Environmental Rights and Future Generations

I/ Right to a clean, healthy and sustainable environment as an independent human right

A human right to a clean environment has not yet been enshrined at a universal level in any binding instrument of international law. However, the interpretation of other human rights can, in individual cases, lead to these rights being recognized as having environmentally relevant implications. For example, representatives of international law draw environmentally relevant effects from the right to health in accordance with Article 12 of the International Covenant on Economic, Social and Cultural Aspects.

The discussion about a human right to a clean environment has gained momentum in recent years. On October 8, 2021, the UN Human Rights Council in Geneva adopted resolution 48/13 in which the right to a healthy environment as a fundamental human right is recognized. The Human Rights Council passed the resolution with 43 out of 47 votes.^[1]

On July 28, 2023, the UN General Assembly in New York endorsed the resolution of the Human Rights Council with its own resolution and recognized the right to a clean, healthy and sustainable environment as an independent human right (Resolution 76/300). ^[2] 161 states voted for this resolution. Eight member states abstained.

Neither resolution is binding under international law. But the UN special rapporteur on human rights and the environment, David Boyd, spoke of a historic breakthrough that should help enforce stricter environmental laws in the future and thus be able to combat climate change, species extinction and air and water pollution more effectively. He called on governments around the world to include the right to a clean environment in national constitutions.

An individual human right to a clean and healthy environment is provided for as part of the “Global Pact for the Environment”.  In June 2017, the French government presented a first draft. The “Global Pact for the Environment” not only aims to establish a human right to a clean environment, but is also intended to codify and consolidate international environmental law.

On May 10, 2018, the UN General Assembly adopted the resolution « Towards a Global Pact for the Environment ». ^[3] The resolution decided to launch negotiations among member states. It created an open-ended working group, open to all member states. The working group met in 2020. But it soon became quite clear that the project’s initial ambition to reach consensus about a legally binding international treaty that would enshrine the general principles of environmental law, could hardly be reached. ^[4]

II/ Human rights of future generations

Neither the Universal Declaration of Human Rights nor any other human rights instrument contain a temporal limitation or limit these rights to the present time. Human rights extend to all members of the human family, including both present and future generations.

Therefore, in 2017, a group of legal and human rights experts from around the world convened in Maastricht and started a six-year process to examine the human rights law as it applies to the human rights of future generations. Their work resulted in the “Maastricht Principles on the Human Rights of Future Generations”. ^[5]

The principles were finally adopted at an Expert Seminar hosted by the Maastricht Centre for Human Rights, Maastricht University, which took place 1 – 3 and was endorsed by nearly sixty leading legal and human rights experts from around the world.

The principles clarify that human rights, including the right to a clean, healthy, and sustainable environment, do not have temporal limitations. Human rights apply fully to future generations. They also provide a progressive interpretation and development of existing human rights standards in the context of the human rights of future generations.^{[6] [7]}

A quarter of the 36 new Maastricht Principles deal with the enforceability of these human rights by victims’ representatives and with the question of effective legal remedy. And half of the twenty-page Maastricht document deals with the obligations of states associated with the human rights of future generations.

Excerpts from the Maastricht Principles as far as environmental aspects are concerned:

Preamble Art. XIV

The human rights of future generations must be understood, interpreted, and integrated within the evolving legal context recognizing humanity’s relationships with the natural world, and the best available science. This context includes the right to a clean, healthy and sustainable environment, the growing recognition of the rights of Nature, and the knowledge systems of Indigenous Peoples, local and traditional communities.

Preamble Art. XV

The cessation of unsustainable patterns of production, consumption and lifestyles is required to guarantee the full enjoyment of human rights, including economic, social, cultural and environmental rights, by all members of present and future generations. Human development must be decoupled from the destruction of Nature and the overconsumption of natural resources to achieve the realization of the human rights of present and future generations and the integrity of nature and natural systems.

Art. 8

Intergenerational Duties and Trusteeship

1. a) Humanity is of the Earth, wholly dependent upon it, and interdependent with it. Every generation lives on the Earth and has an interlinked relationship with Nature and its biodiverse ecosystems. During their time on Earth, each generation must act as trustees of the Earth for future generations. This trusteeship must be carried out in harmony with all living beings and Nature.

b) Each generation has the duty to protect and sustain the Earth’s natural and cultural heritage for future generations.

c) The principle of trusteeship and intergenerational duties includes the decisions each generation makes about the near-Earth environment and the Moon.

Art. 17

Violations of obligations to respect the human rights of future generations include, but are not limited to:

1. a) Depriving future generations of sustainable and equitable enjoyment of natural resources, nature or ecosystems necessary for the enjoyment of their rights to life, health, and an adequate standard of living for themselves and their families, including the rights to food, water, to housing and sanitation;

b) Unsustainably using and depleting natural resources;

c) Polluting or degrading ecosystems;

d) Contributing to a decline in biodiversity or to anthropogenic climate change;

e) Creating human rights risks resulting from the development and/or deployment of technologies for reducing greenhouse gas emissions or removal of carbon from the atmosphere;

f) Engaging in conduct that results in discriminatory access to natural resources and benefits enjoyed by future generations as compared to present generations;

g) Impairing the ability of future generations to prevent and respond to climate change and other forms of environmental harm;

h) Censoring, withholding, intentionally misrepresenting, or criminalizing the provision of information related to the climate crisis;

Art. 23

Access to Information

1. c) States must provide and disseminate information on matters that are important for the effective protection of the human rights of future generations, such as environmental and climate-related information, information on inter-generational toxic, chemical and radiological hazards, technological developments and scientific research. They must respect, protect, and fulfil the freedom to seek, receive, publish and disseminate such information.

The Maastricht Principles are an important instrument to strengthen the newly established human right to a clean, healthy and sustainable environment. They show ways and means to implement this human right with the already existing international human rights law independent from the question whether or not it is legally binding.

III. Decision of the German Constitutional Court concerning the fundamental rights of future generations in the field of climate change

The German Constitutional Court, in its decision on April 29, 2021, declared key elements of the German Federal Climate Change Act unconstitutional. The court determined that the legislation lacked sufficient detail and failed to provide a clear roadmap for achieving emission reduction targets beyond 2030. The ruling stated that the burden of emission reduction was unfairly placed on future generations, and the law did not provide adequate measures to ensure that emission reduction goals would be met.

The court instructed the German government to revise the Climate Change Act by the end of 2022 to set clearer and more ambitious emission reduction targets for the post-2030 period.

This decision was considered significant, as it underscored the legal obligation of governments to take effective action against climate change. The Court stated that the Climate Change Act offloaded major emission reduction burdens onto periods after 2030 and therefore on the younger generation.

The Court stated that the German government has an obligation to protect the future freedoms and fundamental rights of the younger generation, and this results in an obligation to do more already now.

With its ruling, the Court ultimately declares the 1.5-degree limit of the Paris Climate Agreement to be constitutionally binding. Fundamental freedom and the state’s goal of environmental protection oblige the legislature to develop a forward-looking plan to carefully deal with possible residual emissions.

This cannot be guaranteed if there is no concrete planning for the period after 2030 and, moreover, almost the entire budget will be used up by 2030 according to the current climate policy. Climate policy must therefore be accelerated significantly.

Furthermore, the decision laid down some important principles:

1. There is a fundamental right to intergenerational justice and the idea of intertemporal restrictions on freedom. It is unacceptable for the current generation to enjoy privileges at the expense of future and therefore still defenseless generations.

2. The younger generation has a right not to bear the burden of climate change alone. The rights of future generations and the intertemporal safeguarding of freedom in climate protection issues are no longer just general perspectives, but enforceable subjective-public rights at the level of fundamental rights.

3. Shifting the CO2 reduction obligations into the future leads to the danger that practically every fundamentally protected freedom of the younger generation is threatened. Subsequent generations can only avoid experiencing irreversible climate change at the price of radical abstinence.

4. It is not permissible to allow the current generation to consume large shares of a limited resource under comparatively mild burdens, if this would at the same time leave a radical burden on future generations and would expose the younger generations to serious losses of freedom.

IV/ UN Summit of the Future

The “Summit of the Future: multilateral solutions for a better tomorrow” will be hosted by the UN General Assembly on 22-23 September 2024. It aims at strengthening global governance for the sake of present and future generations.

The goal is to agree on a concise, action-orientated outcome document (“A Pact for the Future”) by consensus after extensive intergovernmental negotiations and finally for it to be endorsed by Heads of State and Heads of Government at the Summit.

The UN General Assembly adopted on 8 September 2022 a resolution setting out the modalities for the Summit of the Future. ^[8]. It says inter alia:

1. Decides that the Summit of the Future has an important role to play in reaffirming the Charter of the United Nations, reinvigorating multilateralism, boosting implementation of existing commitments, agreeing on concrete solutions to challenges and restoring trust among Member States;
2. Also decides that the theme of the Summit shall be “Summit of the Future: multilateral solutions for a better tomorrow”;
3. Further decides that the Summit will be held on 22 and 23 September 2024, in New York, preceded by a preparatory ministerial meeting to be held on 18 September 2023;

4. Decides that the Summit will adopt a concise, action-oriented outcome document entitled “A Pact for the Future” agreed in advance by consensus through intergovernmental negotiations;
   
   

The Pact will comprise a chapeau and chapters on sustainable development, financing for development, international peace and security, science, technology and innovation, digital cooperation, youth and future generations, as well as transforming global governance. ^[9]

The Summit will not only deal with specific aspects of sustainable development, but will be an opportunity to discuss on the highest possible level how UN member states can respond effectively to new threats and opportunities for present and future generations. The aim of the Summit is twofold: (i) accelerate efforts to meet existing international commitments and (ii) take concrete steps to respond to emerging challenges and opportunities.

UN Secretary General has outlined his ideas about the summit in a ministerial meeting on 09/09/2023. His speech contains a wide variety of proposals. ^[10]

One of the proposals is that the summit might create the office of a “UN Special Envoy for Future Generations”. The Special Envoy would represent the interests of succeeding generations across the United Nations system and in cooperation with Member States. The envoy would also steer initial steps by the United Nations to bolster the UN capacity to understand, plan and act for the long term.

UN Secretary-General António Guterres is also thinking to create an intergovernmental body that would monitor the implementation of the obligations.

In this context it is being considered to revive the UN Trusteeship Council. This body is one of the six principal organs of the UN. It was established to help ensure that trust territories were administered in the best interests of their inhabitants and of international peace and security. The trust territories — most of them former mandates of the League of Nations or territories taken from nations defeated at the end of World War II — have all now attained self-government or independence.

Therefore, the activities of the Trusteeship Council have been suspended since 1994. Previous commissions and secretaries-general, along with some Member States, have proposed a repurposing of the Council to enhance the governance of the global commons.

Building on these ideas, Member States are invited to consider making the Trusteeship Council available as a multi-stakeholder body to tackle emerging challenges and, especially, to serve as a deliberative forum to act on behalf of succeeding generations.