Commonwealth Essay

FUTURE GENERATIONS HAVE RIGHTS TOO, WHICH MUST BE DEFENDED

Should moral and/or legal rights be granted to members

of future generations? The question is not new. Yet, it
remains important. It pertains simultaneously to the
conceptual realm and to the domain of practical
proposals arising out of concern for future generations.
Consider just a few of such proposals. First, we can think
of specific institutions aimed at defending the interests
and rights of future generations, such as a set of reserved
seats in one of the parliamentary chambers,1 setting up
a specialized second chamber,2 appointing a
commissioner directly attached to one of the chambers
(Knesset model),3 or instituting specialized
administrative bodies such as a guardian/ ombudsman4
or a specific agency.5 For each of these bodies, it also
needs to be ascertained how extensive its powers should
be: to delay decisions until the relevant arguments have
been heard, to request a “future impact” assessment,
etc. Second, at the franchise level, proposals have been
made regarding the voting rights of various age-groups
(that inevitably translate at the birth-cohort level6 ) as
well as regarding the possibility for parents to exercise
their children’s right to vote.7 Third, alternative or
complementary indicators are being proposed for our
national accounts. Beyond generational accounting,8 we
can think of approaches such as ecological footprint or
genuine savings accounting.9 Fourth, pension schemes
can be redesigned to take into account intergenerational
concerns. Such practical proposals may result in
identifiable outcomes. Yet, finding out about their
desirability requires a closer look at some important
theoretical issues. The intergenerational context exhibits
a unique set of features that make it especially
challenging. The temporal direction of causation
generates problems of asymmetry of power as well as
restrictions to the possibility of giving back to the past.
The lack of coexistence among remote generations raises
the question whether obligations of justice obtain at all
between non-overlapping generations. Distance between
some of the generations increases uncertainty as to the
effects of our actions or the nature of future generations’
preferences or their environment. The sequential nature
of intergenerational relationships entails the need to rely
on intermediary generations separating us from remote
future ones, which leads to potential problems of non-
compliance essential for non-ideal theories. Such
features make intergenerational issues especially
difficult. Does it entail that the hope of coming up with a
theory of intergenerational justice involving significant
substantive obligations should be abandoned altogether?
My guess is that many of these problems have solutions.
In any case, it would be unacceptable to claim that they
do not without having extensively tried to find them.
THE INTERESTS OF FUTURE GENERATIONS
MUST BE PROTECTED IN ANY CONSTITUTION
Any entrenched, justiciable constitution should be
appropriately future-focused. In particular, it should
include provisions which protect the interests not only of
current citizens but also of future citizens – for many
generations to come. Put differently, a constitution should
have proper regard to citizens’ needs, rights and interests
both in the near-term and over the long-term: it should
protect their ‘future selves’ and also those who are as yet
unborn.But the problem is how best to pursue such goals.
Many future needs and interests are unknown or
uncertain. Policy-makers also face genuine intertemporal
trade-offs. How should short-term and long-term interests
be balanced if and when they clash? Aside from this,
there is the challenge of which particular long-term
interests – economic, social, cultural and environmental –
should be protected by means of a constitution and how
should such interests be framed and specified? If the
wording is too narrow and precise, it may provide
inadequate protection for new or emerging interests. Yet
if the wording is too broad and generalised it may be open
to multiple and competing interpretations, thereby
potentially offering little real protection. Another issue
relates to the question of legal standing: who should have
the right to bring proceeding before the courts to protect
the interests of future generations and should public
resources be available to those pursuing such cases?
Many drafters of constitutions around the world have
grappled with such issues over recent decades. Thus far,
no consensus has emerged on the best way forward.
Having said this, efforts to protect long-term interests,
including those of future generations, have often focused
on humanity’s interests in a safe, healthy and sustainable
environment. The Constitution of Bolivia, for example,
provides that the state is responsible, amongst other
things, for the ‘use of natural resources, the promotion of
industrialisation, and the conservation of the environment
for the welfare of current and future generations’.
Similarly, the Constitution of Ecuador requires the state to
‘exercise sovereignty over biodiversity, whose
administration and management shall be conducted on the
basis of responsibility between generations’. Both
provisions are worded to encourage positive action on
behalf of the state; but they provide no guarantee of
specific environmental rights. By contrast, the South
African Constitution states that, everyone has the ‘right to
have the environment protected, for the benefit of present
and future generations, through reasonable legislative and
other measures’. Similarly, the Andorran constitution
guarantees ‘an environment fit for life for the coming
generations’.
It is uncommon for constitutions to protect the interests of
future generations independent of any specific reference
to environmental considerations. While a small number of
constitutions contain such protection, the relevant
provisions are typically worded as statements of policy,
not as fundamental or specific rights. In Estonia, for
instance, the Constitution’s Preamble declares that ‘[the
state] shall serve to protect international and external
peace and provide security for the social progress and
general benefit of present and future generations’. This
provides a positive direction for governmental policy, but
it has little practical or judicial value – there is no scope
for judicial enforcement.
In relation to protecting long-term interests, the approach
taken by Geoffrey Palmer and Andrew Butler in their
proposed constitution for Aotearoa-New Zealand closely
parallels the South African model. Hence, it focuses on
environmental rights. To quote from their draft Article
105:
Everyone has the right –
(a) to an environment that is not harmful to his or her
health or wellbeing; and
(b) to have the environment protected, for the benefit of
present and future generations, through reasonable
legislative and other measures that –
(i) reduce pollution and ecological degradation;
(ii) promote conservation;
(iii) pursue ecologically sustainable development and use
of natural resources while promoting justifiable economic
and social development.
Several points deserve brief comment.
First, the proposed wording is more specific,
comprehensive and demanding than is typically the case
in other constitutions. For instance, the reference to
measures that ‘reduce pollution and ecological
degradation’ recognises that much ecological damage has
already been inflicted by human activity, and that such
damage should be repaired and rectified – at least where
this is technically possible (and presumably affordable).
Similarly, the proposed provision grants all citizens ‘the
right … to an environment that is not harmful to his or her
health or wellbeing’. If ‘harm’, ‘health’ and ‘wellbeing’
are all broadly interpreted, then this would represent a
significant new legal right. An interesting question, of
course, is whether the negative framing of the proposed
provision – i.e. the right not to be harmed – provides
stronger constitutional protection than an alternative,
positive framing – e.g. ‘the right to a healthy, safe and
sustainable environment’. But this is certainly possible.
Second, the proposed provision attempts to balance the
competing interests of conservation and environmental
sustainability with those of ‘justifiable economic and
social development’. This begs many questions, not least
the issue of what constitutes ‘justifiable’ development:
what, for instance, might be the appropriate tests and
thresholds? Equally, how willingly might the courts
question the judgements reached by law makers,
regulators and other policy-makers? Balancing economic
development and environmental protection are deeply
political and controversial matters. Is it reasonable to
expect the courts to take a very different view from
citizens’ elected representatives?
One matter, however, is abundantly clear: New
Zealanders have been poor stewards of their amazing
environmental inheritance. Our nation’s rate of
biodiversity loss is amongst the highest in the world.
Many of our lakes, rivers and streams have been badly
polluted, some almost irreversibly. Our per capita
greenhouse gas emissions are high by international
standards. And we are losing soil at about ten times the
global average rate. Improving our environmental
management is thus critically important. And we cannot
wait for an entrenched and justiciable constitution to
achieve this goal, however helpful this might be. We must
start now.
Sources : https://semanticscholar.org,
http://constitutionaotearoa.org.nz
https://www.thesolutionsjournal.com