Resisting the Allure of Future Generations’ Rights

On 9 April 2024, the European Court of Human Rights (ECtHR) delivered much-anticipated judgments in three emblematic climate change cases: Verein KlimaSeniorinnen Schweiz and others v. Switzerland, Carême v. France, and Duarte Agostinho and Others v. Portugal and 32 Others.

In this post I want to shed light on the following aspect of the KlimaSeniorinnen decision: the fact that the Court did not rely on future generations’ rights, but instead sketched a meaningful shift towards identifying positive duties to tackle a proportional intergenerational burden-sharing imposed by rights. The KlimaSeniorinnen decision seems to constitute an important landmark in the discussion about future generations.

Setting the Scene: Can We Effectively Fight Climate Change by Granting Rights to Future Generations?

Climate litigation has been on the rise, especially through the so-called rights-based approach. A plethora of articles, books, debates, lawsuits, and decisions on this matter show a growing trend advocating for recognizing rights for future generations, especially in international law. This trend can be concretely seen in the development of the Maastricht Principles on the Rights of Future Generations, a non-binding document, endorsed by numerous leading human rights experts. Future generations are also gaining momentum within the United Nations, as evidenced by the forthcoming Summit of the Future, scheduled for 22 and 23 September 2024 and expected to yield a Declaration on Future Generations.

However, critical voices question the extension of current rights to future generations, urging for consistent application of legal instruments and caution against uncritical adoption of “new” categories. This critical perspective acknowledges the significance of rights-based climate litigation, as well as the broader agency of young generations. In addition, it stresses the imperative of designing and implementing equitable, collaborative long-term global policies to combat climate change. Nevertheless, it raises pertinent questions around the feasibility and utility of legally recognizing present rights for future generations.

In my view, the use of the category  “future generations” as rights holders requires careful analysis, particularly within the realms of constitutional law adjudication and fundamental rights. This category of unborn individuals appears legally vague and unlikely to qualify as current holders of fundamental rights. I will not delve into this topic now, but some questions may help reflect on the subject. We can start by questioning how to define future generations as rights holders. We also can ask ourselves if existing is a condition for being a right holder in concreto. In addition, which rights should future generations be presently entitled to and how to justify a selection of rights? Furthermore, how to represent future generations, in the political arena but also judicially in conflicts between future generations’ rights and present individuals’ rights?

In any case, invoking or recognizing rights for future generations does not seem conducive, either legally or in terms of factual reality, to enable systemic changes necessary to address the climate issue. These changes involve challenging the legal order of the capitalist system, its logic of exploitation, and the economic and social relations sustaining an instrumental interaction with nature and the planet. Granting present (fundamental) rights to future generations may perpetuate these structures and the anthropogenic climate change, rather than altering them. Moreover, from a societal perspective, an ideal resort to abstract future generations may disturb the attention and action needed to address actual fracturing inequalities, which are indeed being worsened by climate change. It may also distract us from implementing rights already vested and urgently claiming for effectivity, such as children’s rights. Granting future generations the same rights present generations formally hold does not seem an adequate instrument for tackling the environmental and societal crisis we face.

The necessary changes within the Law point to establishing and enforcing duties, especially State duties embodied in public policies which contemplate all rights in their indivisibility, as well as the intrinsic value of nature. Instead of the seductive discourse of future generations’ and nature’s rights, taking climate change seriously requires establishing and enforcing positive State obligations related to the rights enshrined in the current legal framework.

We already have a significant legal framework to implement consistent climate action. This framework includes an important human and fundamental rights element, as demonstrated by rights-based climate litigation. Perhaps the missing puzzle piece is translating this element into effective and concrete duties and obligations, prompting immediate State action to tackle climate change. This action encompasses sufficiently developing, enacting, and implementing scientific-based public policies which lead to international fair collaboration.

Interestingly, in the Urgenda case, seen as pioneering in climate litigation, future generations’ rights were invoked. However, the Dutch Supreme Court, understanding the State’s failure to implement policies to effectively curb greenhouse gas emissions as unlawful, imposed positive obligations on the State based on Articles 2 and 8 of the ECHR, without finding it necessary to recognize rights for future generations. The Court deemed the risk to current residents in the Netherlands sufficient to justify the measures.

The KlimaSeniorinnen Decision: Do We Need Future Generations’ Rights to Take Climate Action Seriously?

Likewise, the recent KlimaSeniorinnen decision does not rely on future generations’ rights. Thereby it reinforces the ideas presented above. The Court was clear in strengthening State’s positive obligations and, by doing so, stroke a renewed balance between rights-based climate litigation and climate action as a legal duty.

The decision delves into the rights protected by the Convention and their relationship with climate change. It also examines claims concerning especially vulnerable rights holders, opens new avenues about standing (for individuals and associations), and analyses the configuration of victim status, the causal relation between rights, harms, risks, and State actions and omissions. These aspects show that the rights-element is indeed central. There is even discussion about a “new right” to “effective protection by the State authorities from serious adverse effects on their life, health, well-being, and quality of life arising from the harmful effects and risks caused by climate change,” (page 233) also touched upon in the partly dissenting opinion by judge Eicke. Nevertheless, it is possible to identify a shift from extending or creating rights to advancing and elaborating on legal duties required by rights. The significant contribution of the decision lays in the clear identification of positive State obligations concerning climate action required for intergenerational burden-sharing.

This shift is evident when the Court addresses the complex issue of identifying victim status and examines the problem of causation and risk. After discussing these aspects, the Court states, regarding causation, that “It is therefore necessary to further adapt the approach to these matters, taking into account the special features of the problem of climate change in respect of which the State’s positive obligations will be triggered, depending on a threshold of severity of the risk of adverse consequences on human lives, health, and well-being.” (paragraph 440) The focus is on the State’s positive obligations.

It is interesting that “burden-sharing” appears in the Court’s pioneering reasoning about associations’ standing. The Court reaffirmed that, for cases related to climate change, identifying victim status presents a particularly high threshold. It requires the demonstration of the magnitude, duration, and degree of probability that adverse effects from climate change will specifically impact each individual applicant’s life, well-being, and health. These criteria were not identified in relation to the individual applicants, but to the association, considered able to act on behalf of its members. These aspects will surely receive detailed attention and debate in the coming period. For this post, it suffices to highlight that the Court explained the specificity of the procedural right recognized for associations in the context of climate change not resorting to the rights of future generations, but, instead, to the need of promoting intergenerational burden-sharing.

An intertemporal aspect is often present in the decision. The Court states, for example, regarding the rights protected by the Convention, that “Effective respect for those rights requires States to undertake measures to reduce their GHG emission levels, with a view to reaching net neutrality, in principle within the next three decades” (paragraph 548). Once again, there is no reference to future generations’ rights, only a clear emphasis on State legal duties. In the Court’s words: “By their commitment to the UNFCCC, the States Parties have undertaken the obligation to protect the climate system for the benefit of present and future generations of humankind” (paragraph 420).

The duty element is prevalent. The Court does not deny the challenges posed by climate litigation to the separation of powers and to democratic representation. Whitin this context, the Court takes clear steps towards identifying and imposing legal duties on States by delineating some differentiation for the margin of appreciation; a “reduced margin of appreciation as regards State’s commitment to combating climate change, its adverse effects and the setting of aims and objectives in this respect” and a “wide margin of appreciation as to the choice of means designed to achieve those objectives” (page 1).

In essence, the decision is strongly based on Article 8 of the ECHR, invoked to elaborate on the State duties concerning the causal relationship between enjoying the rights protected by the ECHR and climate change. This essence can be summarized when the Court asserts that the “State’s main duty is to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” (paragraph 545).

Conclusion: Let’s Address Climate Action as a Legal Duty?

Much more deserves analysis and discussion about the KlimaSeniorinnen decision; it is a complex and rich judgment inviting a nuanced and holistic debate, especially considering the growing global case law on climate change. Without disregarding the complexity of the matter, I cannot resist closing this blog post with an invitation to reflect on the imagery this decision evokes. It may be symbolic that a case presented by elderly women led to a groundbreaking judgment on climate change, while climate litigation has been dominated by arguments in favor of future generations and children’s activism. In KlimaSeniorinnen, the Court distanced itself from seductive discourses and centered its reasoning on State obligations required for intergenerational burden-sharing. In a historic decision, without touching upon future generations’ rights, the Court answered to climate change by seriously addressing climate action as a legal duty.