4.2.1 Democratic Legitimacy of International Institutions

It is crucial to proceed with a clear understanding of the interrelated concepts of legitimacy and effectiveness. In this book, we apply the following criteria to assess the democratic legitimacy of international institutions.

1. (a) Procedural (input legitimacy), involving inclusive/fair representation, accountability, and transparency and deliberation (discursive quality);

2. (b) Source-based (input legitimacy), involving expertise, legal legitimacy, tradition, and discourse; and

3. (c) Substantive (output legitimacy), involving effectiveness and equity.

The criteria are derived from Sylvia Karlsson-Vinkhuyzen and Antto Vihma (Reference Karlsson-Vinkhuyzen and Vihma2009: 405), Klaus Dingwerth (Reference Dingwerth2007, Reference Dingwerth2014: 1124–47), and Daniel Bodansky (Reference Bodansky1999).Footnote ⁴ The criteria for legitimacy of Karlsson-Vinkhuyzen and Vihma and Bodansky are for legitimacy tout court. Recognising that democratic principles are not the only basis for legitimacy, Dingwerth (Reference Dingwerth2007: 28, 34) argues convincingly that including deliberation strengthens legitimacy, as it involves greater participation of those affected and also entails a discursive quality of the rule-making process. Democratic legitimacy also meshes well with the rationale for proxy-style mechanisms of representation argued for in Chapter 3. The criteria set out earlier are tailored to the context of this book, which includes both the decisions of international tribunals – the ICJ (Chapter 6) and UN Rights of the Child Committee (Chapter 7) – and an international institution for future generations, a proposed UN Special Envoy for Future Generations (Chapter 8). Each criterion is explained later.

It is important to note that we use legitimacy to refer to normative, rather than sociological or subjective legitimacy. Normative legitimacy refers to whether a claim of authority is well founded in some objective sense. Sociological or subjective legitimacy refers to societal acceptance of authority as a sociological fact (Bodansky Reference Bodansky1999: 601; Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 409).

Legitimacy and effectiveness are distinct but strongly interconnected concepts. Under these criteria, on the one hand, substantial effectiveness (output legitimacy) contributes to democratic legitimacy. On the other hand, meeting the requirements of the various elements of procedural (input legitimacy) in turn contributes to effectiveness. Section 4.2.2 sets out specific criteria for the democratic legitimacy of international tribunals (a subset of the broader category of international institutions), before turning to deal with the effectiveness of both international tribunals and institutions for future generations more generally (Section 4.2.3).

The criterion of input or procedural legitimacy involves ‘inclusive representation’ and captures the idea that, for a decision to be democratically legitimate, all those affected by the decision should have a say in the making of the decision: the ‘all affected principle’ (AAP) (Ball Reference Ball, Dobson and Eckersely2006: 137; Goodin Reference Goodin1996: 835; Goodin Reference Goodin2007: 40; Pitkin Reference Pitkin1967: 209). Future generations cannot participate directly in decisions being made now in relation to climate change but can do so through a proxy. The proxy can make reasonable assumptions about the interests of future generations, referring to their vulnerability and including their need for the stable climate and functioning ecosystems upon which their welfare will depend (Vanderheiden Reference Vanderheiden2008: 129). In addition, while beyond the scope of this book, the mandate of a proxy should also reflect moral duties to ecosystems and non-human species (Hoffmann & Dijk Reference Hoffmann and Dijk2023: 79).

In the context of proxy representation of future generations, youth representation of future generations can enhance legitimacy. While the findings of empirical research on whether young people are more concerned about the future than older people are mixed (Gonzalez-Ricoy & Rey Reference Gonzalez-Ricoy and Rey2019: 7), the interests of young people overlap significantly more with the interests of persons not yet born than do the interests of older people. Moreover, climate change will threaten the interests of people who are now younger over a larger span of their lives than the interests of people who are now older. Reflecting this truth, young people have initiated school strikes around the world, as well as launching climate litigation, where they purport to speak not just on behalf of their own interests, but also on behalf of future generations (Donger Reference Donger2022).

The sub-criteria of ‘accountability and transparency’ are problematic in the context we are discussing because it would seem impossible to hold a proxy for future generations accountable to persons not yet born. Nevertheless, accountability can (at least indirectly) be achieved by ensuring that the proxy operates consistently with a mandate that reflects the interests of future generations (Lawrence Reference Lawrence, Cordonier Segger, Szabó and Harrington2021: 607). Moreover, the proxy could be held to account by non-governmental organisations (NGOs) having a role in monitoring the proxy’s performance. Transparency in the proxy’s activities is an important precondition for this monitoring to take place (Hale Reference Hale2008: 73).

The sub-criterion ‘deliberation’ reflects the view that the process of deliberation is an essential element of democratic legitimacy, according to theories of deliberative democracy (Dingwerth Reference Dingwerth2007: 23). As Dryzek and colleagues observe:

Deliberation is often seen as a vehicle for conveying citizen’s views to representative institutions, thereby ensuring their democratic nature (Saward Reference Saward2008). According to this approach, ‘deliberation’ must have particular attributes to be a touchstone of democratic legitimacy: it must be free of coercion and involve participants who give reasons for their proposals and are willing to critically assess others’ proposals oriented towards reaching a consensus based on reasoned argument (Dingwerth Reference Dingwerth2007: 24, 31).

In Chapter 3, we demonstrated that deliberative democracy is a central approach within the debate on democratic theory. By focusing on the institutionalisation of the process of opinion and will formation through various forms of (proxy) representation, this approach is promising in terms of its theoretical and practical implications for the institutional recognition of future generations. Deliberative democracy provides a strong justification for a proxy to represent the interests of future generations in the deliberative process.Footnote ⁵ Indeed, Dryzek and Niemeyer (Reference Dryzek and Niemeyer2008: 481) have argued in favour of a particular version of deliberation that involves articulating discourses rather than positions. If we consider proxies for future generations articulating the interests of persons not yet born, rather than representing them as such, this opens the possibility of a new mechanisms, such as a UN Special Envoy for Future Generations, meeting this criterion (see Chapter 8).

In Japan, social experiments in deliberative democracy have assigned particular groups to represent future generations (as of 2060) and others to represent existing generations (Hara et al. Reference Hara, Yoshioka, Kuroda, Kurimoto and Saijo2019: 1609; see also Uwasu et al., Reference Uwasu, Kishita, Hara and Nomaguchi2020). The groups were tasked with seeking consensus on policy priorities between these two groups. A fascinating result of these early studies is that negotiations between the groups resulted in a consensus in favour of a substantial number of policy priorities which favoured the interests of future generations (Hara et al. Reference Hara, Yoshioka, Kuroda, Kurimoto and Saijo2019: 1612). These studies suggest that human beings – when made fully aware of long-term impacts of policies – may be willing to support policies which benefit the interests of future generations. Moreover, representatives of future generations can negotiate on their behalf and creatively explore the possibility of finding policy settings which address both long- and short-term interests. Through this process, the aim would be to change the mainstream policy discourse to better reflect the interests of both current and future generations (Hara et al. Reference Hara, Yoshioka, Kuroda, Kurimoto and Saijo2019: 1615–16). In addition, proxy-style representatives of future generations could foster further similar types of social experiments and use the findings as a catalyst to move from such research experiments into real-life policy-making.

The criterion of ‘source-based legitimacy’ (input legitimacy) refers to information or knowledge that is seen as authoritative: expertise, legal legitimacy, tradition (including institutionalised processes which can be difficult to change), and discourses (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 410–11).Footnote ⁶ In terms of proxy-style representatives of future generations, ‘expertise’ could refer, for example, to the knowledge that a UN Special Envoy for Future Generations has (or could draw upon) in relation to the types of policies which are most likely to be effective in relation to protecting the interests of future generations. A well-resourced UN Special Envoy (with expert staff) would increase its legitimacy (expertise). Such a mechanism could also draw on scientific expertise in relation to the impact of climate change on future generations by relying on the authoritative reports of the Intergovernmental Panel on Climate Change (IPCC) and consulting with this body.

‘Legal legitimacy’ involves authority based on being in accordance with law, which at the international level involves institutions acting in a manner consistent with the treaty which has established them – which, in turn, derives its legitimacy from states’ consent to it (Bodansky Reference Bodansky1999: 604–5).

‘Tradition’ as a source of legitimacy can include, for example, the legitimacy of the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement (2015) regime as the legitimate form of intergovernmental governance to address climate change (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 410).Footnote ⁷ The case studies in this book involve innovative forms of proxy representation of future generations, involving new institutions (for example, the UN Special Envoy for Future Generations) and existing institutions taking on new roles (for example, the ICJ and the UN Committee on the Rights of the Child). The legitimacy of these forms may be enhanced by the existing legitimacy of the institutions in question; even the legitimacy of the new UN Special Envoy may be affected by the perceived legitimacy of similar UN special envoys.

The sub-criterion of ‘discourse’ can involve legitimacy being linked to particular discourses that are perceived as authoritative by relevant stakeholders. In this book, we draw on elements of discourses that already enjoy considerable support to justify proxy-style mechanisms for the representation of future generations, such as discourses relating to solidarity and sustainable development, which includes the principle of intergenerational equity. These discourses can help justify and bolster the legitimacy of new, proxy-style institutions for future generations (see Section 8.2). But some versions of sustainable development that prioritise development over sustainability can work in the contrary direction (see Section 8.5).

Concepts of sustainability and intergenerational equity have a particular legal form and thus constitute legal discourses that have been taken up both in global climate negotiations in the UN system and in climate litigation around the world. Indeed, policy-makers have started to come under pressure from legal action taken against governments using international tribunals – climate litigation – which gives rise to questions about the democratic legitimacy of such tribunals.

The criterion ‘substantive (output legitimacy)’ covers effectiveness (see further 4.2.3). In this book, we treat effectiveness as a distinct criterion but note that enhancing effectiveness can contribute to the overall legitimacy of a mechanism or institution through its effect on output legitimacy.

Equity as a sub-criterion reflects the idea that substantive legitimacy involves both contributing to solving a particular problem and improving justice. Given the context of extreme global inequality, it is crucial that mechanisms do not just change behaviour or solve a particular problem, but also enhance justice. The connection with effectiveness is that norms or mechanisms perceived to be both legitimate and fair are more likely to be complied with (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 413).

A weakness in the criteria for democratic legitimacy set out earlier is that they rest on deliberative practice only up to the present time, without in any way involving the practice or voices of future generations. This problem can be addressed by expanding our understanding of legitimacy. When political decisions are made that affect future generations, from a democratic theoretical perspective (which aims at the integration of all those affected by a decision), these decisions can only be considered legitimate if they appropriately consider the impacts on future generations’ needs or interests.Footnote ⁸ Legitimacy only makes sense, then, if it is understood as also including what we refer to as ‘future legitimacy’. This can also be justified from a normative standpoint: because, if decisions do not recognise and consider the needs and living conditions of future generations, they also disregard their vulnerability and cannot be considered legitimate from the standpoint of intergenerational justice.

The concept of ‘future legitimacy’ is underpinned by the concept that all generations are of equal value, thus requiring an assessment of legitimacy in terms of both current and future generations. Assessing a new UN Special Envoy for Future Generations against this benchmark would thus require an evaluation from the perspective of future generations. This, in turn, requires imagining that one is living decades in the future, in a world that is increasingly negatively impacted by climate change, and looking back to determine whether such a UN Special Envoy created now was sufficient to address the underlying threat posed by climate change to the international community and all its institutions, with all the consequences for intergenerational justice entailed in this threat.

An objection to this concept of ‘future legitimacy’ could be raised on the grounds that it would inherently prioritise the interests of future generations over current generations. To address this problem, it could be argued that the overarching legitimacy of a particular international institution must be based on the area of overlap between its legitimacy as traditionally understood – what we will refer to as ‘present legitimacy’ – and its ‘future legitimacy’. This would ensure that legitimacy was conceived in a manner which – in terms of its normative framing – did not prioritise either future or current generations’ interests but sought to maximise both.

4.2.2 Democratic Legitimacy of International Tribunals

International tribunals can be considered a subset of the broader category of international institutions. At a general level, therefore, the democratic legitimacy of such tribunals is related to the extent to which they fulfil the criteria (elaborated earlier) which apply to all international institutions. We will see, however, that these criteria require some adaptation to the specific functions that international tribunals perform.

The function of such tribunals is not singular, but includes the resolution of disputes, clarification of international law rules, and the promotion of justice (to which we will return in a moment). The functions of the ICJ are set out in its Statute – a treaty – which refers to the function of the Court as being to ‘decide in accordance with international law such disputes as are submitted to it’ (Statute of the International Court of Justice 1945: art. 38). At a formal level, the authority of the ICJ – and therefore its legitimacy – is derived from state consent to this treaty (Merrills Reference Merrills2011: 116–19). At first blush, it would seem that the Court should only apply international law and not develop it, but, on closer examination, the ICJ has several implicit functions. These include – as the principal judicial organ of the United Nations – supporting the UN’s overall goal of maintaining peace and security and settling international disputes ‘in conformity with the principles of justice and international law’ as expressed in the Charter of the United Nations (1945: art. 1(1); Giladi & Shany Reference Giladi, Shany, Espósito and Parlett2023: 107).Footnote ⁹ A further implicit function is the role of the Court in developing, not just applying, international law (Giladi & Shany Reference Giladi, Shany, Espósito and Parlett2023: 107). Indeed, commentators point out that the ICJ plays a much more activist role than is apparent from looking its Statute (Bogdandy & Venzke Reference Bodandy and Venzke2013: 52–7). Thus, where international law rules are unclear, the ICJ plays an important law reform role through interpreting rules in a particular direction or even further developing rules in a way that allows international law to adapt to new circumstances, in a manner extending well beyond the role of the Court as described in its Statute (Tams & Tzanakopoulos Reference Tams and Tzanakopoulos2010).

Our argument is that, where international tribunals perform this function, courts such as the ICJ should undertake this task by applying a normative framework, according to which the role of the court – whatever other functions it has – should be the promotion of justice, extended to include intergenerational justice.Footnote ¹⁰ Thus, the first prong of our argument is that the effectiveness of the ICJ rests on the extent to which the tribunal acts to promote justice, extended to include intergenerational justice. This rests on the argument that furthering justice is an implicit goal of the Court. As we have seen, furthering equity or justice is a criterion for assessing output legitimacy, which involves examining closely the function or goals of the particular institution. Importantly, this is also a criterion for effectiveness, given this has been defined as including equity (see text described earlier).

In making this argument, we note that this does not preclude international tribunals also playing a key role in promoting other values, such as the resolution of disputes and the facilitation of trade. Our argument is that international tribunals ought to promote justice and, thus, protection of the most vulnerable groups. This rests on the fact that the international community has accepted in the Charter of the United Nations (1945: art. 1(3)) and a raft of global human rights instruments, including the Universal Declaration of Human Rights (UNGA 1948), the idea that all people, regardless of when and where they are born, are entitled to human rights (Beyleveld, Düwell & Spahn Reference Beyleveld, Düwell and Spahn2015; Lawrence & Köhler Reference Lawrence and Köhler2018: 645–46). It flows from this that the international legal order should promote justice defined as ensuring the protection of human rights (Buchanan Reference Buchanan2004; Ratner Reference Ratner2015).

If one accepts that the international legal order should promote justice defined as protection of human rights, it follows that the legal order should also promote intergenerational justice, based on the premise that the entitlement to human rights is both universal and extends into the future (Caney Reference Caney and Humphreys2009).Footnote ¹¹

To make the further argument that international tribunals ought to be democratically legitimate, we contend that several specific criteria must be met. These correspond with the general procedural (input legitimacy) criteria outlined earlier, which involve inclusive/fair representation, accountability, and transparency and deliberation (discursive quality). These criteria are modified to consider the context of international tribunals and the need to be responsive to the interests of future generations.

Thus, as a subset of all international institutions, international tribunals ought to be democratically legitimate and act on behalf of the people, the demos. In addition, the demos must be extended to include both current and future generations. Acting on behalf of the demos requires both:

• impartiality and independence, in terms of ensuring procedural fairness in relation to court/tribunal processes; and

• responsiveness to the demos, involving transparency, deliberation, and participation, including the involvement of affected individuals in the particular processes (von Bogdandy & Venzke Reference Bogdandy and Venzke2014: 151–2). (As we shall see in the case studies on international tribunals, this involves responsiveness to the interests of future generations through proxy-style procedural mechanisms.)

In addition, international tribunals must meet the requirements of output legitimacy (see further).

The content of these further requirements of democratic legitimacy in the context of international tribunals are drawn from principles developed in Western Europe under the Treaty on European Union (TEU) (EU 2008; Bogdandy & Venzke Reference Bogdandy and Venzke2014: 136 et seq.). These rules emerged through extensive deliberative processes involving democratic states over 20 years. Prima facie, this would seem open to criticism as being a narrowly Eurocentric approach; the answer to criticism is that these rules happen to have emerged in Europe but could have emerged anywhere (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 136). Their validity stems from the strength of the deliberative process which gave rise to the principles and from the involvement of democratic states in this process (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 137). Furthermore, there is a strong link to the pragmatist methodology of this book, in that these elements of democratic legitimacy have been proven to work well in practice.

As mentioned earlier, international institutions need to meet criteria of current and future legitimacy. Assessing an international tribunal and its decisions against the benchmark of future legitimacy would require making an evaluation (for example, of an ICJ Advisory Opinion on climate change decided in 2025) from the perspective of future generations. This, in turn, requires imagining that one is living in a future world looking back to determine whether such a decision taken by the Court was sufficient to address the underlying threat of climate change (to the international community and all its institutions, including the Court), with the consequences for intergenerational justice entailed in this threat.

As pointed out earlier, the overall legitimacy of an institution would be found in the area of overlap between present and future legitimacy, thus ensuring the maximisation of future and current generations’ interests.

Bringing these thoughts together, the legitimacy of an international tribunal (both present and future) is dependent on the extent to which it performs its functions (that is, linked to its effectiveness) and the extent to which it promotes justice (extended to include intergenerational justice) are integral to these functions. There is a tension here in that, if a tribunal such as the ICJ ignored its Statute and proceeded to invent international law rules in areas where the rules are clear, it would potentially undermine its legitimacy. As Julius Stone (Reference Stone1954: 368) pointed out, tribunals such as the ICJ are dependent on retaining legitimacy in the sense of state consent. An overly creative ICJ would very quickly undermine its legitimacy in this sense.

On the other hand, the concept of future legitimacy underscores the importance of legitimacy from the standpoint of future generations. This is vital in terms of adjusting the concept to the threat climate change poses to the very existence of all institutions, including the ICJ. This provides an additional lens for viewing legitimacy, which is more responsive to the context in which the law-making process takes place. Thus, an ICJ decision that was too timid in relation to the threat of climate change would undermine both its present and future legitimacy.

We can now map out criteria for assessing the democratic legitimacy of international tribunals and see how these relate to the overarching criteria applicable to all institutions set out earlier (Section 4.2.1). Thus, for the purposes of this book, the democratic legitimacy of an international tribunal is assessed on the extent to which it:

1. 1. operates consistently with the treaty which establishes its mandate, to which states have consented – corresponding to the general criteria element of source based (input legitimacy) in the form of legal legitimacy;

2. 2. operates based on procedures ensuring the inclusive and fair representation of both current and future generations with, in particular:

   • impartiality and independence in terms of ensuring procedural fairness in relation to court/tribunal processes; and

   • responsiveness to the demos, involving transparency, deliberation, and participation, including the involvement of affected individuals in the processes, with future generations involved through proxy-style procedural mechanisms.

   • appropriately considers the impacts on future generations, their needs, or interests, thus ensuring future legitimacy. This involves assessing legitimacy in terms of both current and future generations, with an evaluation being made as to whether a decision made by an international tribunal today would be legitimate from the perspective of future generations. (This could include imagining a world decade from now that has been increasingly negatively impacted by climate change and looking back to assess whether a decision taken by a particular tribunal today was sufficient to meet the needs of intergenerational justice.) These elements correspond to the general criteria elements of procedural (input legitimacy) involving inclusive/fair representation, accountability and transparency, and deliberation (discursive quality).

3. 3. demonstrates expertise both in the form of legal expertise but also drawing on scientific knowledge relating to climate change – corresponding to the general criteria element of source based (input legitimacy) in the form of expertise; and

4. 4. demonstrates output legitimacy defined in terms of taking decisions that:

   • ◦ are effective both in terms of fulfilling the particular functions of the international tribunal as set out in its statute/mandate and contributing to strengthening international law rules relating to climate change and their implementation (see Section 4.2.3); and

   • ◦ enhance substantive justice, extended to include intergenerational justice – corresponding to the general criterion of substantive (output legitimacy), involving effectiveness and equity applicable to all international institutions.

The case studies in this book on the ICJ and UN Committee on the Rights of the Child (see Chapters 6 and 7) demonstrate how the normative framework argued for in Part I can play a positive role in promoting intergenerational justice without undermining the legitimacy of the particular tribunal. These case studies demonstrate that there are possibilities for maximising current and future legitimacy.

4.2.3 Effectiveness

Caney (Reference Caney, González-Ricoy and Gosseries2016: 137–40) points out that short-term policies are not harmful per se; on the other hand, short-termism can be extremely harmful in relation to problems like climate change, where it involves shifting the burden to the next generation. He observes that assessing the effectiveness of future-oriented institutions involves making a judgement about the extent to which such institutions overcome causes of wrongful short-termism; this is his key criterion for effectiveness (Caney Reference Caney, González-Ricoy and Gosseries2016: 140). He also notes that the causes of harmful short-termism involve institutional and human psychological factors. On the institutional side in democracies, there is the harmful impact of short electoral cycles which induce politicians to focus on the short term, while ignorance of the future impact of policy-making is compounded by the dominance of lobbyists pushing short-term, sectoral interests. In addition, there are short-term media cycles, auditing processes, and performance indicators (Caney Reference Caney, González-Ricoy and Gosseries2016: 137–46).

The climate crisis is an example of a creeping environmental problem where incremental impacts make it harder to galvanise support for decisive, responsive action. This is compounded by the lack of identifiable future victims – which are usually represented by abstract statistics. Psychological factors involving positive illusions, procrastination, and self-interest also play a role. Caney sensibly points out that institutional reform proposals need to seek to reduce the impact of underlying negative psychological factors, or at least prevent these factors from impacting the policy-making process. Where possible, he points to the possibility of harnessing these factors to promote long-term interests (Caney Reference Caney, González-Ricoy and Gosseries2016: 145–6).

Increased input legitimacy can result in greater effectiveness, which can, in turn, contribute to legitimacy. Karlsson-Vinkhuyzen and Vihma (Reference Karlsson-Vinkhuyzen and Vihma2009) define the concept of effectiveness as having two dimensions. First, effectiveness refers to the extent to which a norm, rule, or institution achieves a specified objective or goal in relation to a particular norm or institution. Second, ‘problem-solving effectiveness’ refers to how a particular norm can impact behaviour where this is required to solve a particular problem (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 405).

We saw earlier that the output legitimacy criteria used here involve an effectiveness criterion defined in terms of how well the particular institution functions in meeting the goals set out in its mandate (as interpreted by the particular tribunal and its constituencies, in the case of international tribunals), as well as how well it contributes to the strengthening and implementation of international law rules relating to climate change. This has synergies with a goal or functions approach to assessing the effectiveness of international tribunals (Shany Reference Shany2012, Reference Shany2014). In the ICJ Advisory Opinion (Chapter 6) and UN Committee on the Rights of the Child (Chapter 7) case studies, this effectiveness assessment also factors in how well the tribunal addresses the questions put to it by the parties (in the first case) and by the UN General Assembly (in the second case).

The international law rules on climate change are mostly contained in the UN climate treaty regime and in customary international law. Turning to the former, we use the Paris Agreement (2015) as a yardstick or goal for measuring effectiveness in the climate change context. The objectives of the Paris Agreement are set out in Article 2(1) as follows:

In summary, the Paris Agreement objectives include the 1.5°C/2°C mitigation goal, adaptation, climate resilience, and sustainability, plus financial flows consistent with low emissions/climate-resilient development. The Paris Agreement objectives are to be read in conjunction with Article 3 of the UNFCCC (1992), which includes the principle of equity – including by implication intergenerational equity, albeit expressed vaguely.Footnote ¹²

Importantly, for our purposes, effectiveness is understood as including not only just the formal international law rules but also the potential for these rules to flow on to influence behaviour, of both states but non-state actors. This approach is consistent with Steinar Andresen’s concept of effectiveness, that is broken down into ‘output’, ‘outcome’, and ‘impact’ elements, which can sharpen analysis in this area (Andresen Reference Andresen, Rajamani and Peel2021: 990). The ‘output’ involves the formal rules of a regime. In contrast, the ‘outcome’ variable examines actual behaviour. ‘Impact’ refers to the problem-solving ability of a regime. Our case studies assess the outcome and impact of the mechanisms/institutions, while recognising the methodological challenges in drawing conclusions about causal links (Andresen Reference Andresen, Rajamani and Peel2021: 991).

Thus, in the case studies of proxy representation set out in Part III, we evaluate particular international mechanisms in terms of their effectiveness, defined in accordance with:

1. 1) how well they promote justice (including intergenerational justice) and the values of inclusiveness, solidarity, and addressing vulnerability (a normative dimension);Footnote ¹³

2. 2) how well they contribute to strengthening international law rules relating to climate change and their implementation, thus contributing to the modification of the behaviour of states and non-state and substate actors in the direction of these rules; and

3. 3) in relation to international tribunals: how well they perform the functions specified in their particular statute both generally and in relation to the specific mandate for the particular case in question; for example, the UN General Assembly mandate for the ICJ Advisory Opinion on Climate Change (see Chapter 6) or the scope of the complaint, in the case of the UN Committee on the Rights of the Child (see Chapter 7).

Element (b) is, in turn, defined in accordance with the Paris Agreement 1.5/2°C overarching mitigation target, adaptation for current and future generations, climate resilience, low greenhouse gas emission development, and financial flows consistent with low emissions/climate-resilient development. It also includes the extent to which the mechanism strengthens customary international law rules relating to state responsibility for climate-related harms, involving liability, restitution, and compensation.Footnote ¹⁴ While these rules are backward looking, they are nevertheless relevant in terms of future generations’ interests. This is because strong rules in this area can provide benefits for current generations but also incentives for the mitigation of greenhouse gas emissions, with positive consequences for future generations, and can also help fund adaptation efforts, both now and in the future.

Furthermore, we argue (see Section 6.5) that the ‘principle of harm prevention’ involving state responsibility for anthropogenic climate change-related harms should be extended to include harm to future generations. There are tensions here because some states are likely to be opposed to such an extension because it would conflict with their view that they should not be held responsible for past greenhouse gas emissions (Section 6.5). This highlights the fact that two of our case studies (Chapter 6 on the ICJ and Chapter 7 on the UN Committee on the Rights of the Child) involve mandates that combine ‘future-related’ elements with other ‘non-future related’ elements; for example, relating to international legal obligations for ongoing climate change related harm, and/or responsibility in relation to harm which has already occurred. This entails the particular tribunal balancing the interests of current and future generations, which will not always push in the same direction; this complicates the evaluation of effectiveness. This complication is not an issue in relation to the case study on the proposed UN Special Envoy for Future Generations (Chapter 8) because this involves a ‘future-oriented’ mechanism with a mandate envisaged to have a particular focus on future generations’ interests. The UN Special Envoy will most likely have a mandate to highlight such interests and feed this information to decision-makers who will have the task of balancing current and future generations’ interests.

We acknowledge that the functions of the ICJ, as set out in its Statute, and the UN Committee on the Rights of the Child are not to protect the climate system. However, as we demonstrate in the case studies, each tribunal has been tasked with examining international law rules broadly (in the case of the ICJ) and more narrowly (in the case of the UN Committee on the Rights of the Child)Footnote ¹⁵ in terms of their interaction with climate change. Further, given our argument that international tribunals should interpret international law rules in a manner that furthers justice (including intergenerational justice), we assess the extent to which these international tribunals, consistent with their particular mandates, interpret international legal rules in a manner which contributes to making more effective the substance and implementation of international law rules relating to climate change in a manner which furthers justice.

At this point, it is important to note the strong connection between democratic legitimacy and effectiveness. International tribunals that are democratically legitimate are more likely to be effective. Legal systems rely on subjects of the law accepting a court’s decisions to fulfil their functions (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 154). Democratic processes usually promote acceptance (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 155); for this reason, enhancing the democratic legitimacy of international tribunals tends to enhance their effectiveness.

This is consistent with scholars’ observations that international institutions that are perceived to be legitimate are likely to be more effective (Franck Reference Franck1990; Stokke & Vidas Reference Stokke and Vidas1998). Thus, we consider effective decisions of an international tribunal to be decisions which fulfil the particular functions of the tribunal or court as set out in its statute/mandate, as interpreted by the international tribunal and key constituencies. Given the climate change context of this book, we include the additional criterion that effectiveness is measured in terms of the contribution made by the decision of the international tribunal to strengthening international law rules relating to climate change.

The effectiveness of the decisions of these international tribunals needs to be considered broadly, in that their decisions interact with national law in a variety of ways. Thus, an ICJ advisory opinion (which is non-binding) might, for example, delineate principles of international environmental law which are then taken up by a national court in a climate litigation case and/or made binding or operative within a particular national legal order through incorporation in legislation. While under-researched to date, anecdotal evidence suggests that ICJ rulings do feed into professional discourses at both the national and global decision-making level (Giladi & Shany Reference Giladi, Shany, Espósito and Parlett2023: 117).

As we noted earlier, assessing the effectiveness of future-oriented institutions also encompasses the extent to which they address the causes of harmful short-termism. Thus, in evaluating whether institutional proposals to represent future generations contribute to achieving the Paris Agreement goals set out above, we take a broad approach to assessing how these particular goals will be furthered, including through addressing sources of far-ranging, harmful short-termism in relation to climate policy (including institutional and social psychology factors). One significant cause of harmful short-termism is lack of awareness of the long-term impacts of policies. Proxy-style institutions can play a helpful role in combating harmful short-termism by raising awareness of the long-term impacts of laws and policies. Global proxy-style institutions can also have a catalytic role in putting pressure on states to adopt appropriate institutions at the national level. These various dimensions are discussed in relation to each of the case studies.

As observed in Chapter 1, the ultimate effectiveness of proposed new institutions for future generations cannot be judged in advance. As Jonathan Boston cautions, designing institutions for future generations is ‘as much an art than a science’, given the complex causal factors involved in accounting for short-termism (Boston Reference Boston, Linehan and Lawrence2021: 96). Nevertheless, new proxy-type mechanisms for representing future generations have the potential to put pressure on existing institutions to better incorporate the interests of future generations in their decision-making processes. The increasingly catastrophic impacts of climate change – and mounting evidence that the status quo is clearly not working – suggest that experimental proxy-style institutional mechanisms to represent future generations should urgently be pursued, even where the likelihood of success is slim. Given the intergenerational dimension, it is vital to consider effectiveness in terms of both the probability and magnitude of success. Importantly, the strategy of exploring proxy-style mechanisms can be pursued in parallel with efforts to mainstream future generations’ interests in policy- and law-making.

4.2.4 Accessibility and Political Sustainability

In this context, accessibility refers to whether and how likely it is that we can get from ‘here’ to ‘there’ (Caney Reference Caney, González-Ricoy and Gosseries2016: 142).Footnote ¹⁶ In other words, is a proposal likely to be implemented in the real world? Political sustainability refers to whether a proposed new institution can be sustained into the future – obviously a precondition for its effectiveness (Caney Reference Caney, González-Ricoy and Gosseries2016: 141). Here, factors include whether the institution is embedded in a constitution, for example, thus making it more difficult to dismantle. At the international level, this could include whether the institution is embedded in a global treaty – which can create some resistance to its being rapidly undone. The structure of finances is also crucial in this respect, in terms of whether an institution is vulnerable to budget cuts. This risk can be lessened, for example, if the budget necessary for a particular future-oriented institution is part of the core budget of an international organisation.