Should we legislate on the right of future generations?

Should we legislate on the right of future generations?

In this image, Cambodian children in Phnom Pehn play in an area confiscated by the government, on the lakeshore of the area where they once lived.

(Laura Villadiego)

The Iroquois, a Native American people, are governed by a principle that is virtually unique in our world: every decision taken today must consider the impact on the next seven generations. In other words, current actions must ensure sustainability for the generation living in around 140 years from now.

In a world where the sixth mass extinction of species is already underway and where there is ever diminishing hope of the climate emergency not having disastrous consequences, the ability to think about the rights of unborn generations sounds utopian. “They [the Iroquois] are ahead of us in this respect. Western civilization has not given it any serious thought until quite recently,” says Sébastien Jodoin, assistant professor at the Faculty of Law at McGill University in Canada. “We have developed a world that serves the interests of present generations and compromises the interests of future generations,” he continues.

International law has nonetheless slowly but surely been incorporating the principles of intergenerational justice over recent decades.

The founding charter of the United Nations, signed in 1945, already referred to the generations to come and the need to save them from the “scourge of war”. The 1972 Stockholm Declaration was to take up the concept again and underlined the “solemn responsibility to protect and improve the environment for present and future generations”.

But it was the concept of ‘sustainable development’, formulated in the late 1980s and adopted at the 1992 Rio de Janeiro Earth Summit, that was to be one of the most decisive steps in this direction. “The right to development must be fulfilled so as to equitably meet the developmental and environmental needs of present and future generations,” says Article 3 of the Rio Declaration on Environment and Development adopted at the summit. A year later, the Supreme Court of the Philippines went one step further and recognised future generations as “legal persons” in a case on timber licenses. In 1997, the United Nations also approved a declaration on “the responsibilities of present generations towards future generations” which refers to principles such as the preservation of life on earth, environmental protection, cultural diversity and peace.

Since the beginning of the 21st century, international declarations have given rise to mentions of future generations or intergenerational justice in a growing number of national constitutions. More than 60 countries now have some reference to future generations in their charters, which “shows that this is really becoming something legislators are taking an interest in,” according to Sebastian Duyck, senior attorney for the Climate and Energy Program at the Center for International Environmental Law (CIEL).

In several countries, specific tools have also emerged in response to concerns about the right to intergenerational justice, adds Duyck. In 2007, Hungary, for example, established an Ombudsman for Future Generations. Environmental impact studies are also a mechanism being adopted by an ever growing number of countries. “It is a very procedural tool. But it’s a powerful one, because it’s something that has to be taken seriously [for a project to be approved],” explains Duyck. And although these principles have primarily been applied to the environment so far, they can also be applied to issues such as debt or pension funds, says the jurist.

Despite its potential, intergenerational justice has been slow to develop because it sits uncomfortably with some of the principles of mainstream international law. “Legal systems in general are not very good at dealing with future damages and impacts,” says Jodoin. Our legal systems, he explains, have been designed to prove that someone has suffered damage and that a specific person or entity has caused that damage, a difficult task when the damage is potential. Moreover, when the damage has not yet been done, the question arises as to who stands as a plaintiff. “They are obstacles that are not insurmountable but they have their risks,” says Jodoin, using the example of the pro-life movement. “There have been attempts to have the rights of unborn children recognised as part of anti-abortion initiatives,” he explains.

A pathway opening up in the courts

Certain forests or rivers, like the Amazon rainforest and the Amazon River, are so important for the survival of millions of people that they are considered entities in their own right in the collective imagination. And yet the Supreme Court of Colombia’s 2018 ruling recognising the Amazon as an entity with rights was considered historic and unprecedented.

The decision came in response to a complaint by 25 children who considered that the Colombian state was not doing enough to preserve the jungle from increasing deforestation. According to the court, damage to the Amazon constitutes “imminent and serious damage to all Colombians, to both present and future generations, because it uncontrollably releases carbon dioxide into the atmosphere, producing the greenhouse effect, which transforms and fragments ecosystems, and alters water resources,” says the ruling. To make sure that the government took concrete measures, the ruling compelled it to draw up an Intergenerational Pact for Life in the Amazon (known as PIVAC), aimed at bringing deforestation and greenhouse gases down to zero.

The courts are becoming a powerful weapon for implementing intergenerational justice and ensuring that it does not become an isolated legal silo, says Duyck. “What we have to look at is how we can use intergenerational justice to achieve different judicial outcomes to those we would have if it were not taken into account,” says the CIEL attorney.

Jodoin agrees that we are likely to see a surge in such rulings, especially those related to environmental issues, in the near future. “I think we are set to see several cases around the world that are going to make it easier to defend the rights of future generations,” says Jodoin.

The international agreements signed within the framework of climate change summits organised by the UN will also provide a stronger legal basis for the defence of the environment in the courts. One example is the recent case seen in the UK, where a court suspended plans to expand Heathrow airport because it would undermine the country’s ability to meet the 2015 Paris Agreement goals. “It was a procedural case, not so much about the impact on future generations...but it was also easier because the UK is one of the first countries to adopt a climate change law,” he says.

For Jodoin, environmental advocacy, strictly speaking, is no longer a question of intergenerational justice. “The right of future generations is not as necessary as it used to be, because the climate emergency is already here, is it not?” says the lawyer. “It is no longer about the rights of a future generation. It’s about our own rights, here and now.”

This article has been translated from Spanish.