Climate justice: should the unborn have legal rights?

How old will you be in 2050?

Youth delegates at the Copenhagen conference will be calling on negotiators to think about future generations, asking them, 'how old you will be in 2050?'

The biggest victims of climate change have no voice - in fact they are not even born yet - but the argument for giving them legal rights is not so far fetched

In 1990, a young lawyer in the Philippines launched an audacious legal action.

Incensed by the rapid depletion of his country’s natural resources, Antonio Oposa sued the environment minister, Fulgencio Factoran, demanding the cancellation of logging concessions which threatened the 4 per cent of the country’s virgin forest which remained. 

He named the plaintiffs as 44 children, including three of his own, and the ‘unborn generations’ of the Philippines.

When the case was rejected, Oposa appealed to the Supreme Court.

He sent the judges the work of Edith Brown Weiss – an American law professor who pioneered the concept of ‘intergenerational equity’. After long deliberations, the Supreme Court ruled that the case should be heard.

Before a decision was reached, the Philippine government issued an order prohibiting future logging. But 'Oposa v Factoran' remains one of the few cases dealing with the rights of future generations.

Is intergenerational justice making a comeback?

20 years after the Oposa case the concept of intergenerational justice seems to be enjoying a quiet resurgence. 

Last week, UNICEF released a report in which they called for the ‘intergenerational aspect’ to be placed at the heart of climate change discussions.

Similarly, in a speech at the UN, the Pope’s representative, Archbishop Celestino Mighore, called for ‘intergenerational justice’ to address the way the ‘energy consumption pattern of today impacts future generations’.

And Ed Miliband, the UK’s Energy and Climate Change Minister, used a speech at the London School of Economics (LSE) last week to call for the rights of future generations to be ‘institutionalised.’

Legal actions for the unborn

According to Patrick Hegner of the German NGO Foundation for the Rights of Future Generations (FRFG), we are unlikely to see a spate of legal actions on behalf of the unborn. 

‘Even children do not have a full legal standing yet and the fight for women’s rights also took decades,' he says.

Instead Hegner believes intergenerational justice may eventually form part of national constitutions. He said MPs in Germany were already pushing for an amendment to the constitution requiring the rights of future generations to be considered before laws are passed.

Elsewhere, Hungary has taken the unusual step of appointing a Parliamentary Commissioner for Future Generations.

The Commissioner Dr Sandor Fulop calls himself the ‘guardian of future generations’ and sees his role as critical because ‘governments elected for a certain period of time often overlook long term interests for overriding short term benefits’.

What will they want?

One of the challenges of Fulop's job is that judgements have to be made about the interests of people who don’t yet exist.

‘For example, they might prefer development over nature preservation if it provides them with local jobs and therefore the ability to stay in their hometown,’ says Dr Fulop.

But according to Clark Wolf, Director of Bioethics and Professor of Philosophy at Iowa State University, intergenerational justice has more to do with our obligation not to harm people rather than guessing what future generations will value.

‘We have an obligation to leave them a world capable of supporting their needs and providing opportunities for them to build good lives for themselves. When we do things that undermine this opportunity, we are responsible for harming them and unjustifiably putting their welfare at risk.’

How old will you be in 2050?

Guy Shrubsole, a 24 year-old member of the UK Youth Delegation travelling to the Copenhagen Climate Talks agrees.

‘We are travelling to Copenhagen to make the case for future generations and this current generation. One of our slogans is ‘how old will you be in 2050?’ Most of the negotiators will be very old or dead. I will be 64 and hopefully about to retire in a low-carbon Britain,’ he said.

The 23-strong delegation, which will be joined by other youth groups from around the world, wants to see ‘safeguarding the rights of future generations’ at the centre of any agreement that comes out of Copenhagen.

‘We have shown how concerned we are as a society about economic debt. Now we need to consider the even greater ecological debt that we are passing on to the next generation,’ said Shrubsole. 

Intergenerational vs. Intragenerational justice

Yet it may be intragenerational justice that takes centre stage at negotiations in Copenhagen. 

At a meeting in Ethiopia last month, 10 African nations called for ‘Africa to be compensated for climate related social and economic losses’.

The Ethiopian Prime Minister, Meles Zenawi, said Africa would be hit first and hardest by climate change. 

For Professor Charles Okidi, Director of Centre for Advanced Studies in Environmental Law and Policy at the University of Nairobi, the two types of justice go hand in hand. 

‘When we talk about intergenerational justice, we are also talking about intragenerational justice. We cannot consider the needs of future generations without implicitly considering the interests of today's.’

Building higher walls

However Hegner does see a tension between the two notions of climate justice.

‘Take New Orleans as a simplified example. People living there today can protect themselves against floods, like in the wake of Hurricane Katrina, with higher and better dams. With enough money at hand they can adapt to environmental changes.’

‘But if we decide today that we will follow cheaper adaptation strategies instead of mitigation strategies, future generations will pay the bill when climate change consequences reach a threshold at which adaptation becomes impossible,’ he said.

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