Justice for Future Generations – Inequalities, IHRL and the Post-2015 Agenda
by Karen A. Moir
Limited Universality Limits the Scope of Change
At the international level, future generations and their rights have long been a concern of the environmentally minded. Politicians under enormous social pressure and development practitioners faced with irreconcilable realities have begun to discuss responsibilities towards future generations in the context of the Post-2015 Agenda. International human rights law (IHRL) however, has resisted the trend. My research is concerned with understanding the impact that the lack of explicit international legal protection for the human rights of future generations has both on the pursuit of justice, and the processes that it informs; as well as ways forward within existing systems. Against the backdrop of potentially catastrophic environmental events, outrage against the concentration of wealth has been voiced through the Occupy Movement, and social consternation about a variety of injustices has erupted in protests and violence across the globe. The stakes are incredibly high for “sustainable development”, and half-measures are unlikely to suffice.
The protections for people and communities under IHRL do not currently extend to future generations in any formal sense. The “limited universality” of IHRL was noted in 2012, and later confirmed by the Report of the Secretary General on Intergenerational Solidarity and the Needs of Future Generations. Addressing human rights solely in the present however, is no longer appropriate in the context of activities that cause or compound financial crises, nuclear catastrophes and climate change. These are direct threats to the long-term capacities of States to fulfill their obligations and people to exercise their rights, such as the right to an adequate standard of living; food; health; water and sanitation; fundamental rights at work; development and even life. The failure of IHRL to recognize future generations as a rights-bearing group has potentially severe implications for the elimination of chronic inequalities, for the outcomes of the Post-2015 Agenda and for the capacity of IHRL to continuously respond to contemporary challenges.
Intergenerational Justice and Inequalities
The failure to respect the rights of future generations may undermine the sustainability of development gains made by their parents by allowing for disproven assumptions to prevail and externalized development costs to accumulate. It has long been known that the “trickle down effect” was a flop! Raising income for the majority does not improve – and in some cases may even worsen – the well-being of the most vulnerable. Accelerating development today according to similar patterns may translate to similar results tomorrow, namely, perpetuating and potentially compounding the most chronic inequalities in rights and well-being. The purported failure of Malthus’ theory may be a source for the ongoing overestimation of the potential for technology to improve the future for everyone. Technological innovations alone do not reduce inequality however, and not all people today are better off than their parents. This is made clear by facts such as recurrent starvation in the face of global food production that is beyond sufficient to sustain all human beings. As the inputs for technological innovations become more costly to procure in terms of human displacement, ecological damage and economic instability, inequality both within countries and across them is rising. Because no technology will allow future generations to find resources that are no longer there, these inequalities may worsen the marginalization of some, and push others into poverty in the long term. The development policies and programmes that have had the most positive impact on vulnerable and marginalized groups such as women and children, minorities and migrants have made explicit provisions that respond to their special circumstances with a human rights approach. The same is needed for future generations.
Intergenerational Justice and Sustainable Development
The lack of human rights recognition for future generations undermines our ability to employ a rights-based approach in long-term initiatives, and may be related to the sheer volume of deliberations on sustainable development that seem surprisingly analogous to development simple. Organizations of the United Nations are obliged to mainstream human rights across all areas of their work. Although the Rio outcome document, The Future We Want, highlighted future generations as primary stakeholders, what that means has not been adequately defined for policy makers and programme managers. Despite the United Nations Department of Economic and Social Affairs’ examination of options for promoting intergenerational solidarity, it is not yet clear just how many generations we should be discussing, what types of needs they may have, and to what degree they may be approached as rights-bearers today. It should come as no surprise then, that very little substance is associated with “future generations” in the dialogue leading up to 2015. The word “sustainable” has found its way into an array of documentation, but targets, indicators and other specifics are few and far between. If human rights guide development cooperation across the United Nations, where can the international community look for guidance on future generations if IHRL is silent?
Intergenerational Justice and Human Rights Law
We cannot rely on economic theories within which the greatest inequalities of today are rooted, and expect to eliminate them. Likewise, we cannot call for a rights-based approach to “sustainable” development without rights for future generations. Universalism is the most fundamental principle of IHRL. Great leaps and bounds have been made to ensure that the most vulnerable and marginalized groups are able to exercise their rights and that States are able to meet their obligations towards them. Nevertheless, many legal traditions are much more explicit about their relationships with the future than our current system of IHRL. While on the one hand, this demonstrates that intergenerational justice is an ancient concept that spans cultural divides, it also points to the dominance of one set of values over another. I am concerned with recalibrating the human rights relationship between generations not only to rectify inconsistencies with my own world view, but also in the interest of strengthening the system of IHRL. While (real or perceived) differences between cultures risk undermining the legitimacy of the entire human rights enterprise, discrepancies in the very theory thereof may be more harmful. The system is premised on the concept of universalism and is necessarily “progressive” in nature. Few would deny that actions taken by international organizations and States today can and do have significant implications for people of tomorrow. Yet, there is no corresponding ability to hold those actions to account. Concepts like group rights, balancing rights and progressive realization of economic, social and cultural rights offer opportunities to formalize respect for the rights of future generations.
A Turning Point for Intergenerational Justice
Real change in results will require real change in methods. I believe that establishing respect for the rights – economic, social and cultural, as well as “solidarity” rights in particular – is not only possible, but necessary. A number of opportunities are built into the existing system and allow for progress that compliments the advancements in justice made by our predecessors. I am equally optimistic that the timing for such a shift is opportune. With so much of the international community’s attention trained towards formulating a comprehensive, coherent and functional Post-2015 Agenda, everyone will have to work very hard to overlook future generations, one of the central tenants of sustainable development. At the same time, the international development community can facilitate this change through a concerted effort to attach meaning to “future generations” as stakeholders. Small shifts here and careful reflections there will allow both individuals and institutions within the current system to take a wider temporal perspective on rights and duties, and think practically about what that means for our tools and tactics. While the challenges are daunting, the prospects are unparalleled, and I am honoured by the invitation to share some of my thoughts on one the most important issues of our time.
Karen A. Moir, LLM, is a Visiting Research Fellow at the United Nations Research Institute for Social Development (UNRISD). The comment is based on her original research on human rights, future generations and the extractive sector while at the University of Essex (2011/2012), as well as a number of forthcoming articles on socially sustainable and human rights-based development policy.
 Moir, Karen A., Intergenerational Equity and Large-Scale Mining in Latin America: The Implications of Limited Human Rights Protections for Future Generations (September 14, 2012): http://ssrn.com/abstract=2286236 or http://dx.doi.org/10.2139/ssrn.2286236
 Report of the Secretary-General, Intergenerational Justice and the Needs of Future Generations (August 13, 2013), A/68/100: http://sustainabledevelopment.un.org/content/documents/2006future.pdf
 Andreou, Alex, “Trickle-down economics is the greatest broken promise of our lifetime” (January 20, 2014), The Guardian: http://www.theguardian.com/commentisfree/2014/jan/20/trickle-down-economics-broken-promise-richest-85
 An article by Kenneth Rogoff was recently shared with me that highlights this point: “Malthus, Marx, and Modern Growth” (March 04, 2014)Project Syndicate: http://www.project-syndicate.org/commentary/kenneth-rogoff-identifies-several-obstacles-to-keeping-living-standards-on-an-upward-trajectory
 Take for example, the case: Supreme Court of India: People’s Union for Civil Liberties v. Union of India & Others, Writ Petition (Civil) No.196 of 2001 (13 December 2006).
 This was first established by the Charter of the United Nations (http://www.un.org/en/documents/charter/preamble.shtml) and reinterated by, among others, the 2003 “Statement of Common Understanding”: http://www.undg.org/archive_docs/6959-The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_among_UN.pdf
 Rio+ Conference Outcome Document, The Future We Want (September 11, 2012) A/RES/66/288 : http://sustainabledevelopment.un.org/futurewewant.html
 According to “Colonialism, Slavery, Reparations and Trade: Remedying the Past?” F. Brennan & J. Packer (eds.) Routledge, 2012; dominant economic theories of today trace their roots to Western Europe and North America during the period of colonialization and “legal” chattel slavery. A triangular system of trade (manufactured goods from Europe for slaves from Africa – slaves from Africa for raw goods from the Americas – raw goods from the Americas for manufactured goods from Europe), as responsible for the industrial revolution. The industrial revolution is coincidentally also the most widely recognized factor differentiating between developed and developing countries.
 The most explicit efforts to represent future generations to-date was taken as an expression of concern: Human Rights Committee. E.H.P. v. Canada, Inadmissibility. Communication No. 67/1980/27, October 1982.
Image Creative Commons Flickr: Lima, Peru DPU-UCL by (c) Fish You
Posted by Future Justice on 26 March 2014