Future Generations and International Law

Emmanuel Agius, Salvino Busuttil

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781317971771
• Topic: Politics & International Relations
• Subtopic: Ecology
• Index: Politics & International Relations

Sustainable development requires consideration of the quality of life that future generations will be able to enjoy, and as the adjustment to sustainable lifestyles gathers momentum, the rights of future generations and our responsibility for their wellbeing is becoming a central issue. In this, the first book to address this emerging area of international law, leading experts examine the legal and theoretical frameworks for representing and safeguarding the interests of future generations in current international treaties. This unique volume will be required reading for academics and students of international environmental law and policy.

Emmanuel Agius is Senior Lecturer at the Faculty of Theology and Coordinator of the Future Generations Programme at the Foundation for International Studies, University of Malta. Salvino Busuttil is former Director General of the Foundation for International Studies.

Future Generations and International Law is the seventh volume in the International Law and Sustainable Development series, co-developed with FIELD. The series aims to address and define the major legal issues associated with sustainable development and to contribute to the progressive development of international law. Other titles in the series are: Greening International Law, Interpreting the Precautionary Principle, Property Rights in the Defence of Nature, Improving Compliance with International Environmental Law, Greening International Institutions and Quotas in International Environmental Agreements.

'A legal parallel to the Blueprint series - welcome, timely and provocative'
David Pearce

Originally published in 1997

PART 1

Philosophical Reflections

1	OBLIGATIONS OF JUSTICE TOWARDS FUTURE GENERATIONS: A REVOLUTION IN SOCIAL AND LEGAL THOUGHT
	Emmanuel Agius

An impressive series of conventions, charters, documents, agreements and treaties adopted by international conferences and international organizations, in particular the United Nations, some of which deal with global issues and others which are regional in their application, reflect concern for the future of humankind and set forth principles or obligations intended to protect and enhance the well-being of both present and future generations. Since the 1972 Stockholm United Nations (UN) Conference on the Human Environment, most countries, whatever their political systems or levels of economic development, have in general shown a remarkable willingness to adopt new rules to regulate environmental issues. Many of these environmental policies specifically single out the responsibilities of the present generation to bequeath to posterity a world worth living in.

Beyond doubt, the 1992 Rio Earth Summit represents the first international effort to safeguard the quality of life of posterity. It is indeed remarkable that the three major documents signed at Rio, namely, the Rio Declaration, the Convention on Biological Diversity and the Convention on Climate Change incorporate the concept of intergenerational solidarity and responsibilities. Moreover, the preamble of the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights (1993) recalls the determination of the UN to save succeeding generations from the scourge of war. Then, Article 6 of the same Declaration stipulates that the right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. Recent attempts to develop a precautionary principle in international law also reflect concerns about the effects of our actions today on the environment of future generations. The principle attempts to answer the question of when to constrain activities that risk harming the environment in the future.

International policies on environmental issues have recently undergone very substantial and rapid development. One of the most striking features of many present-day national and international environmental policies is the promotion of our obligations to unborn generations as a matter of justice. Traditionally, justice was defined as “giving to everyone his due”. It is claimed that in environmental issues the present generation is obliged in justice to render what is due to unborn generations. Beyond doubt, the discourse of intergenerational justice marks a fundamental shift in the paradigm of international environmental policy.

Much of the recent discussion on future generations among philosophers is taken up with the attempt to ground our responsibilities in a normative ethical theory. This is seen as important because an ethical theory can give us criteria for evaluating whether a proposed action is right or wrong. Does it make sense to speak of justice between generations? Can our responsibilities to posterity be grounded on justice? Can a theory of intergenerational justice adequately frame our moral intuition not to leave a plundered world to our descendants? Evidently, the discourse on justice leads us to the language of rights and duties. If something is claimed as a matter of justice, it implies that one’s right to obtain that object must be respected. But can a non-existent person claim something as his/her right? Can we have duties to persons who do not yet exist?

Some philosophers claim that in stipulating obligations of justice towards future generations, we argue on duties towards human beings who are not yet born and whom we cannot “see” as individual persons. We have no material relations at all with them. How can a moral commitment exist towards these shadowy figures? How can we grant moral status to people who do not yet exist or who might even not exist at all? How can we rationally ground our obligations to unborn generations whose identity is dependent or contingent on so many factors? There certainly is, in daily life, an irrational preference for that which is proximate in space and time. This preference can be tested in those instances when it is quite clear that the needs of the present can only be met by neglecting the needs of the future. I think that one can say that present-day official discourse in environmental context does not consider mere temporal distance as a sufficient reason to diminish the weight of the interests of future generations. It is quite another matter, of course, that contemporary environmental policies aim to shape an economic state of affairs (the notion of ‘sustainability’) which avoids the sacrifice of the future for the present.

In this chapter my claim is that our moral obligations to future generations are rooted in a concept of social justice redefined from an intergenerational perspective. First, Rawls’ theory of justice is discussed critically in order to demonstrate its shortcomings to frame adequately the newly awakened sense of responsibility towards generations yet to be born. Then, I argue that what we need in order to speak meaningfully about justice between generations is the elaboration of a theory of a just community which encompasses a broader dimension of time horizon. The traditional concept of social justice is challenge by a new philosophical vision of reality characterized by interrelatedness and interdependence. It is only such a “generality of outlook”, to use A.N. Whitehead’s own words¹ to describe the vision of an interrelated and interdependent reality, that leads us to a “morality of outlook” with its implied notion of social justice broadened to encompass the community of humankind as a whole, extending beyond present space and time.

RAWLS’ CONCEPT OF JUSTICE BETWEEN GENERATIONS

In 1972 John Rawls published A Theory of Justice. A number of writers have explored the Rawlsian approach for its potential as a base for our responsibilities towards future generations. Rawls’ theory is “contractarian”, that is, it belongs to an ethical tradition where moral behaviour is seen as that mutually agreed on by members of society; moral behaviour is the product of a social contract.

Rawls’ theory of “justice as fairness” gives due consideration to the question of justice between generations. As Rawls himself admits, “the account of justice as fairness would be incomplete without some discussion of this important matter.”² He claims that a theory of justice has to apply to all members, whether they are living now intratemporally or intertemporally.³ In other words, he claims that the theory of justice has to apply not only to one group of people, or to one generation, but to all generations. Rawls lists three rights which all generations can claim from their predecessors. All generations have the right to an appropriate rate of capital saving, to the conservation of natural resources and the natural environment, and to a reasonable genetic policy.

Given that all generations have equal rights and that no generation has stronger claims than any other, how does Rawls’ theory of justice approach the issue of the rights of future generations and the obligations which every generation has towards the future? To what extent is the present generation bound to respect the claims of its posterity? How far in time does the pattern of rights and duties between the present and future generations, arising out of the relationship of justice as fairness, actually extend? Are the claims of all generations protected? In other words, does the concept of justice as fairness and its corollary notions of rights and duties extend to all generations? One would expect that the pattern of rights and duties apply to all the contracting members of the original position.⁴

Rawls formulated the “just saving principle” in order to explain the relationship of justice between generations. According to this principle, what every generation is expected to do is to hand on to its immediate posterity a somewhat better situation than it has inherited. Anything less than this would be unfair to them, anything more would be unfair to the present generation.⁵ In extending the theory of justice between generations, Rawls has difficulty imagining the contracting parties being members of different generations. Therefore he assumes that they are contemporaries but do not know their position in time. Thus each generation lies behind a “veil of ignorance”, not knowing whether they are living in a resource-rich world or a polluted world or a technologically advanced world.

Rawls alters the motivational assumption that he originally makes regarding the contractors. He switches from viewing the parties in the original position as individuals to viewing them as family lines.⁶ Rawls introduces this methodological change because he reasons that, though man’s considered judgement dictates that earlier generations should save for later ones, self-interested individuals in the original position would disregard the rights of future generations and would choose not to save anything for them. He assumes that the only “rational self-interest” which can be relied upon to transcend generations is concern for one’s own children. Motivated by this parental concern, each generation is presumed to act justly toward the next. Rawls’ explanation of intergenerational justice in terms of the just saving principle has in a way restricted transgenerational moral relationships only to overlapping generations.⁷ For this reason, it seems that the Rawlsian social contract theory cannot offer an adequate ethical framework to underpin the contemporary moral concern for the far distant unborn generations. The just saving principle supports obligations corresponding to the rights of the immediate one or two generations; but beyond that, there is no motivation to do that. This short timescale interest in the future is unable to justify any moral concern about the effects of actions with long-range effects, such as those resulting from genetic engineering and nuclear energy.

THE EMERGING CONCEPT OF HUMANKIND AS A COLLECTIVITY

The increasing references in international documents on ecological issues to the term mankind rather than to individual persons or groups are a clear indication of the new direction towards which environmental policy is now moving. Humankind as a collectivity is emerging as the new subject of rights to share the resources of the earth, to enjoy an environment of a quality that permits a life of dignity and well-being, and to be immuned from the effects of atomic radiation. Some decades ago an agreement was reached that the explorations on the moon and other celestial bodies shall not be carried out for the benefit of only some individuals or a particular people or nation, but for mankind as a whole. Moreover, the cultural and natural heritage of the world is also considered as belonging to mankind as a whole. Furthermore, all member states of the United Nations have agreed that scientific and technological progress shall be used for the benefit of mankind.

Another indication of the emerging notion of mankind as a collectivity may be found in the concept of common heritage introduced in international environmental law to regulate the global commons. That which belongs to all mankind cannot be considered simply as unexplored and unclaimed territories suitable for expropriation and exploitation on a first-come-first-served basis. Resources declared as common heritage are to be managed on behalf of all countries for the benefit of mankind as a whole and must be used only for peaceful purposes. Central to the concept of the common heritage of mankind, proposed for the first time by Malta in the 1967 United Nations General Assembly in the context of the Law of the Sea, is the idea of trusteeship. Certain resources of the earth are regarded as being the property of future generations as well as the present one, and thus must be used with caution to be preserved for posterity. Present generations are answerable to future generations for their stewardship of the common heritage. Moreover, the idea of humankind as a collectivity which transcends the present generation is also included in Unesco’s draft Declaration on the Protection of the Human Genome. This international instrument proclaims that the human genome should be protected because it is one of the constituent parts of the human heritage which belongs to the human species. Accordingly, it is clear that the idea of humankind as a whole has been now extended from an environmental to a bioethical context.

Behind the notion of mankind as a collectivity lies a new vision of community. During the 1960s the world community was awakened to the awareness of the interdependence of all nations. Every nation is a section of a global community. All nations and continents exert influence on each other. This awareness gave rise to the notion of the international community of mankind which includes all people living now. Everyone is related to all the other members who collectively form one global community. Later on, in the late 1970s, a new vision of community emerged that was broader than the international community. Every generation is just one link in an endless chain of generations who collectively form one community, namely the family of humankind. Mankind is a unity because every person, no matter whether living now or in the future, is related genetically and culturally to the rest of the human race.

According to Alexander Kiss, this fundamental change in our conceptions of international enviromental law can be compared to the Copernican revolution which proclaimed that the centre of the universe was not the earth but the sun: states are less and less the centre of international relations, the focus becoming more and more mankind and its individual representatives, both living now and in the future. We are increasingly recognizing that environmental issues have interests that are common to all humankind. International environmental norms tend to restrict the actions of states for the interest of the community of humankind as a whole.

Three main factors have contributed considerably to today’s sense of belonging to the community of mankind as a whole. Firstly, it has now become quite evident that technological power has altered the nature of human activity. Whereas previously human activity was viewed as having a small effective range, modern technology has reshaped this traditional view. Modern technology has given us an unprecedented power to influence the lives not only of those now living, but also of those who will live in the far distant future.

Secondly, today’s solidarity with all members of the human race is the result of the discovery of the interdependence and interrelatedness of reality. This truth has been known for centuries, but it is only lately that we are experiencing it in all its complexities. Never before has human experience shown that absolutely nothing exists in isolation. Everything affects everything else. Every action, decision and policy whatsoever has far-reaching consequences. Everything, from culture to genes, will be transmitted to posterity. It is therefore becoming more evident that our relations are not merely limited to those who are close to us or to those who live contemporaneously, but extend in time to far distant generations.

Thirdly, the increasing awareness of the finitude and fragility of our one and only earth was another factor which contributed to perceive ourselves as belonging to one family of humankind. With the 1972 Stockholm Conference on Human Environment, a new vision of the planet Earth emerged, metaphorically explained as a spaceship. For many years it has been thought that the planet contained unlimited resources to exploit, unlimited energies to manipulate, unlimited lands to develop and settle, and unlimited air and water to cleanse the world of wastes produced by man. Now we realize that none of these assumptions is true. Man is compelled to revise his sense of place in the biosphere. The quality of life of future generations depends upon translating this new vision into relevant principles and concrete actions.

MANKIND INCLUDES FUTURE GENERATIONS

Does the term mankind, used in international documents on environmental policy, mean only the present generation, or does it also include those yet to be born? It is interesting to note that those documents which employ the term mankind have direct references to present and future generations. This reveals that the term mankind denotes more than the present population and hence more than a present collectivity.⁸ It encompasses a collectivity which includes both present and future generations.

The interchangeable usage of mankind and present and future generations suggests that they are synonymous, and justifies the interpretation which international lawyers give to mankind in terms of species, thus including all generations yet to be born.⁹ The explanation of mankind in terms of species gives a broader dimension to the concept of human rights, for it includes individuals who will exist in the future. This remarkable development in the evolutionary process of human rights has continued to widen the subject of human rights in international fora from a specific group to mankind as a whole, or the human species. The entire human race has a collective claim. Human rights could thus be defined as those rights to which every person, irrespective of whether he/she actually exists now or in the future, can have a just claim, by the very reason of being a person or because he/she is a member of the human species. This is close to what Jacques Maritain meant when he spoke of “things which are owed to a man because of the fact that he is a man”.¹⁰ Human rights are therefore those claims which belong to all people, everywhere, at all times. This interpretation has transgeneralised human rights, rendering them applicable to all members of the human species, existing in time.

Historians of the developments of human rights have adopted the habit of speaking of three generations of human rights: the political, the socioeconomic and the environmental. But it is possible to see the three generations in a somewhat different light: as the rights pertaining to the individual, the rights pertaining to defined socioeconomic groups, and the rights pertaining to the human species as such.¹¹ The emergence of “solidarity rights” or the “third generation of human rights”, in international environmental law gives credence to the broad definition of mankind in terms of both present and future generations. The collective rights of mankind are an extension of solidarity rights whose distinctive feature is the fact that solidarity among mankind as a whole is a prerequisite for their realization. Among these rights, we find the right to development, the right to peace, the right to a healthy and balanced environment, and the right to share the bene...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Acronyms and Abbreviations
• List of Contributors
• Preface Salvino Busuttil and Katsuhiko Yazaki
• Introduction Emmanuel Agius and Tae-Chang Kim
• Part 1: Philosophical Reflections
• Part 2: State Responsibilities Towards Future Generations
• Part 3: Future Generations as a Subject of International Law
• Part 4: Practical Legal Consequences of Future Generation Provisions in Existing Treaties
• Part 5: Relevance of Rio Declaration, Agenda 21 and the United Nations Commission on Sustainable Development to a Guardian
• Part 6: Draft Instrument
• Appendix: International Legal Materials Referring to Future Generations
• Notes and References
• Index