An atmospheric trust to protect the environment for future generations? Reforming global human rights law
by Dr Peter Lawrence*, Senior Lecturer, University of Tasmania Law School
If we take seriously the principle of equality between persons and the importance of the environment for humanity’s collective prosperity, current generations have an ethical obligation to future generations to avoid actions which irreversibly damage the environment or the climate. This is the general argument underpinning my forthcoming book, Justice for Future Generations: Climate Change and International Law (Edward Elgar, April 2014). To transfer this obligation into law, international human rights instruments, such as the International Covenant on Civil and Political Rights, could be amended to create an ‘atmospheric trust’. This would position current governments as ‘trustees’, holding the environment ‘on trust’ for future generations, and requiring them to take into account the interests of future generations in dealings with the environment.
An Ethical Responsibility to Ensure a Healthy Environment for Future Generations
1. International human rights law has historically failed to recognise a right to enjoyment of a healthy environment. However, environmental harm can impact other recognised rights – including those to life, subsistence, property, health, and water. Given humankind depends on a stable climate and healthy environment for its survival and prosperity, a moral right to enjoy a healthy environment can be conceptualised without substantial difficulty.
2. Climate change affects not just present generations, but has the potential to inflict increasingly harmful, likely irreversible, ecological damage on future, unborn generations. Given the inherent equality between all human beings, and the shared interests that underpin moral human rights, a moral ‘right to enjoy a healthy environment’ can be extended across time to recognise future generations’ right to enjoy a healthy environment.
3. Given this, the ‘harm principle’ and ‘precautionary principle’ together dictate that present generations are morally obliged to avoid inflicting irreversible environmental harm, and to make sufficient climate change mitigation efforts, such that future generations’ right to a healthy environment is not infringed. This principle of ‘intergenerational equity’ represents an ethical obligation incurred by present generations, an obligation recognised in international instruments, including in the 1972 Stockholm Declaration on the Human Environment and the Brundtland definition of sustainable development.
Incorporating these Principles into Human Rights law: Creating an ‘Atmospheric Trust’
4. Incorporation of these principles into international human rights law requires an expansion of the scope, structure and effectiveness of existing legal structures. An intergenerational ‘right to a healthy environment’, and a concomitant obligation on governments to implement this right in domestic law as their capacity increases, should be entrenched in the International Covenant on Economic, Social and Cultural Rights. This right should be able to be invoked against governments, in the courts of any state, by individuals or NGOs on behalf of future generations.
5. Broadly, human rights law contains neither a ‘right to a healthy environment’ nor a ‘right to sustainable development’ as binding, freestanding legal obligations. Instruments containing similar rights, including the 1992 Rio Declaration on Environment and Development and the UN Framework Convention on Climate Change have been controversial, problematic and generally not legally binding. The requirement for potential litigants to demonstrate ‘imminent’ and ‘personal’ damage arising from infringement of their rights is a fundamental limitation of present human rights law, impeding claims being brought on behalf of future generations. Complex legal difficulties also surround proof of ‘causation’, requiring potential litigants demonstrate that a specific defendant’s ‘failures’ directly caused the damage they incurred. Lastly, the nature of international politics and the structure of human rights law, means that it is unclear whether any legal recourse could be sought beyond the territory of a claimant’s country of origin – deeply problematic, given the ‘transboundary’ nature of climate change and its effects.
6. To overcome these problems, a legal mechanism known as an ‘atmospheric trust’ should be created, positioning current governments as ‘trustees’ who hold the environment ‘in trust’ for future generations. This would import a range of legal obligations requiring governments be guided by the best interests of future generations in their dealings with the environment. Similar mechanisms already exist in international law (see, for example, the UN Law of the Sea Convention).
7. Such a model continues to give governments the primary responsibility over protecting the environment and directing mitigation efforts, recognising their unique role in management of public resources. However, such a model places outer limits on their policy discretion, and can increase political pressure on governments to protect the rights of future generations.
8. Recent United States case law, led by NGOs including Our Children’s Trust, represents early movement toward this goal. However, their success has been stymied by US Courts who view climate change policy as an inherently ‘political’ issue unsuitable for legal determination. This, alongside the problems identified above, represents a fundamental limitation upon human rights law’s effectiveness in managing the problems climate change poses. Furthermore, human rights is best seen as a supplement to the ‘main’ game of negotiating effective environmental treaties.
9. The following policy recommendations flow from this analysis:
- A ‘right to a healthy environment’ should be embedded in an international human rights instrument requiring governments to implement this right as their capacity develops;
- An ‘atmospheric trust’ should be inserted in the International Covenant of Economic, Social and Cultural Rights, creating a legal obligation which obliges governments to consider the interests of future generations in a healthy environment;
- NGOs and individuals should be able to bring claims on behalf of future generations against all governments responsible for environmental harm;
- Focus should not be lost on negotiation of effective international environmental treaties, particularly in response to the threat of climate change.
10. Human rights principles stem from humankind’s fundamental equality. Given the importance of a healthy environment to the existence and development of human society, individuals have a ‘moral right’ to enjoy a healthy environment. To ensure future generations can continue to enjoy this right, an enforceable ‘atmospheric trust’ mechanism should be inserted into international human rights law.
The work reported on in this publication has benefited from participation in the research networking programme Rights to a Green Future, which is financed by the European Science Foundation.
*Thank you to Aaron Moss and John Lawrence for invaluable assistance in completing this article.
Image courtesy of why 137
Photo portrait below by Sylvia Lawrence
Dr Peter Lawrence is a Senior Lecturer at the University of Tasmania (UTAS) Law School. Peter’s key area of research concerns the interface between ethics, justice, climate change and international law. Peter just completed a book Justice for Future Generations, Climate Change and International Law to be published Edward Elgar Press, April 2014. In October 2013 Peter successfully defended his Ph.D. at the University of Tilburg in the Netherlands. Previously Peter worked for the Australian Department of Foreign Affairs and Trade (1989-2004) which included leading a number of Australian delegations to negotiations on multilateral environment agreements while working as the First Secretary for the Australian Permanent Mission to the United Nations in Geneva (1996-1999). Peter is currently the Faculty Advisor of the University of Tasmania Law Review (UTLR).
Posted by Future Justice on 4 March 2014
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