Failure to Protect Future Generations Undermines Universality of Law

Karen Moir - 2nd July 2013

As environmentalists, development practitioners and concerned citizens accelerate their efforts to institutionalize concrete protections for future generations, international human rights law continues to lag behind.

The guiding principle of International Human Rights Law (IHRL) is universality, or the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.’ The Preambles of key instruments like the International Covenants on Civil and Political, and Economic Social and Cultural Rights assert this, while the Charter of the United Nations opens by affirming the determination of the world to spare ‘succeeding generations’ of the horrors that ultimately led to the creation of the United Nations itself.

However, legal evidence drawn from around the globe demonstrates that the ability of states to impact the human rights of future generations (through, for example, the extractive sector) is not adequately reflected in the law today.

In order to ensure the universality of access to justice despite social realities that are far from static, IHRL is necessarily an ever-evolving web of living instruments. Since the appearance of international law, the benefactors have been able to depend on steady progress and continuous codification of what constitutes human rights. In the face of permanent and irreparable damage to the economic, social, cultural and environmental fabric that is necessary for the effective exercise of rights, limiting legal protections to current generations may fail to protect what could, philosophically speaking, be the largest cohort of humans ever to exist.

The arguments against integrating intergenerational justice into human rights frameworks are many, but the two most common simply do not hold up to scrutiny. First is the issue of balancing rights between the here and now and the ambiguous ‘later’. Development practitioners in particular, are wont to worry that extending rights to future generations would somehow undermine those of the most vulnerable in the world today. Without spending to much time on the socio-cultural rights of identifiable individuals that necessarily have a temporal element (for example, ‘the conservation, the development and the diffusion of science and culture’ ICESCR, Art.15(2)); it is sufficient to recall that the extension of human rights to women did not violate those of men, nor did the extension of human rights to ethnic and religious minorities violate those of majority groups. Human rights is by its very definition a balancing act, and the act of balancing rights can only be considered legitimate once all human beings are accounted for.

This leads us to the next most frequently encountered protest: how can the law account for future generations? The capacity to promote and protect human rights through representation is confirmed by the most widely ratified instrument of international human rights law: the Convention on the Rights of the Child. There are diverse approaches to representing the best interests of others in law; therefore, I am tempted to treat this complaint as more of an avoidance tactic than an actual obstacle. There is a response to every challenge: the Genocide convention may already establish group recognition, predictable causality is tackled by the precautionary principle in environmental law, and so on. Yet, future generations continue to fall outside the protections international human rights law.

Nevertheless, advocates of sustainable development and international environmental law continue to pursue the cause. In New York on May 9th the United Nations Department of Economic and Social Affairs convened an Expert Panel on Intergenerational Solidarity. Next week the United Nations Environment Programme in collaboration with the World Future Council will host a Global Conference on Implementing Intergenerational Equity: ‘Bringing Future Perspectives to the Status Quo.’ I will co-chair this event to promote enhanced understanding of the concept of intergenerational equity and explore strategies for protecting the rights of future generations.

More information and the tentative agenda can be found here. Please feel free to join the discussion online or in person.

Karen Moir is a consultant who supports human rights and sustainable development across the United Nations. She is currently engaged with the United Nations Development Programme in New York, and explored the implications of limited legal protections for future generations at the University of Essex. Additional research on balancing rights across generations and the application of human rights law to protect them is forthcoming.