, but sovereignty itself prevents external enforcement – creating a paradox. True global law would require the abolition of sovereignty, transforming international law into domestic law within a global federation. Kojève envisioned such a federation where states retain autonomy but not sovereignty, allowing it to impose legal obligations on its members just as a state enforces its own domestic laws on citizens. Ultimately, this would evolve into a Universal Legal Order, encompassing all of humanity without external enemies.[9] Ferrajoli’s proposed constitution undoubtedly marks significant progress in this direction, yet it still grapples with inevitable internal contradictions, as the tension between supranational jurisdiction and national sovereignty remains unresolved.[10] The path to global governance still demands deeper reflection.
- Breaking the Grip of Economics and Market on Politics – Can economic power be kept in check when global markets dictate national policies and multinationals hold immense influence? The groundbreaking 2021 Dutch ruling that first held a multinational accountable for violating the Paris Agreement was overturned in 2024. The accused oil company, Shell, argued that the decision was based on political considerations, rather than on legal reasoning, highlighting how much progress is still needed.[11] As for a global tax system, a crucial question remains:if national tax systems struggle with inefficiencies and evasion, how could a global fiscal framework succeed?
- The Paradox of Individual Rights and Their Unseen Violations – Ferrajoli highlights a fundamental paradox: individual fundamental rights alone may fail to protect the environment from the unchecked power of economic and political forces. Climate devastation is not always perceived as a direct threat to health or common goods, leading to denial, fatalism, or political inaction. Yet, awareness is growing. A recent study shows that 80% of 75,000 people interviewed in 77 countries are seriously concerned about the climate crisis, demands stronger government action, and has even begun taking legal action against governments for their inaction.[12]
A Regulative Ideal Waiting to Be Fulfilled
Ferrajoli acknowledges his project as a Kantian “regulative ideal” – a vision of what should be. Yet, without a concrete strategy to unite nation-states against their true common enemy, it risks remaining utopian. That enemy is no longer another state, but time itself – the ticking clock marking the final moments before environmental collapse becomes irreversible. Without a global awakening – a Kantian awakening of reason to lift us from the self-imposed, culpable ignorance of our reality –, the metastasis Ferrajoli describes will continue, making any future cure impossible.[13]
2025 will be pivotal, as the International Court of Justice will deliver an Advisory Opinion on the obligations of states in addressing the climate crisis. Initiated in 2024 at the UN’s request, the case asks: What legal duties do states have under international law to limit greenhouse gas emissions and protect the planet? What are the legal consequences when their actions – or inaction – cause significant harm to the climate system?[14] Such an Advisory Opinion will not impose direct legal obligations on states. However, it carries significant political and legal weight, as it shapes international law and can guide United Nations bodies. Moreover, it may even influence domestic laws and national policies. The Court walks a fine line – reaffirming existing principles may have little impact, while imposing strict mandates risks being seen as judicial overreach. If «the most effective approach for generating impact might be to provide clear interpretative frameworks while leaving room for domestic institutions to determine specific applications»,[15] then Ferrajoli’s work is already a major step forward – one that demands global recognition and further discussion.[16]
Dr. Giulia Battistoni is SAFI President. She is currently Marie Skłodowska-Curie Fellow at the University of Verona and, over the past two years, has worked at the Boston University and Friedrich-Schiller Universität Jena. She is conducting research funded by the European Union on “Collective Responsibility towards Nature and Future Generations”. Her research interests have always focused on human agency, responsibility, and imputation, particularly in relation to Classical German Philosophy (Hegel), Hans Jonas’ ethics of responsibility, and discourse ethics (Jürgen Habermas and Karl-Otto Apel). She is also currently delving into Jonas’ philosophical biology and the Romantic and Idealist philosophies of nature to develop a conception of nature and the human being that can serve as a foundation for rethinking their fruitful relationship in terms of environmental ethics.
[1] This section defines Earth as the “common home of all living beings” (Art. 1), a living planet in line with biocentrism, ecocentrism, and the Romantic-Idealist Weltorganismus – a dynamic entity belonging to both present and future generations. Humanity is seen as part of nature, its survival bound to the natural world, emphasizing global interdependence. As the “people of the Earth”, humans bear collective responsibility for preserving life across generations. This Jonas-inspired vision raises a key question: should future generations have legal personhood? The concept of “Earth Citizenship” (Art. 5) establishes a universal legal status for all human beings. War is deemed “the greatest crime against humanity” (Art. 6), while genetic manipulation is restricted to therapeutic use, and AI must never violate human dignity. A “right to disobey” (Art. 24) allows resistance against unlawful orders involving violence or rights violations. The right to health is affirmed, guaranteeing free access to essential medical care (Art. 26). Finally, Article 54 prohibits any activity causing irreversible environmental harm, disrupting ecological processes, or destroying biodiversity.
[2] Article 59 states that «The Federation of the Earth is open to the accession of all member states of the United Nations and existing states» (added emphasis). This raises a key issue: if participation is voluntary, can the Federation be effective? Yet, making it mandatory would inevitably infringe on national sovereignty, underscoring the delicate balance of power at play.
[3] See L. Ferrajoli, Per una Costituzione della Terra, p. 45.
[4] In recent years, there have been significant efforts in this direction – both to rethink the subject of responsibility in a collective sense and, more broadly, to develop a concept of global responsibility, as well as to explore the possibility of recognizing new legal subjects. See, among others: B. Martin/L. Te Aho/M. Humphries-Kil (eds.), ResponsAbility. Law and Governance for living well with the Earth, Routledge, London/NY 2019; S. Bazargan-Forward/D. Tollefsen (eds.), The Routledge Handbook of Collective Responsibility, Routledge, London/NY 2020; T. Scavenius, Political Responsibility for Climate Change. Ethical Institutions and Fact-Sensitive Theory, Routledge, London/NY 2020; F.-C. Kring, Responsibility to protect (2P) revisited. Towards climate change-related obligations of states?, Berliner Wissenschafts-Verlag, Berlin 2020; A. Kumar Giri, The Calling of Global Responsibility. New Initiatives in Justice, Dialogues and Planetary Realizations, Routledge, London and NY 2023. See also: Ilpost.it.
[5] See: Environment.ec.europa.eu.
[6] See: Echr.coe.int; Eunews.it; Admin.ch.
[7] See: Reuters.com.
[8] See: TheIndependent.com.
[9] See the part devoted to International Law in A. Kojève, Esquisse d’une phénoménologie du Droit, Gallimard 1982.
[10] I refer in particular to the following articles: «Sovereignty belongs to the people of the Earth and no one else. No constituted power may appropriate or usurp it» (Art. 33). Art. 34 rightly affirms the right of peoples to self-determination, both internal and external – allowing them to freely decide their civil, political, economic, and cultural development – but appears difficult to reconcile with the idea of supranational sovereignty. In case of conflict, should supranational authority override national sovereignty, potentially undermining democracies and governments? Or should national sovereignty prevail, risking the failure of global objectives? The Constitution suggests that supranational authority ultimately takes precedence, as Art. 47 states: «Against violations of the rights established by this Constitution, individuals and, through their representatives, affected peoples, have the right to appeal – if justice is denied or unavailable within national territories – to the global jurisdictions established by this Constitution».
[11] See: Reuters.com; Internazionale.it.
[12] See: Internazionale.it.
[13] There are also positive examples: in September 2024, the UK shut down its last coal power plant – a significant milestone, given coal’s historical role in the country’s economic development. Over the years, the UK has gradually transitioned to renewable energy sources, successfully replacing coal. See: Internazionale.it. Meanwhile, Australia has approved the construction of the world’s largest solar farm, capable of generating enough energy to power three million homes. See: Internazionale.it.
[14] See: Internazionale.it.
[15] See The Advisory Opinion Could Reshape Global Climate Governance, in Verfassungsblog.de.
[16] For the writing of this text, I am grateful for the discussions and exchanges I had with my colleagues and friends – experts in philosophy, law, and economics: Kristin Y. Albrecht, Gabriele Civello, Alma Diamond, Chiara Magni, and Mattia Martini. I am also thankful to Professors Chiara Ghidini and Giampiero Moretti of the University of Naples l’Orientale, who, knowing my studies, encouraged me to actively engage with Luigi Ferrajoli’s remarkable volume. This essay is part of the project Collective Responsibility towards Nature and Future Generations (ReNa), that has received funding from the European Union’s Horizon Europe Research and Innovation Programme under the Marie Skłodowska-Curie. Grant agreement No 101064728. Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Research Executive Agency (REA). Neither the European Union nor the granting authority can be held responsible for them.