The Future Rights of Present Generations: A New Paradigm of Intergenerational Justice?

Francesco Gallarati

University of Genoa

Intergenerational justice is a prevalent idea in contemporary constitutionalism: to date, more than 80 constitutions worldwide contain some reference to the rights or interests of future generations or to the need to preserve natural resources for the benefit of future people. While these constitutional clauses share some common features, closer analysis shows that the understanding of the concept of ‘future generations’ varies significantly – depending on whether the jurisdiction adopts an anthropocentric or ecocentric approach to issues such as climate change or biodiversity loss. 

Ecocentrism & Anthropocentrism: Two Judicial Approaches to Intergenerational Justice

In a first group of countries, mostly located in the global south, future generations are conceived of as metaphysical entities, comprising the entire human species, which are entitled to constitutional rights not unlike nature or other non-human subjects. A clear example of this approach can be seen in the Colombian Amazon decision adopted by the Colombian Supreme Court in April 2018. In that case, the Court upheld a claim filed by a group of young plaintiffs, aged between 7 and 25, alleging that the government’s failure to reduce deforestation threatened their constitutional rights to a healthy environment, to life and health (Art. 79, 11 and 44). In its reasoning, the Supreme Court clearly set out the philosophical bases on which the protection of future generations’ rights rests in the ecocentric view: an ethical duty of solidarity within the human species and the intrinsic value of nature, of which future generations are part (section 5.3). On this basis, the Supreme Court ordered the Government to adopt and implement an action plan as well as an “intergenerational pact” to address deforestation in the Colombian Amazon. 

A different, more anthropocentric notion of future generations emerges from the landmark Climate Protection Act (“Bundesklimaschutzgesetz” or “KSG”) decision delivered by the German Federal Constitutional Court in March 2021. In that case, the plaintiffs claimed that the 2030 greenhouse gas emission reduction target set in the KSG was insufficient, as it would offload disproportionate portions of the reduction burdens required under Art. 20a of the Basic Law onto the post-2030 period. In its decision, while establishing that climate-related burdens must be equally distributed between generations, the Court did not recognise future generations as holders of fundamental rights. It rather grounded its reasoning on the State’s duty to protect the constitutional right to freedom under article 2 of the Basic Law, which according to the Court must be guaranteed not only in the present but also in the future. Therefore, the Court ordered the legislator to set a reduction pathway leading to climate neutrality in such a way that the reduction burdens are not unevenly distributed over time at the expense of future freedom. 

This decision has paved the way for the establishment of a new paradigm of intergenerational justice that can be referred to as ‘the future rights of present generations’. In fact, the German court’s decision showed that, in order to provide intertemporal protection for constitutional rights, it is neither necessary nor useful to refer to the much-discussed category of ‘rights of future generations'. Indeed, by projecting present-time rights into the future, this new paradigm (a) allows to achieve the same objectives underlying the concept of the rights of future generations, (b) without incurring some of the conceptual ambiguity and strategic inconsistencies that have hindered the affirmation of the latter in most constitutional systems.

(a) The Rights of Future Generations: A No-longer-needed Concept?

On the one hand, it should be recalled that the concept of the ‘rights of future generations’ began to gain momentum in the legal and philosophical literature in the 1970s, in tandem with international awareness of the negative effects on the environment of human activity and of the limits to growth. At the time, however, environmental problems seemed to lie in an uncertain and distant future. Therefore, the recognition of constitutional rights to future generations was aimed at rebalancing the democratic process, which would otherwise favour the pursuit of present needs at the expense of future ones. 

Today the situation has changed radically: environmental issues such as climate change have a much more certain and much closer time horizon than previously imagined. Current studies show that, to limit global temperature rise to below 2° C, climate neutrality must be achieved by mid-century, i.e. when most of the world’s current population will still be alive. The fight against climate change, therefore, is principally a concern of present generations, whose future freedoms would be compromised if today’s governments fail to take the necessary measures in time. What need is there, then, to invoke the rights of future generations, since the future enjoyment of those of present generations is at stake? 

(b) Present v Future Generational Rights: Why Pick One Over the Other?

On the other hand, focusing on the future rights of present generations – rather than the rights of future generations – helps overcome three commonly raised objections. 

First, the primary beneficiaries of the duty of protection would not be the unborn or even entire generations, but living persons who wish to continue to enjoy their constitutional rights in the future. This reading is then fully compatible with the centrality accorded to the human person in many (mainly Western) constitutions, which would be at odds with the granting of basic rights to people who do not yet exist or to metaphysical entities. 

Second, this reading might help mitigate the problem of standing, as intertemporal claims could be raised by living people of all ages, provided they can demonstrate (in the words of the German Constitutional Court) an ‘advance interference-like effect’ on their own constitutional rights. That is, in order to have standing, claimants would have to prove that legislative measures allowing environmentally harmful activities today significantly reduce their chances of continuing to enjoy the same freedoms in the future.

Finally, it could help resolve some of the issues surrounding the notions of ‘rights’ and ‘interests’ of future generations, namely the need to establish which rights future generations are entitled to, and what their interests may be. Indeed, according to this vision, the ‘rights of future generations’ would ultimately consist in the future projection of the rights of present generations. In this sense, it should be noted that the fundamental rights to which the German Constitutional Court’s decision granted intertemporal protection were not the right to life or health, but paradoxically the ‘right to pollute’, i.e. the freedom to continue to exercise those activities that, at present, involve the emission of greenhouse gases.

Two Possible Objections and Responses

Having set out, albeit briefly, the salient features of this new paradigm, I will now try to anticipate some objections that could be raised against it. 

First, it could be argued that, by referring to the future rights of living persons, the strategic and conceptual advantage granted by this approach can encompass at most one human lifespan, thereby implying that longer-term effects remain uncovered. One could cite the example of nuclear waste, whose negative effects could manifest themselves many generations after their causation. A possible response to this objection rests on the assumption that, at any given time, at least two overlapping generations coexist. Therefore, at any time, the older generation would have a twofold obligation towards the younger one: on the one hand, it would have to safeguard its right to continue to enjoy its freedom over time (i.e. for its lifetime). On the other hand, it would also need to behave in such a way that, in order to fulfil its duties towards the successive generations, the younger generation would not be forced to endure disproportionate restrictions on its freedom. In this way, through such a chain of obligations, the interests of even remote future generations could acquire legal representation in the present time in the form of a future projection of the rights of younger generations.

A second, more radical objection could be that instead of abandoning the individualistic approach that characterises the Western legal tradition and which, according to many, is a cause of environmental deterioration, this approach projects the same anthropocentric vision into the future. Without entering the anthropocentrism/ecocentrism debate – which would lead me out of the scope of this contribution – it must be considered that environmental problems such as climate change require immediate action. It may be that ecocentric legal concepts – such as the rights of nature – will prove more effective in the long run; what is certain, however, is that to take root in most countries they would require a radical change of cultural paradigms, which at present seems a long way off. The new understanding that emerges from the decision of the German Constitutional Court, on the other hand, does not question the basic postulates of liberal constitutional tradition, but aims to reinterpret them in the light of intergenerational solidarity. While it may not be a perfect solution, it promises a path forward towards a more just and ecologically balanced constitutionalism. 

This post is based on the author’s presentation to the IACL-AIDC roundtable on “Environment, Climate Change and Constitutionalism”, held on 20-21 October 2022 in Ankara, Turkey. 

Francesco Gallarati is Research Fellow of Comparative Public Law, University of Genoa, Italy 

Suggested citation: Francesco Gallarati, ‘The Future Rights of Present Generations: A New Paradigm of Intergenerational Justice?’ IACL-AIDC Blog (19 January 2023) https://blog-iacl-aidc.org/2023-posts/2023/1/19/the-future-rights-of-present-generations-a-new-paradigm-of-intergenerational-justice.