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.

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 makes a preliminary assessment of the likely effectiveness of the proposed UN special envoy for future generations by examining this proposal through the lens of three frameworks. These frameworks are, firstly, the rationale or normative basis for such a proposal measured against the principles of intergenerational justice, solidarity and vulnerability set out in Chapter 3 of the book. Next, the special envoy proposal is evaluated in terms of its legitimacy and effectiveness using the criteria elaborated in Chapter 5 (inclusive representation, democratic control in the form of accountability and transparency, deliberation, source-based/input legitimacy in terms of expertise, legal legitimacy, tradition and discourse, substantial/output legitimacy in terms of effectiveness and equity). The possible functions of a special envoy are examined and recommendations are made as to what mandate the special envoy should have, applying the matrix of proxy functions elaborated earlier in this book, which involves breaking proxy representation down into its functions (representative, compliance, reform and norm entrepreneurial). Finally, an overarching framework is proposed for measuring the potential effectiveness of the special envoy which incorporates both frameworks – proxy representation functions and democratic legitimacy.

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.

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.

A new way of thinking about environmental problems has emerged since the 1980s. Environmental problems are increasingly seen as systematically entwined, with human action as their primary cause. We are in a new epoch in Earth’s history, the Anthropocene, and climate change is its most immediate and dramatic manifestation. The drivers of the Anthropocene can be seen through the lens of a simple equation: Environmental impact is the product of population, affluence, and technology. Nations and individuals vary greatly in their impacts, so questions of justice are unavoidable. Questions of justice extend across generations as well as among nations and individuals. Ultimately, we must ask what kind of world we want for ourselves and our children.

DOHaD research on preconception, prenatal, and early-life periods of human development can provide a critical resource for legal thinkers interrogating the lines of responsibility for environmental harms (both physical and psychosocial) that affect a child’s growth and development. DOHaD scholars who engage with epigenetic research offer an evidentiary narrative that traces the causal origin of early-life health harms to events that have occurred during pregnancy and prior to conception. Scientific research is increasingly providing evidence that those who suffer disadvantage throughout their lifecourse (in conditions of systemic oppression such as from racism, sexism, or poverty) may be disproportionately subject to molecular changes, creating harmed subgroups that are then intergenerationally reproduced as socially disadvantaged communities. Drawing examples from Australia, the United States, and Canada, this chapter asks what legal obligations, if any, should or can be imposed on contemporary society to ensure not just the future ’health’ of existing children (as they grow into adults) but also the generations of people yet to be born. It is argued that traditional common law legal responses that place responsibility on the individual rather than the community do not ensure intergenerational justice.

Indigenous philosophies bring to life the idea that we are all part of an intergenerational journey. Each of us are born in the imaginations of generations past, with the responsibility to set the course for the journeys that follow. To embed this intergenerational thinking, Indigenous philosophies emphasize the importance of nourishing and regenerative relationships. This chapter explores some of these ideas and describes how they enhance relationships through regenerative practices, invest in relational repair, and enable the ongoing transformation of concepts and ideas toward new imaginaries. In so doing, the paper notes some of the ways that policies and processes can they function to realize intergenerational justice and ground an enduring sense of responsibility to its pursuit and realization.

The chapter proposes a concept of justice for future people that is mindful of Indigenous critiques of the Anthropocene and associated climate horror scenarios. I first review these critiques, which suggest that motivating pro-futural care by dreading an impending climate crisis tends to betray a privileged, often settler-colonial perspective. On this basis, I then review various Indigenous accounts of intergenerational relations, in which I find one common idea in the claim that present generations owe to descendants in part because they received a gift from ancestors. I seek to model and defend this view and its social ontology (I call it “asymmetrical reciprocity”). I then seek to show how asymmetrical reciprocity can help to decolonize the future by disallowing a linear view of time according to which a focus on the future permits the neglect of the past. Hence, climate ethics and intergenerational justice must face the history of colonialism.