Chapter 4 unpacks the reasons why international human rights is currently incapable of adequately protecting the environmental rights of future generations. It begins by explaining that future generations are not legally recognised as people who possess human rights and governments are not obliged to protect them. Even if those rights were recognised, there are no clear pathways for enforcing them. As the chapter explains, international human rights violations can be litigated by ‘victims’, who are people directly affected by an actual or imminent violation. The law does not allow for legal claims on behalf of people who do not yet exist or for harms that have not yet occurred or are not imminent, even though they may be foreseeable. Without standing to bring a legal action, the rights of future generations cannot be litigated and enforced within international human rights bodies. Additional challenges exist in relation to proving a breach of the law and establishing a causal connection when the alleged harm has yet to occur. Finally, the chapter explains the difficult task of balancing competing human rights interests and obligations across generations. After outlining these numerous challenges, the following chapter will offer a possible way forward.

Chapter 1 sets the scene for the book by introducing the human rights impacts of long-term environmental harm and the limitations of international human rights law in responding to those problems. It presents the rationale for the book, arguing that human rights law ought to contribute to intergenerational justice through better protection of future generations’ rights. Furthermore, in order for human rights law to be effective in guarding against the human rights impacts caused by serious environmental harm, it must be able to address future threats, not just current harms. A more future-oriented approach to human rights protections would also help align the law more meaningfully with non-Western and Indigenous views of intergenerational rights and responsibilities.

Building on the problems identified in Chapter 4, Chapter 5 presents a new theory and practice of environmental rights which it argues would better protect the rights of future generations. First, it outlines a theory of intergenerational responsibility for international human rights law, drawing on Edith Brown Weiss’s theory of intergenerational equity. The chapter takes the tripartite duties commonly used in international human rights laws (the duties to respect, protect and fulfil human rights) and gives them new meaning through the application of an intergenerational lens. The result is a typology of duties for states which can be used to articulate expectations and standards with respect to the rights of future generations. The chapter also outlines changes which are needed to the rules of standing and causation to enable the litigation of future generations’ environmental rights. The proposed changes are informed by existing principles of environmental law, including due diligence and the precautionary principle, which help to navigate questions regarding risk and uncertainty and enable a more meaningful application of human rights law to threats of future harm.

Chapter 6 presents the first of three case studies which road-test the theory and practice of environmental rights that was presented in Chapter 5. This first case study examines two forms of unconventional natural resource extraction: hydraulic fracturing (or fracking) and deep seabed mining. The chapter outlines the environmental risks associated with each of these practices. In particular, it outlines the many uncertainties surrounding the environmental impacts of deep seabed mining, given that we still have so much to learn about deep sea ecosystems. The chapter translates these environmental impacts into human rights terms, identifying many ways in which human rights may be impacted into the future. It then considers how the approach proposed in Chapter 5 could be used to litigate potential violations of future generations’ rights. It highlights the issue of balancing current generations’ interests in securing economic benefits and natural resources, including those necessary for the transition to renewable energy.

The second case study in Chapter 7 presents a detailed examination of the future environmental rights implications of climate change. It addresses the implications for future generations of climate change itself, as well as our responses to climate change, including adaptation measures, decarbonisation and geoengineering. Each of these is considered in terms of the potential impact they might have on the human rights of future generations. The chapter also provides an overview of recent human rights-based climate litigation, with a particular focus on cases that have been brought on behalf of future generations or by children and young people. These cases show that, while some cases have successfully argued for intergenerational climate justice, international human rights law remains an unfriendly forum for litigating future environmental harms or the rights of future generations. The chapter concludes by considering the ways in which this could be improved through the application of the new theory and practice outlined in Chapter 5.

In concluding the book, Chapter 9 summarises the lessons that were learned through the three case studies and reiterates the reasons why international human rights law needs to be reformed to better protect the environmental rights of future generations. It highlights the perpetual challenge of balancing the interests of current and future generations, but argues these can be mitigated by articulating new standards and expectations for states which incorporate notions intergenerational responsibility and fairness. Reforms are needed to ensure at least a level playing field, where future generations’ rights can be recognised and given the same weight as those of present generations. Chapter 9 concludes by calling for a multifaceted reorganisation of many areas of law, politics, economics and social policy, and offers hope that reforms of international human rights law might play a leading role in that undertaking.

Chapter 2 presents a detailed rationale for expanding international human rights law to protect the environmental rights of future generations. It draws on various theories of intergenerational responsibility, including the work of Edith Brown Weiss and theories of intergenerational equity, planetary trusts and the capabilities approach. The chapter also considers various Indigenous worldviews, such as the Seventh Generation principle of First Nations peoples in North America and the beliefs of Australia’s Aboriginal and Torres Strait Islander peoples, which embody a strong sense of intergenerational responsibility. The deep feeling of connection with ancestors and descendants that is held by many Indigenous peoples translates into notions of custodianship towards the land and obligation to people across time. These worldviews have much to offer as we think about the future direction of human rights law, and provide another justification for making the law more responsive to future environmental threats.

Chapter 8 presents the third and final case study in the book, which considers the potential for international human rights law to address potential future harms caused by nuclear energy. The chapter explains the various ways in which nuclear energy can impact on environmental rights, from the initial mining and processing of uranium, through the operation of power plants and the long-term storage of waste material. It notes that while the most catastrophic forms of harm from nuclear energy are relatively unlikely to occur, the lower-level risks associated with waste disposal will persist for millennia. The time-scale of potential harm raises new questions about the ability of human rights law to address uncertainty and risk and the potential for due diligence and the precautionary principle to guide state decision-making in a way that adequately respects future generations’ rights. The chapter argues that not all risks of future harm should be viewed as violations of future generations’ rights, but that an appropriate framework still needs to be in place to ensure human rights risks are assessed and managed in a way that aligns with intergenerational justice.

Chapter 5 traces the history of a number of existing UN mechanisms which represent the interests of particular vulnerable groups in the international system (persons with disabilities, women, and children). The aim of this analysis is to see what types of normative discourses have found traction and led to the development of institutions to represent these vulnerable groups, in order to ascertain the type of normative arguments that would gain support in arguing for international institutions to represent future generations. An important lesson from the case studies is that a normative discourse in which development concerns feature prominently, has been a common thread running through the history of these UN mechanisms. The chapter analyses the differences and similarities between arguments which justify the institutions which have been put in place to represent these vulnerable groups, with arguments used to justify institutions to represent future generations.

Chapter 2 demonstrates that traditional concepts of representation – including agency-based, and audience models – struggle in their application in relation to future generations. Direct and indirect forms of proxy representation are distinguished and legal forms of proxy representation. Various modes of proxy representation at the national level are set out, which are relevant due to the inspiration they provide for proposals at the international level. A range of existing forms of proxy representation in the international legal order are set out, in order to demonstrate that proxy representation of future generations represents a modest rather than radical reform. We then assess the extent to which indirect representation of future generations is incorporated in the international legal order in terms of environment-related principles. A matrix setting out the range of functions which proxy representation may perform is set out. By distinguishing these functions, a more nuanced understanding can be obtained as to the functions of existing modes of proxy representation as well as reform proposals.

Chapter 6 contains a case study in which we sketch how the normative framework set out in part A of the book, can be used as a basis for arguments that can be made in relation to the ongoing ICJ advisory opinion on climate change. It argues that the court should interpret international rules in a manner which furthers justice including intergenerational justice. This is essential for maintaining the court’s legitimacy, which must include its future legitimacy. The court should flesh out the principle of intergenerational equity by defining it in terms which require states to take climate action to ensure protection of the human rights of future generations necessary for them to lead a decent life. In addition, the normative framework is used to argue for: (i) an particular interpretation of the no harm rule to incorporate harm towards future generations and (ii) reform of the procedural rules of the ICJ so as to allow NGOs and scientists to make amicus curiae submissions (directly or implicitly) on behalf of future generations in proceedings before the court.

The Conclusion reiterates the overarching argument of the book, namely that the search for – and collective experimentation with – new forms of representation are immensely important forms of sustainable climate policy. Through proxy representation, future generations can be practically and institutionally involved in climate law and policy-making, considering both the vulnerability of future generations and their distinctive interests. The chapter discusses the need to find synergies between proposals for proxy-style mechanisms to represent future generations and development policy. New avenues for research are suggested, including the way in which science and scientific discourse can be a proxy for future generations’ interests, and also the way in which proxy representation of future generations features in climate treaty making processes and climate activism more generally.

In Chapter 3, firstly, we reconstruct central theoretical models of democracy and enquire how an expansion of representation mechanisms for future generations could be conceptualised within these justificatory narratives. Secondly, we analyse the values that underlie democratic practices which can be helpful for advancing proxy representation at the international level by providing ethical criteria for such reforms. This involves analysing the discourses of intergenerational justice, solidarity and vulnerability. The chapter then turns to examine how these discourses can be translated into political forms of proxy representation by drawing on the all affected principle which requires that those affected by a decision have a role in the making of that decision, which is argued to be an element of most, if not all theories of democracy. This in turn is hypothesised to provide a basis for extension of the demos to include future generations, which then justifies proxy forms of representation to enable their representation . Human rights are argued to constitute a practice of global values which provides a powerful normative orientation for climate law and policy-making.

Chapter 7 involves an analysis of the 2019 case brought to the UN committee on the rights of the child by 16 young people (Saachi et al. 2019). The case is assessed in terms of its legitimacy and effectiveness in promoting intergenerational justice discourses and its capacity to act as an indirect proxy representative for future generations. The chapter argues that while there are distinct limitations in the rights of the child complaints system (with an asymmetry in power between children and the states involved, with decisions being non-binding), the Saachi case, nevertheless, has the potential to have both a political and legal impact. It is one of the few avenues at the international level which allows young people increasingly impacted by climate change to have a voice. It can also allow young people to act as proxy representatives for future generations, while the Committee to date has been reticent to move in this direction. Finally, some elements of the decision are likely to be taken up in future climate litigation at the international and national levels.

Chapter 9 examines the principle of the duty of care in the context of climate litigation. The authors explore how this principle has been invoked in a growing range of jurisdictions, in different ways, to hold governments and corporations accountable for their respective contributions to climate change. By analysing judicial decisions in prominent cases such as Urgenda and Milieudefensie in the Netherlands, Neubauer in Germany, and Notre Affaire à Tous in France, the authors explore the potential of the duty of care principle to compel more ambitious climate action in pending and future cases. The emerging best practice they identify suggests a growing willingness of courts to recognise a duty of care for governments and corporations towards citizens in relation to climate change.

Chapter 5 on Admissibility delves into the factors determining whether a climate case can be heard in court. It presents a clear understanding of the criteria for admissibility and their potential implications on the trajectory of climate litigation. The chapter also delves into the interplay between domestic and international legal rules and norms and their influence on the criteria for admissibility. The author’s analysis reveals that a restrictive interpretation of admissibility criteria can present formidable access to justice barriers, particularly for those most impacted by climate change. In light of these challenges, the author’s distillation of emerging best practice highlights instances where courts and quasi-judicial bodies have interpreted admissibility criteria to ensure access to justice. Specifically, the chapter highlights cases where these bodies have considered human rights and justice imperatives in their admissibility decisions. These decisions highlight the potential for an inclusive and equitable approach to climate litigation, one that aligns with the global nature of the climate crisis and the urgent need for climate justice.

Chapter 14 on Intergenerational Equity sheds light on how this principle, which posits a responsibility to ensure that future generations inherit a habitable planet, has been invoked in climate cases to date. The authors examine how this principle has been interpreted and applied across different jurisdictions, highlighting the notable contributions of jurisprudence from the Global South in shaping the development and understanding of the principle. Through an examination of leading cases from around the world, they illuminate how courts in these jurisdictions have infused their decisions with a consideration for future generations, thereby advancing a more inclusive and long-term perspective on climate justice. The authors distil instances of emerging best practice where the principle of intergenerational equity has been invoked to guide legal reasoning and judicial decisions in climate cases. They underscore the potential of this principle to shape future climate litigation, particularly as the impacts of climate change increasingly span across generations.