On the Rights of the Future
Examinations on the future of humanity have kept societies intellectually occupied for millennia. Now, with the imminent threat of the climate crisis, this question moves into focus once again — and begs the question on whether or not global systems are ready for what’s yet to come.
What’s happening?
The matter of climate change has long moved from an individual or corporate level onto a policy stage. Failing advocacy for change and the need for an almost all-encompassing social, economic and political overhaul to address this challenge have transformed themselves into a view that it is in fact policy action that must step forward to save humanity. But what policies can to demonstrate in the diversity of thought, comprehensive considerations and ambitions, they often lack in an essential dimension elsewhere: enforceability.
Not only does the immediacy of the threat that is climate change see policy forced to connect, coordinate and execute with the domain of legislation, a discipline that exhibits an almost antagonistic set of characteristics when compared to its parliamentary counterpart, but the intergenerational nature of climate change — and as such, the effect on individuals that lack both a political voice or representation — make for a pressing, yet interesting study on the extent to which contemporary, chrono-narcissistic legislation across all levels can integrate, address and proactively behave in the interest of the future of humanity.
At the core of the question lies therefore the nature of law, the ways in which its historic structure and lexis have prevented practitioners and researchers alike from appropriately and bindingly accommodating and promoting equality in its vocational philosophy beyond the here and now and whether or not the domain — in practice and in theory — is prepared to evolve from a punitive approach to anticipatory view, proactively enabling the prevention of a colonisation of the future through climate change.
Setting out to answer this question, an analysis of the status quo seems therefore only adequate.
Where are we currently standing?
An inquiry into the current landscape of climate-change law — and the extent to which future generations are accounted for — reveals both a clear increase in litigations, with the number of related cases doubling since 2015, and an expected, notable tilt towards reactionary litigation at local and national levels.
High-profile cases range from a ruling against the Dutch government for insufficient protection of its citizens against climate change (due to lacklustre emissions targets) to a US constitutional lawsuit claiming violation of the constitutional rights of the citizens of the state of Montana to a clean and healthful environment (due to the state’s demonstrated support of a fossil fuel energy infrastructure). Both cases are united in their initiation at grassroots levels, involving individuals without power or means and lengthy and costly processes that lacked legal precedent, as well as the reactive nature of their ruling, with a remarkable absence of any consideration on ensuring that such violation of constitutional rights will not be repeated.
In contrast, light hints at concern for future implications are shown with the German constitutional ruling that the country’s current emissions trajectory would endanger future generations, or the Welsh 2015 Wellbeing of Future Generations Act, in which the Welsh government is, along seven long-term well-being goals, legally obliged to demonstrate that its decisions don’t compromise future generations’ ability to meet their needs.
On an international level, matters proceed at an expectedly slower pace. However, a small nation has been driving the discourse with unprecedented success: For more than a decade, the Pacific Island nation of Vanuatu, one of the lowest emitting countries on the globe, has suffered disproportionate and ever-increasing consequences of climate change due to the behaviour of the world’s heaviest polluters — only recently have two cyclones eroded what equals half of the nation’s GDP. In arguing that climate change has become a human right for Pacific Islanders, Vanuatu has not only prompted the UN International Court of Justice, the world’s highest court, to establish legal consequences for countries that don’t address climate change, it has also managed to see through the set-up of a loss and damage fund at COP27 — a decades-old idea in which countries that contribute to climate change the most should compensate those that suffer from it the most.
Where does that leave us?
The aforementioned results of the inquiry give a reason for hope, but upon closer inspection exhibit clear shortcomings in order to be called “sufficient” for solving the climate crisis and with it, the well-being and dignity of future generations.
On one hand, the majority of cases or initiatives are — should a legal environment even allow promotion of such — driven by entities or individuals that lack the means to pursue them in an efficient manner. Meaningful changes require collective effort and call for developed nations and large corporations alike to take action.
On the other hand, the sheer length of the process that is needed for cases and initiatives to grip and show effect (bearing in mind that only a very small amount of them do) brings one to the realisation they postulate a clear need for something the world doesn’t have: time.
What are possible avenues to address these shortcomings?
With regard to the initial argument, the construction of a support system that not only encourages and enables more initiatives and claims but also pools and aggregates them, seems feasible. Organisations and bodies likeClient Earth, an NGO specialising in environmental litigation, Green Legal Impact, an NGO offering specialised training to young lawyers and connecting civil society groups to those offering legal representation, or Columbia’s Sabin Center for Climate Change Law that aims to provide legal tools in the fight against climate change for students and lawyers, are the vanguard in the effort of the construction of such a support system. To be able to offer support at scale, however, such organisations must not remain the only ones, and governmental or corporate funding for their existence is an unnegotiable means to this end.
Another avenue leads to the very structure and characteristics of the law itself. Holistically, the paradigm of de-growth and the revision of the social contract in the interest of preventing ecocide must prevail and find its place in the discipline and lexis of law. Society must recognise that legislation ought now not to account for independence, as it was driven by for centuries, but for interdependency, obliging all to acknowledge a duty of solidarity. Such awareness of interdependency does not have to be imagined and drawn up from scratch — it has been practised in the decision-making frameworks of various cultures for millennia. Indigenous collectives, for instance, have shown to be extraordinary stewards of land and nature, their virtues characterised by long-term thinking and independence from any “election-cycle”-biases — establishing such a framework as an objective, whose achievability must partially be enabled by legislation, adds an overarching guideline for the much-needed, epistemological break-up of the domain, encouraging a shift from model to movement, from static to dynamic.
With it, the notion of anticipation, otherwise uncommon to legal texts, must find its way into courts. Moving away from static language — such as “foundations”, “grounds”, “fundamental” and “pillars” that spur juridical order to a changeless construct — ideas like “sustainable peace”, “development” or “future generations” ought to be integrated into the legal vocabulary.
Not only does the combination of the aforementioned two avenues and the therewith connected paradigmatic shift in the philosophy, practice and accessibility of law allow for the accommodation of climate change and its impact on future generations in current legislation, it also enables the build-out of entirely new sections to account for needs and challenges of the future population — the expansion of human rights towards “humankind” rights, involving legislation built around physical survival, human dignity and creative potentials, come to mind. Simultaneously, the revision of the legal lexis will enable new legislation to undergo necessary critical questioning prior to implementation, ranging from its respect for natural areas, traditional knowledge and all common heritage of humankind, its precautionary approach to human health and ecosystems to the security of humanity or the integration of interrelationships in human rights with social, economic and or environmental objectives.
With the expansion of boundaries on what law can and cannot reflect through the foregoing methods, the fight against climate change and the protection of the future of humanity, encouraged by a comprehensive support system, are given the chance to be articulated more accurately, more encompassing and therefore enable the setting of a much-needed precedent to become more readily and proactively enforceable.
