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SYMPOSIUM ARTICLE
Transforming the Rule of Law in Environmental
and Climate Litigation: Prohibiting the Arbitrary
Treatment of Future Generations
Ψ
Katalin Sulyok
Department of International Law, ELTE Eötvös Loránd University (Hungary)
Email: Sulyok.katalin@ajk.elte.hu
Abstract
This article maps the shared legal anatomy of climate and environmental lawsuits, in which
plaintiffs claim protection for future generations before domestic or international courts.
By closely analyzing the litigation strategies of plaintiffs and the inquiry of courts, the
article argues that these proceedings revolve around structurally similar legal standards
across domestic and international jurisdictions, which correspond to five normative
requirements flowing from the rule of law: namely, respect for human rights, certain
quality of law requirements, prohibition of arbitrary exercise of governmental powers,
non-discrimination, and access to justice. The cross-jurisdictional analysis shows that courts
appear to be increasingly willing to protect future generations against arbitrary treatment by
present-day decision makers. The article appraises whether such an intergenerationally
sensitive reinterpretation of the rule of law could help to change the short-termist paradigm
of environmental and climate law.
Keywords: Future generations; Intergenerational equity; Climate litigation; Environmental litigation;
Rule of law; Arbitrariness
1. Introduction
Lawsuits that are challenging states’environmental or climate policies in the name of,
or with reference to, future generations and their long-term interests are becoming a
transnational trend. This pattern of litigation, referred to here as ‘future generations
lawsuits’, includes climate litigation,
1
as well as environmental and biodiversity
litigation,
2
and transcends continents, legal systems, and legal cultures. At the same
Ψ
This contribution is part of a collection of articles growing out of the ELTE-Aarhus Joint Workshop on
‘Future Generations Litigation’, held at the ELTE University in Budapest (Hungary) on 8–9 June 2023.
1
J. Setzer & C. Higham, Global Trends in Climate Change Litigation: 2023 Snapshot (Grantham
Research Institute on Climate Change and the Environment and Centre for Climate Change
Economics and Policy, London School of Economics and Political Science, 2023), available at:
https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2023-
snapshot.
2
G. Futhazar, S. Maljean-Dubois & J. Razzaque (eds), Biodiversity Litigation (Oxford University Press,
2022).
© The Author(s), 2024. Published by Cambridge University Press. This is an Open Access article, distributed under the terms
of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted
re-use, distribution and reproduction, provided the original article is properly cited.
Transnational Environmental Law (2024) 1–27
doi:10.1017/S2047102524000116
https://doi.org/10.1017/S2047102524000116 Published online by Cambridge University Press
time, these proceedings are highly diverse: they are launched under various substantive
legal bases, by different kinds of plaintiff, against different respondents, and they seek
different types of legal remedy before various national and, increasingly, international
fora. Notwithstanding these differences, the lawsuits appear to share some structural
similarities, which will be the focus of this article.
The analysis zeroes in on domestic and international lawsuits, in which the
interests of future generations are invoked in order to claim and establish new or
enhanced obligations for states in relation to posterity in the context of setting their
environmental or climate policies. The aim of this cross-jurisdictional comparative
analysis is to map the common legal architecture of future generations litigation by
sketching the doctrinal ‘frontlines’of such lawsuits. In other words, the article will
focus on the legal doctrines based on which plaintiffs claim, and courts increasingly
appear to afford, protection for long-term interests and needs across domestic and certain
international jurisdictions. These demands, as I will argue, correspond to a handful
of structurally similar legal safeguards that are derived from the imperative of the rule
of law.
I use the term ‘rule of law’in a broad and normative sense, as a guarantee against the
state’s arbitrary exercise of power over the individual.
3
This article will show that the
shared legal anatomy of future generations litigation lies in five more concretely defined
requirements of the rule of law: (i) respect for human rights, (ii) certain quality of
law requirements, (iii) prohibition of arbitrary exercise of governmental power,
(iv) non-discrimination, and (v) access to justice.
4
The cross-jurisdictional analysis
will examine the ways in which these safeguards play out in the context of future
generations litigation, where courts appear to be increasingly willing to reinterpret
rule of law obligations in order to protect future generations against arbitrary treatment
by present-day decision makers. In such an extremely rapidly proliferating field as
future generations litigation it is not feasible to include every relevant decision in this
article. The cases under review, therefore, have been selected to provide examples of
the argumentative solutions of a wide range of jurisdictions, thereby shedding light
on some cross-jurisdictional trends in the adjudicative practice.
The central claim of the article is that states are increasingly held accountable by
courts –thus far primarily by domestic fora –when decisions by governments or the
legislature undermine the vital environmental interests of posterity in an arbitrary
manner. I understand arbitrariness here as the capacity of present-day decision makers
to benefit from the inherent intergenerational asymmetry between those whose conduct
generate long-term risks for the stability of the climate and the ecosystems and those
who bear the devastating consequences of such actions. State policies that inflict
harm on future generations in full awareness of the potentially catastrophic long-term
3
A.V. Dicey, Introduction to the Study of the Law of the Constitution (McMillan and Co., 1982, first
published 1885), p. 114.
4
The article builds on the taxonomy of rule of law requirements as adopted by the Council of Europe
(CoE); see Section 3for more detail.
2 Katalin Sulyok
https://doi.org/10.1017/S2047102524000116 Published online by Cambridge University Press
impacts revealed by robust scientific insights can be viewed as unreasonable
5
and
irrational
6
–and, even more fundamentally, as ‘arbitrary’.
As a caveat, the scope of this analysis is confined to examining legal claims that seek
to protect the ‘environmental’interests of future generations –namely, a safe and
liveable planet and climate for our descendants. Needless to say, posterity has a host
of other interests, and their liveable future is not only jeopardized by the climate and
ecological crises but also by a range of other threats, including nuclear wars,
pandemics, and artificial intelligence. The doctrine of intergenerational equity has also
been invoked in contexts outside the ‘environmental’or ‘climate’protection discourse –
concerning, for instance, the accumulation of sovereign debts
7
or the sustainability
of pension schemes.
8
This article, however, will only examine the ways in which states
can be held liable for undermining intergenerational needs when designing their
environmental and climate measures.
The rule of law framework adopted in this article serves both analytical and
explanatory functions. On the one hand, it provides an anchor for the comparative
analysis; this analysis seeks to make sense of the trends in a booming field that may, at
first glance, appear to feature divergent legal arguments and even ad hoc judicial
developments tied to the specificities of respective jurisdictions. On the other hand, the
framework also helps to explain some of the drivers of these lawsuits and explores
some wider, more systemic implications that such lawsuits may bring to the current
paradigm of environmental and climate governance. The analysis will ultimately appraise
whether an intergenerationally sensitive ‘revolutionary’reinterpretation of normative
rule of law guarantees can help to change the short-termist paradigm of the domestic
decision-making process that has led to and is dominating the Anthropocene.
The analysis is structured in five main parts. Section 2identifies three layers of
connections between the rule of law and the current planetary crises. The interrelations
identified here not only demonstrate how the rule of law could be thrown into disarray
if critical thresholds that mark ‘the safe operating space of humanity’
9
were to be
exceeded, but also how the concept has played a critical role in producing such
planetary risks and how it could be transformed into a means of abating them.
Section 3identifies the main normative obligations flowing from the rule of law, and
explains why these safeguards offer an influential point of intervention for courts in
various jurisdictions to impose long-term obligations on states. Section 4turns to
specific rule of law guarantees, and maps cross-jurisdictional patterns of mobilising
these intergenerational rights and obligations before different national and
5
P. Paiement, ‘Urgent Agenda: How Climate Litigation Builds Transnational Narratives’(2020) 11(1–2)
Transnational Legal Theory, pp. 121–43, at 141.
6
R. Carnwath, ‘Environmental Law in a Global Society’,28
th
Sultan Azlan Shah Law Lecture,
Kuala Lumpur (Malaysia), 9 Oct. 2014, p. 262, available at: https://www.sultanazlanshah.com/pdf/
2021/SAS_Lecture_28.pdf.
7
J. Pinheiro, ‘Generational Accounting in Portugal: An Assessment of Long-Term Fiscal Sustainability and
Intergenerational Inequality’(2021) 20 Portuguese Economic Journal, pp. 181–221.
8
S. Kunieda, ‘Japanese Pension Reform: Can We Get Out of Intergenerational Exploitation?’(2002) 43(2)
Hitotsubashi Journal of Economics, pp. 57–71.
9
J. Rockström et al., ‘A Safe Operating Space for Humanity’(2009) 461 Nature, pp. 472–5.
Transnational Environmental Law 3
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international fora. Section 5concludes by appraising the potentially transformative
impact that future generations litigation may have for the short-termist paradigm of
environmental and climate governance by developing an intergenerationally conscious
reading of states’obligations under national and international law.
2. The Rule of Law and the Ecological and Climate Crises: Three Layers of
Interconnections
The epoch of the Anthropocene
10
is marked by humanity’s role as the dominant
forceofchangeonEarth.
11
Our activities and technologies are now capable of
fundamentally altering ecosystems and the geochemical cycles of the planet. The last
decades have seen an unprecedented environmental and climate crisis that will
fundamentally impair the living conditions of future generations –if it remains
unabated within a rapidly closing time window.
12
It is now widely accepted that the
climate crisis is, essentially, a human rights crisis.
13
This article will take a step further
and argue that the planetary crises challenge the very concept of the rule of law.
The multifaceted connections between the rule of law and the planetary risks of the
Anthropocene can be depicted through three distinct layers. The first is the most
overt linkage, concerning the interdependence of sustaining the rule of law and a stable
climate and thriving ecosystems. The second layer, perhaps less obviously, relates to
the pivotal role that the rule of law has played in charting humanity’s course into
the Anthropocene. The third layer, however, highlights that rule of law guarantees,
via an intergenerationally sensitive reinterpretation, can also be key in steering
humanity towards a sustainable future.
Turning to the first layer, several phenomena attest to a mutual interdependence between
securing the rule of law and maintaining a liveable planet. Multiple experts have
voiced concerns that democracies and the rule of law will not survive this century if our
generation fails to take sufficiently stringent and immediate measures to protect the
ecosystems and the climate.
14
Philip Alston, United Nations (UN) Special Rapporteur on
Extreme Poverty and Human Rights, warns that poverty fundamentally threatens the
rule of law, as massive inequalities between nations may result in ‘climate apartheid’,
15
10
P.J. Crutzen, ‘Geology of Mankind’(2002) 415 Nature, p. 23.
11
C. Folke, ‘Our Future in the Anthropocene Biosphere’(2021) 50 Ambio, pp. 834–69.
12
‘Summary for Policymakers’, in Intergovernmental Panel on Climate Change (IPCC) (H. Lee &
J. Romero (eds)), Climate Change 2023: Synthesis Report. Contribution of Working Groups I,
II and III to the 6
th
Assessment Report of the IPCC (IPCC, 2023), pp. 1–34, at 20–1, para. B.6.1.
13
D.R. Boyd, ‘Safe Climate: A Report of the Special Rapporteur on Human Rights and the Environment’,
1 Oct. 2019, UN Doc. A/74/161, available at: https://wedocs.unep.org/20.500.11822/30158; Speech of
United Nations (UN) Secretary-General Antonio Guterres at the 66
th
Session of the Commission on the
Status of Women (CSW66), 14 Mar. 2022, available at: https://www.un.org/sg/en/content/sg/speeches/
2022-03-14/opening-remarks-the-commission-the-status-of-women.
14
C. Voigt, ‘Climate Change, the Critical Decade and the Rule of Law’(2020) 37 The Australian Yearbook
of International Law Online, pp. 50–62.
15
P. Alston, ‘Climate Change and Poverty: Report of the UN Special Rapporteur on Extreme Poverty and
Human Rights’, 17 July 2019, UN Doc. A/HRC/41/39, para. 51, available at: https://documents.un.org/
doc/undoc/gen/g19/218/66/pdf/g1921866.pdf?token=S73DGznSZV04V7AuP7&fe=true.
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and that further deprivation stimulates nationalist, xenophobic, and racist responses within
societies.
16
Fundamental freedoms will be at risk, even in established democracies.
17
Delayed and ineffective climate action in the present will inevitably force future generations
to enact immediate and drastic mitigation measures to halt the catastrophic consequences of
climate change. Doing so would equate putting a ‘full brake’on their lifestyle, which
inevitably leads to restrictions on individual freedoms.
18
These include restrictions on
personal modes of travel and on consumption of food, water, and energy.
19
Governments may also be forced to declare states of emergency. The German Federal
Constitutional Court has also warned that courts may not be able to protect individuals
against restrictions of their freedom rights as they would be deemed necessary and
proportionate to tackle the climate crises, and therefore lawful under domestic laws.
20
This all suggests that, despite their deeply ingrained short-termist horizon, democracies
must nevertheless become able to safeguard long-term environmental interests to sustain
the rule of law and democracy itself in the long run.
Their interdependence is, emphatically, mutual. Not only do environmental
problems frustrate the principles of the rule of law, but a backlash against democracy
and the rule of law also virtually always leads to a decline in the normative safeguards
that protect ecosystems and the climate. Populist social movements often undermine
taking ambitious climate mitigation action and environmental protective measures.
21
Populist leaders threaten the international rule of law by challenging multilateralism,
22
while, at the national level, they often pursue anti- or deregulatory agendas,
23
undermine environmental democracy, including rights related to environmental
information and public participation,
24
and altogether hinder expertise-based
environmental lawmaking.
25
Empirical surveys also suggest that greater degrees of
16
Ibid., para. 67.
17
See the inquiry of the German Federal Constitutional Court in Neubauer et al. v. Germany, Order of the
First Senate of 24 Mar. 2021, 1 BvR 2656/18, para. 117 (Neubauer).
18
Ibid., para. 192.
19
Third-Party Intervention submitted by the Climate Action Network in case pending before the European
Court of Human Rights (ECtHR), Duarte Agostinho and Others v. Portugal and Others, Appl. No.
39371/20, 13 Nov 2020, available at: https://climatecasechart.com/wp-content/uploads/non-us-case-
documents/2021/20210506_3937120_na-3.pdf.
20
Neubauer, n. 17 above, para. 192.
21
See, e.g., the Gilets Jaune organizing a nationwide protest against fuel taxes in France (J. Lichfield, ‘Just
Who Are the Gilets Jaunes?’,The Guardian, 9 Feb. 2019, available at: https://www.theguardian.com/
world/2019/feb/09/who-really-are-the-gilets-jaunes), or Poland’s intense logging activity in the
Białowieza Forest, which was ruled to be illegal under European Union (EU) law in Court of Justice of
the EU (CJEU), Case C-441/17, European Commission v. Poland, 17 Apr. 2018, ECLI:EU:C:2018:80.
22
T.F.M. Etty & Veerle Heyvaert, et al., ‘The End of a Decade and the Dawn of a Climate Resistance’
(2020) 9(1) Transnational Environmental Law, pp. 1–9, at 2.
23
B.J. Preston, ‘The End of Enlightened Environmental Law?’(2019) 31(3) Journal of Environmental Law,
pp. 399–411, at 399.
24
S. Bogojevic
,‘The Erosion of the Rule of Law: How Populism Threatens Environmental Protection’
(2019) 31(3) Journal of Environmental Law, pp. 389–94, at 389.
25
E. Fisher, ‘Unearthing the Relationship Between Environmental Law and Populism’(2019) 31(3) Journal
of Environmental Law, pp. 383–7, at 385–6.
Transnational Environmental Law 5
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commitment to the rule of law raises the stringency of environmental measures,
26
provided that this is not met with high degrees of corruptibility, which could offset
such effects.
27
The second layer of connections between the rule of law and the planetary crisis
concerns the genesis of the Anthropocene. As argued in depth by Viñuales, as a social
technology the law had a fundamental role in engendering the Anthropocene by
regulating and legitimizing the growth-centred economic and industrial system that
made it possible for our species to dominate the Earth system.
28
The global north
has played a pioneering role in mastering both the necessary technological innovations
and growth-based capitalism and consumerism that are jointly responsible for the
Anthropocene. The right to property, for instance, in its liberal conception as conferring
unlimited and exclusionary power on the owner, was a key driver behind developing a
growth-based economy, originating from western Europe in the 17
th
century.
29
Property
rights have enjoyed strong protection in democratic legal orders committed to the rule
of law.
Sustaining the traditional normative content and contours of requirements flowing
from the rule of law perpetuates socio-economic processes that undermine the
opportunities for future generations. In particular, the rule of law provides for legal
certainty, favouring stable and predictable laws. This requirement can also be utilized
to hinder regulatory answers to emerging risks and uncertainties surrounding
ecological and climate threats.
30
In the same vein, the rigidity of the law often works
in favour of the holders of economic power by protecting their ‘right to pollute’and
enabling them to impose externalities on communities within the bounds of often
relaxed environmental protection standards.
31
Moreover, democratic governance is inherently, and systemically, biased against
future generations.
32
Elected leaders favour immediate economic gains to satisfy
their constituencies, whereas minors, and future generations, are disenfranchised.
Presentism is thus deeply ingrained in democracy and in our conceptions of the rule
of law, which, as argued in this article, has played a vital role in driving humanity
into the Anthropocene. Rule of law guarantees, if interpreted as being applicable
26
J. Scott, ‘From Environmental Rights to Environmental Rule of Law: A Proposal for Better Environmental
Outcomes’(2016) 6(1) Michigan Journal of Environmental & Administrative Law, pp. 203–38.
27
P.G. Fredrikkson & M. Mani, ‘The Rule of Law and the Pattern of Environmental Protection’,
International Monetary Fund (IMF) Working Paper WP/02/49, Mar. 2002, available at:
https://www.imf.org/external/pubs/ft/wp/2002/wp0249.pdf.
28
J.E. Viñuales, ‘The Organisation of the Anthropocene: In Our Hands?’(2018) 1(1) International Legal
Theory and Practice, pp. 1–81, at 10.
29
N. Douglass & R.P. Thomas, The Rise of the Western World: A New Economic History (Cambridge
University Press, 1973), pp. 132–45.
30
J. Ebbesson, ‘The Rule of Law in Governance of Complex Socio-Ecological Changes’(2010) 20(3)
Global Environmental Change, pp. 414–22.
31
On the deficiencies of direct environmental regulation see S. Kingston, V. Heyvaert & A. Cavoski,
European Environmental Law (Cambridge University Press, 2017), p. 134.
32
P. Lawrence, ‘Justifying Institutions for Future Generations Based on the Mitigation of Bias and
Intergenerational Justice’, in J. Linehan & P. Lawrence (eds), Giving Future Generations a Voice:
Normative Frameworks, Institutions and Practice (Edward Elgar, 2021), pp. 22–41.
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only between contemporaries, create a system of laws that is inherently inclined to
overlook long-term interests and non-human environmental assets. The rule of law is
not only anthropocentric,
33
but its traditional understanding is also presentist and,
thus, tolerates (if not enables) the necessities of life to be looted from our descendants.
Despite all these shortcomings, the third layer of relevant connections, which is
the focus of the remainder of this article, suggests that a potential remedy for the
‘regulatory deficits’of the Anthropocene
34
may also lie in the rule of law. Several
fora have become responsive to the grave intergenerational asymmetry between the
conditions and possibilities of decision makers living in the present and those who
will have to bear the resulting impacts in the future. The last decade has seen a boom
in successful future generations lawsuits, where courts were willing to limit governmental
freedom of action in adopting policies with harmful future effects through developing
intergenerational dimensions for certain rule of law guarantees. This will be explored
in the coming section.
3. An Intergenerational Reinterpretation of the Rule of Law
Pleading with the interests of future generations appears to be a useful litigation strategy,
which creates a material impact on judicial inquiries in climate and environmental
lawsuits.
35
The plaintiffs in such cases claim normative guarantees under various
domestic and international legal doctrines to protect future generations against arbitrary
treatment. In other words, they demand the extending of core rule of law guarantees to
posterity, too.
The political ideal of the rule of law
36
knows several expressions across jurisdictions,
such as Rechtsstaat or État de droit, and has been translated into various more
precise political and legal requirements in different legal systems.
37
The term is
sometimes used to stipulate a set of principles for positive laws,
38
to designate the
separation of powers,
39
or it is invoked in a broad sense to denote the legally
regulated nature of certain aspects of state conduct,
40
the binding nature of relevant
international rules,
41
or as a sweeping reference to the system of rules governing a
33
K. Bosselmann, Im Namen der Natur: Der Weg zum ökologischen Rechtsstaat (Scherz, 1992).
34
L.J. Kotzé, Global Environmental Constitutionalism in the Anthropocene (Hart, 2016), p. 204.
35
M. Wewerinke-Singh, A. Garg & S. Agarwalla, ‘In Defence of Future Generations: A Reply to Stephen
Humphreys’(2023) 34(3) European Journal of International Law, pp. 651–67, at 651; P. Lawrence,
‘International Law Must Respond to the Reality of Future Generations: A Reply to Stephen
Humphreys’(2023) 34(3) European Journal of International Law, pp. 669–81, at 669.
36
J. Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979), pp. 211–29.
37
CoE, European Commission for Democracy through Law (Venice Commission), ‘Report on the Rule of
Law’, adopted by the Venice Commission at Its 86
th
Plenary Session, Venice (Italy), 25–26 Mar. 2011,
pp. 3–5, available at: https://rm.coe.int/1680700a61.
38
L.L. Fuller, The Morality of Law (Yale University Press, 1964).
39
S. Shetreet, The Culture of Judicial Independence: Rule of Law and World Peace (Brill, 2014).
40
F.M. Platjouw & A. Pozdnakova (eds), The Environmental Rule of Law for Oceans: Designing Legal
Solutions (Cambridge University Press, 2023), p. 8.
41
A. Buser, ‘National Climate Litigation and the International Rule of Law’(2023) 36(3) Leiden Journal of
International Law, pp. 593–615.
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given field.
42
In this article, by contrast, I rely on the definition used by rule of law
scholars proper, which locates the essence of the term in an overarching guarantee
against the arbitrary exercise of sovereign powers.
43
I will therefore look for judicially
enforceable guarantees of the rule of law –that is, safeguards against arbitrariness –in
the case law.
Future generations lawsuits deeply resonate with the core idea of (non-)arbitrariness.
In an increasing number of judgments, courts attempt to curtail the almost unrestricted
ability of governments to favour immediate economic gains by disregarding, arbitrarily,
the basic needs and interests of future generations. Arbitrariness is defined here as the
‘uncontrolled, unpredictable and unrespectful’exercise of governmental power,
44
which denotes a ‘distinctive form of unreasonable[ness]’.
45
Domestic laws in which
present-day lawmakers use their discretionary leeway to pursue short-term gains
while freely ignoring the harmful future ramifications, of which they are clearly
aware based on ample scientific warning, are fundamentally unjust, unreasonable,
and, in this sense, ‘arbitrary’
46
in respect of future generations.
Intergenerationally arbitrary decisions may come in many forms, by way of both an
action or an omission of the state. The former is illustrated in cases where courts strike
down short-termist climate and environmental policies that sacrifice long-term interests
for immediate gains.
47
With regard to the latter, when faced with state inaction to
protect environmental assets for the sake of posterity, courts often compel governments
to enact protective measures.
48
In these cases the exact formulation of judicial
guarantees of non-arbitrariness is closely tied to national laws and domestic legal
cultures and, hence, are varied in nature.
The analytic framework adopted here relies on the rule of law pillars identified by the
Council of Europe (CoE) European Commission for Democracy through Law (also
known as the Venice Commission), an international independent advisory body
dedicated specifically to promoting the rule of law and democracy.
49
The Venice
42
K.C. Sokol, ‘Forging Global Rule of Law through Climate Litigation against the United States and the
Fossil Fuel Industry’(2023) 4(1) Yearbook of International Disaster Law Online, pp. 237–62.
43
See, e.g., M. Krygier, ‘The Rule of Law: Pasts, Presents, and Two Possible Futures’(2016) 12(1) Annual
Review of Law and Social Science, pp. 199–229, at 203–5; Dicey, n. 3 above, p. 114; J. Waldron, ‘The
Rule of Law’, in E.N. Zalta & U. Nodelman (eds), The Stanford Encyclopedia of Philosophy
(Fall 2023 edn), available at: https://plato.stanford.edu/archives/fall2023/entries/rule-of-law.
44
M. Krygier ‘The Rule of Law and State Legitimacy’, in W. Sadurski, M. Sevel & K. Walton (eds),
Legitimacy: The State and Beyond (Oxford University Press, 2019), pp. 106–36.
45
T.A.O. Endicott, ‘The Coxford Lecture: Arbitrariness’(2014) 27(1) Canadian Journal of Law &
Jurisprudence, pp. 49–71, at 49.
46
See ‘arbitrary’in the Oxford English Dictionary:‘(i) to be decided by one’s liking; dependent upon will or
pleasure; at the discretion or option of anyone. (ii) derived from mere opinion or preference; not based on
the nature of things; hence, capricious, uncertain, varying. (iii) unrestrained in the exercise of will; of
uncontrolled power or authority, absolute; hence, despotic, tyrannical’.
47
See cases discussed in Section 4below.
48
See, e.g., the Amazon decision, n. 83 below, in which the government of Colombia was ordered to enact a
plan of action to prevent deforestation.
49
CoE,Venice CommissionResolution RES(2002)3Adopting theRevisedStatute ofthe EuropeanCommission
for Democracy through Law, 27 Feb. 2022, CDL (2002) 27, available at: https://www.venice.coe.int/
WebForms/documents/default.aspx?pdffile=CDL(2002)027-e. Its Art. 1(1) lists among the mandates of
the Commission the task of ‘promoting rule of law and democracy’.
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Commission has developed extensive doctrinal work regarding the normative
content and components of the rule of law. Its relevance is not confined to Europe,
as the Commission’sdefinition squares with that endorsed by the UN at the global
level,
50
and also resonates with scholarly views coming from a non-Eurocentric
perspective.
51
The Commission lists five overarching ‘thick’
52
(meaning substantive)
requirements under the rule of law, which are: (i) respect for human rights, (ii) quality
of law criteria, (iii) guarantees of non-arbitrariness, (iv) non-discrimination, and
(v) access to justice.
53
Notwithstanding certain future-looking policies,
54
these pillars have largely been
enforced under a tacit assumption of contemporaneity, in as much as they pertain to
how reigning governments should treat and regulate people living under their rule
and power at the given moment. Plaintiffs’litigation strategies in future generations
cases, however, seem to challenge such a presentist conception of the rule of law
head-on, and increasingly successfully so. A growing number of courts have been
willing to expand the temporal scope of rule of law guarantees into the future, either
by enforcing them with regard to the grievances of future rights holders or applying
such guarantees to protect current subjects against future risk or harm.
The following section will show how such an intergenerational reinterpretation of
rule of law pillars emerges in judicial practice and serves to limit the ability of states
to disregard the interests and needs of future generations in an arbitrary manner. In
these judicial decisions, rule of law obligations are interpreted in a future-oriented
way and thereby impose the following binding obligations on states:
•respect for the human rights of future individuals (currently living or yet to
be born),
•the qualityof law requirement, demanding that national laws capable of interfering
with human rights safeguards must meet certain requirements, such as clarity,
foreseeability, and specificity;
•the prohibition of arbitrary use of governmental powers in respect of the
long-term interests of posterity;
•non-discrimination vis-à-vis future generations, prohibiting direct and indirect
discrimination against children based on age or birth cohorts; and
50
UN General Assembly (UNGA) Resolution 68/116, ‘The Rule of Law at the National and International
Levels’, 16 Dec. 2013, UN Doc. A/RES/68/116, available at: https://www.refworld.org/legal/resolution/
unga/2013/en/97012 (its Preamble and para. 17 mention ‘access to justice’and the protection of ‘human
rights’). See also UNGA Resolution 60/1, ‘2005 World Summit Outcome’, 16 Sept. 2005, UN Doc.
A/RES/60/1, available at: https://www.un.org/en/development/desa/population/migration/generalassembly/
docs/globalcompact/A_RES_60_1.pdf (its para 134 mentions ‘non-discrimination’).
51
For a ‘core definition’of the rule of law emerging across national laws see S. Chesterman, ‘An
International Rule of Law?’(2008) 56(2) American Journal of Comparative Law, pp. 331–61, at 340–2.
52
Ibid.
53
CoE, Venice Commission, ‘Rule of Law Checklist’, 18 Mar. 2016, available at: https://www.venice.coe.
int/webforms/documents/?pdf=CDL-AD(2016)007-e.
54
J. Boston, Governing for the Future: Designing Democratic Institutions fora Better Tomorrow (Emerald,
2017).
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•access to justice: justiciability of legal challenges against environmental and cli-
mate policies of governments and granting standing to plaintiffs acting on behalf
of long-term interests.
The above pillars denote, in my view, the common legal architecture of many future
generations lawsuits. It may be no coincidence that litigation strategies in diverse
jurisdictions and under different legal contexts can all be traced back to specific aspects
of the rule of law. Indeed, climate governance studies have observed that ‘overarching
rules’can act as vehicles for change and alter the prevailing system of governing climate
change.
55
The rule of law concept appears to be one of those ‘overarching rules’.
Developing forward-looking, intergenerational dimensions for actionable rule of
law obligations is a significant legal innovation, which can assist in reimagining the
legal order to become more responsive to future threats and to the risk of committing
posterity to harmful path-dependencies in the present. A recent study warns, however,
that successful legal innovations need to be incremental rather than radical, because of
law’s preference and need to adhere to past commitments.
56
This means, in our context,
that the creative, ‘imaginative’,
57
one might even say ‘revolutionary’interpretation of
the scope and content of intergenerational state obligations should also be grounded
in well-established norms in order to succeed.
The concept of the rule of law could satisfy such a need for groundedness and
continuity. The fundamental role that the ideal of the rule of law plays in every
democratic legal system renders its normative components effective and legitimate
anchors for courts to develop incremental changes in the understanding of states’
obligations. The combined effects of this reinterpretation may nevertheless be
transformative for the enforceability of claims of intergenerational justice. Further,
invoking claims based on the rule of law before courts has practical value in protecting
the interests of future generations. Many successful landmark judgments attest to the
potential of targeting these basic pillars of the rule of law.
Rule of law safeguards thus serve as influential points of intervention. Through novel
interpretations, courts can inject a long-term perspective into states’traditionally
short-termist decision making. Applying actionable rule of law guarantees to protect
the interests of later generations offers a workable backdoor mechanism to challenge
states’myopic policies, which are otherwise often insulated from judicial review.
58
If domestic and international courts were to continue to acknowledge the intertemporal
55
A. Jordan et al. (eds), Governing Climate Change: Polycentricity in Action? (Cambridge University Press,
2018), p. 19.
56
N. Craik & S.L. Seck, ‘The Value of an Innovation Framework for International Law’, in N. Craik et al.
(eds), Global Environmental Change and Innovation in International Law (Cambridge University Press,
2018), pp. 317–28, at 319.
57
Wewerinke-Singh, Garg & Agarwalla, n. 35 above, p. 667.
58
E.g., by procedural rules of domestic administrative laws (see M. Eliantonio, E. Lees & T. Paloniitty,
‘Conclusions’, in M. Eliantonio, E. Lees & T Paloniitty (eds), EU Environmental Principles and
Scientific Uncertainty before National Courts (Hart, 2023), pp. 349–62, at 355–7), and the margin of
appreciation doctrine (see A. Legg, The Margin of Appreciation in International Human Rights Law
(Oxford University Press, 2012) p. 145.
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dimensions of basic rule of law guarantees, legislatures would be discouraged from
passing myopic environmental and climate measures. As aresult, invoking the interests
of future generations can also help to close the liability gap for inflicting future harm,
which is thought to be a potentially significant legal response to the Anthropocene
challenge.
59
Finally, to appraise the practical significance of demanding safeguards against
arbitrariness towards future people, we should examine the temporal limits of such
litigation strategies. While the basic theory of intergenerational equity is not limited
in its temporal scope,
60
it is important to acknowledge the practical barriers to effective
advocacy with regard to interests to be protected in the 22
nd
or 23
rd
centuries. The
temporal reach of such claims appears to be capped by constraints inherent in the
methods with which posterity’s relevant interests can be defined by courts in a robust
(and non-arbitrary) way. As I argue in Section 5, these standards lie in scientific
knowledge and soft law instruments. The horizon of our scientific and political
attention currently revolves around harm that is likely to arise from human-induced
warming by 2050 (that is, within the lifetime of the next generation),
61
or at the end
of the 21
st
century (affecting the generation that comes after).
62
Viewed from this
perspective, it may be no coincidence that plaintiffs appear to be most successful in
claiming rule of law-based protection for future generations when they frame their
complaints around the near future.
Having stated that, with the advent of technologies capable of exerting large-scale
systemic influence over the climate system, such as geoengineering, itis not inconceivable
to imagine a scenario where actions taken today produce harmful effects over
centuries from now. Theoretically speaking, nothing precludes claiming guarantees of
non-arbitrariness towards posterity even on such a timescale.
4. Limiting Arbitrariness: Litigation Strategies in Future Generations Lawsuits
The overwhelming majority of claims thus far put forward by plaintiffs in future
generations litigation seem to fall into one or more of the above-listed five main categories
corresponding to the main rule of law guarantees.
59
Viñuales, n. 28 above, p. 71.
60
See, e.g., the definition of future generations encompassing all yet unborn generations, as definedins.I.1.ofthe
Maastricht Principles on the Human Rights of Future Generations (Maastricht Principles), July 2023, available
at: https://www.rightsoffuturegenerations.org/the-principles.Seealsothe7
th
generation principle adopted by
the Confederation of the Six Nations of the Iroquois cited in UN, Report of the Secretary-General
‘Intergenerational Solidarity and the Needs of Future Generations’, 15 Aug. 2013, UN Doc. A/68/322,
para. 12, available at: https://digitallibrary.un.org/record/756820/files/A_68_322-EN.pdf.
61
This study defines a generation as lasting for around 20 years, as people gain voting rights typically
somewhere between ages of 16 and 21. This also squares with the definition used in generational theories
in sociology; see W. Strauss & H. Neil, Generations: The History of America’s Future, 1584 to 2069
(Morrow, 1991).
62
See, e.g., IPCC, n. 12 above, p. 18, para. B.3 ‘Likelihood and Risks of Unavoidable, Irreversible or Abrupt
Changes’(considering scenarios for 2050 and 2100, respectively).
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4.1. Respect for Human Rights in the Future
The traditional conception of human rights is somewhat presentist, in that safeguards
are thought to be applicable only between contemporaries.
63
Major international
human rights covenants are silent about future individuals and declare jurisdiction
over complaints if the rights holder falls within the jurisdiction of the duty bearer,
64
which arguably requires proximity in both space and time. However, expert proposals
have long advocated adopting a more future-oriented stance.
65
Most recently, the
Maastricht Principles on the Human Rights of Future Generations, released in
February 2023, set the tone for a new reading of international human rights law,
which emphasizes the absence of any ‘temporal limitations’of the guarantees set
forth in major covenants.
66
This implies that human rights safeguards should be
guaranteed for future individuals in the same manner as for those currently living.
The proliferating field of rights-based climate litigation also attests that courts do
offer protection for human rights against future harm and/or for those of future
individuals in the context of the climate and ecological crises. There are various
conceptualizations of relevant violations of human rights across different temporal
scales and with regard to different specific rights, leading to divergent lines of judicial
inquiry in such cases.
Initially, courts deduced the obligations that states owe to future generations from
select human rights, such as the constitutional right to a balanced and healthful
ecology,
67
or to a healthy environment.
68
The latter has been invoked to advocate
the protection of long-term needs and environmental assets in a range of jurisdictions,
which include Pakistan,
69
Brazil,
70
Hungary,
71
and a state court in the United States
(US).
72
The Supreme Court of Hawaii has even declared a ‘right to a life-sustaining
63
A. Gosseries, ‘On Future Generations’Future Rights’(2008) 16(4) Journal of Political Philosophy,
pp. 446–74, at 455; B. Lewis, ‘The Rights of Future Generations within the Post-Paris Climate
Regime’(2018) 7(1) Transnational Environmental Law, pp. 69–87, at 78–80; É. Gaillard, ‘Avoiding
the Tragedy of Human Rights’, in G. Bos & M. Düwell (eds), Human Rights and Sustainability
(Routledge, 2016), pp. 40–52, at 42.
64
See, e.g., Art. 2 of International Covenant on Civil and Political Rights (ICCPR), New York, NY (US),
16 Dec. 1966, in force 23 Mar. 1976, available at: https://www.ohchr.org/sites/default/files/ccpr.pdf.
65
See, e.g., the Universal Declaration of Human Rights for Future Generations (also known as the La
Laguna Declaration), adopted at an expert meeting sponsored by the United Nations Educational,
Scientific and Cultural Organization (UNESCO) at the University of La Laguna, Tenerife (Spain),
25–26 Feb. 1994, available at: https://unesdoc.unesco.org/ark:/48223/pf0000106455; and the Charter
of Future Generations’Rights (1985) referenced by Gaillard, n. 63 above, p. 47.
66
Maastricht Principles, n. 60 above, Preamble, para. II.
67
Minors Oposa v. Factoran (Secretary of the Department of Environment and Natural Resources),
Supreme Court of the Philippines, G.R. No. 101083, 30 July 1993 (Minors Oposa).
68
P.D. Vilchez & A. Savaresi, ‘The Right to a Healthy Environment and Climate Litigation: A Game
Changer?’(2023) 32 Yearbook of International Environmental Law, pp. 3–19.
69
Ashgar Leghari v. Federation of Pakistan et al., Lahore High Court (Pakistan), WP No. 25501/2015,
4 Sept. 2015.
70
PSB et al. v. Brazil (on Climate Fund), Federal Supreme Court of Brazil, Decision 1 July 2022, paras 6, 8,
15, 16.
71
Constitutional Court of Hungary, Decision No. 14/2020 (VII.6), Judgment 9 June 2020 (Forest).
72
Rikki Held v. State of Montana, Montana First Judicial District Court, Case No. CDV-2020-307,
Findings of Fact, Conclusions of Law, and Order, 14 Aug. 2023, Section VI.A. 40 (Held v. Montana).
12 Katalin Sulyok
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climate system’.
73
Other courts are focusing on more general human rights safeguards.
Dutch
74
and Belgian
75
courts, for instance, have found that the over-lenient climate
commitments of their governments violated Articles 2 (right to life) and 8 (right to
private life) of the CoE European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR).
76
Other jurisdictions define potential claimants more narrowly, and protect only the
rights of certain most vulnerable special rights holders, such as children
77
and
Indigenous communities.
78
Building on its own earlier findings in Sacchi
v. Argentina and Others,
79
the UN Committee on the Rights of the Child, in 2023,
defined several specific obligations for states in the context of climate change in its
General Comment No. 26.
80
It remains to be seen whether this document will alter
the litigation strategy of child plaintiffs, as an empirical study found that the majority
of them did not plead violations of their rights as children but focused on their
grievances to be endured later, in their adult lives.
81
Moreover, as a doctrinally distinct category from children’s rights,
82
explicit
recognition for the rights of future generations is also gaining ground in human rights
discourse. Besides the Maastricht Principles cited above, a central role was afforded to
the environmental rights of ‘unborn generations’in the inquiry of apex courts in
Colombia
83
and Pakistan.
84
Even in jurisdictions that remain wary of speaking
explicitly about the rights of future generations, future interests do shape the obligations
73
In re Hawaii Electric Light Co., Supreme Court of the State of Hawaii, SCOT-22-0000418,
13 Mar. 2023.
74
The State of the Netherlands v. Stichting Urgenda, Hoge Raad, Civil Division (Dutch Supreme Court),
Judgment, 20 Dec. 2019, No. 19/00135, ECLI:NL:HR:2019:2007 (Urgenda).
75
VZW Klimaatzaak v. Kingdom of Belgium & Others, Court of First Instance of Brussels, Civil Section,
JUG-JGC No. 167, Judgment, 17 June 2021 (Klimaatzaak).
76
Rome (Italy), 4 Nov. 1950, in force 3 Sept. 1953, available at: https://www.echr.coe.int/documents/
d/echr/Convention_ENG.
77
L. Parker et al., ‘When the Kids Put Climate Change on Trial: Youth-Focused Rights-Based Climate
Litigation around the World’(2022) 13(1) Journal of Human Rights and the Environment, pp. 64–89.
78
UN Human Rights Committee, ‘Views adopted by the Committee under Article 5 (4) of the Optional
Protocol [of the ICCPR], concerning Communication No. 3624/2019’, 21 July 2022, UN Doc. CCPR/
C/135/D/3624/ 2019 (Daniel Billy et al. v. Australia).
79
UN Committee on the Rights of the Child, ‘Decision Adopted by the Committee under the Optional
Protocol to the Convention on the Rights of the Child on a Communications Procedure, concerning
Communication No. 104/2019’, 22 Sept. 2021, UN Doc. CRC/C/88/D/104/2019 (Sacchi).
80
UN Committee on the Rights of the Child, ‘General Comment No. 26 on Children’s Rights and the
Environment, with a Special Focus on Climate Change’, 22 Aug. 2023, UN Doc. CRC/C/GC/26.,
paras 95–106 (UN CRC General Comment No. 26).
81
E. Donger, ‘Children and Youth in Strategic Climate Litigation: Advancing Rights through Legal
Argument and Legal Mobilization’(2022) 11(2) Transnational Environmental Law, pp. 263–89, at
275–6.
82
UN CRC General Comment No. 26, n. 80 above, para. 11.
83
Demanda Generaciones Futuras v. Minambiente, Supreme Court of Colombia, No.
11001-22-03-000-2018-00319-01, 4 Apr. 2018, para. 5.2 (Amazon).
84
D.G. Khan Cement Company Ltd v. Government of Punjab, Supreme Court of Pakistan, C.P.1290-L/
2019, Judgment, 15 Apr. 2021, para. 19 (D.G. Khan Cement Company).
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that courts impose on states.
85
Courts may also conceptualize harmful climate impacts as
a violation of the full range of the possible spectrum of rights held by every individual. As
famously found by the German Federal Constitutional Court, unambitious greenhouse
gas (GHG) reduction measures were unconstitutional because they were leading to a
future where ‘practically all forms of freedom’would be put in jeopardy.
86
The above conceptualizations of protected rights are closely interlinked in judicial
analysis with different configurations of the temporal dimension of relevant human
rights violations. One may distinguish four judicial approaches in this respect.
Firstly, courts can address violations of human rights that are already taking place.
This approach was chosen in the Torres Strait Islanders’case, in which the lack of
climate adaptation measures was deemed an ongoing breach of human rights.
87
The second, somewhat similar approach adopts a back-casting method focused on
competing rights in the present to tackle the conflicting interests of different generations.
The analysis of the Hungarian Constitutional Court in its Forest decision is a stark
example.
88
The Court reviewed the constitutionality of an amendment to the Forest
Act that would expand the property rights of private forest owners against the general
public’s right to a healthy environment. Noting the constitutional importance of
intergenerational equity, the Court annulled the amendment and afforded protection
for the interests of future generations against the resource extraction of the current
generation by balancing the right to environment against the right to property.
A similar back-casting logic features in Neubauer, where the partial annulment of
Germany’s federal climate law was rooted in the anticipated restrictions on constitutional
rights (so-called ‘advance interference-like effect’) that the act would have imposed after
2030.
89
This approach is responsive towards violations that will take place in the more
distant future. The Dutch Supreme Court, for instance, declared a violation of rights
even though the government’s lax mitigation commitments were leading to risks that
‘will only be able to materialize a few decades from now’.
90
Afinal option lies in protecting the individual’s rights against violations that are
inevitable in the short term. The European Court of Human Rights (ECtHR), for instance,
protects the right to life and private life against imminent future environmental risks.
91
4.2. The Quality of Law Requirement vis-à-vis Domestic Climate Laws
Domestic laws that may interfere with human rights must meet a certain quality to be
compatible with the rule of law. Such a requirement was developed in the most nuanced
85
Neubauer, n. 17 above, para. 115.
86
Ibid., para. 117.
87
Daniel Billy v. Australia, n. 78 above, para. 8.12.
88
N. 71 above. For a detailed analysis see K. Sulyok, ‘The Public Trust Doctrine, the Non-Derogation
Principle and the Protection of Future Generations: The Hungarian Constitutional Court’s Review of
the Forest Act’(2021) 9 Hungarian Yearbook of International Law and European Law, pp. 359–75.
89
Neubauer, n. 17 above, paras 115, 183. In more detail see P. Minnerop, ‘The “Advance Interference-Like
Effect”of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal
Constitutional Court’(2022) 34(1) Journal of Environmental Law, pp. 135–62.
90
Urgenda, n. 74 above, para. 5.6.2.
91
See, e.g., ECtHR, Cordella and Others v. Italy, Appl. No. 54414/13, 24 Jan. 2019, paras 163, 172.
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way by the ECtHR
92
in requiring that national laws that may interfere with basic rights
be ‘sufficiently clear and detailed’
93
and ‘foreseeable’
94
as to their effects on the persons
concerned. In the context of climate litigation, these requirements could be invoked
analogously to demand that national climate laws include detailed and clear mitigation
targets that are sufficiently ambitious to avert drastic climate impacts.
95
Although such
quality of law requirements have not been argued by applicants –though by one
intervener
96
–in the pending climate cases before the ECtHR, national courts have
set similar conditions for the quality of climate mitigation laws under domestic law.
In Neubauer, the German Constitutional Court found that the statutory emissions
pathway was unconstitutional because it did not specify long-term reduction targets,
and therefore offloaded the mitigation burden onto future generations.
97
The same
justification was adopted later by the South Korean National Human Rights
Institution in its Opinion on the climate crisis.
98
Similar specificity requirements were
invoked by the Supreme Court of Ireland, which ruled that the government had to
‘give real and sufficient details’in its National Mitigation Plan,
99
and also by the
United Kingdom (UK) High Court in litigation surrounding the UK Net Zero Strategy.
The Court in the latter case required the Secretary of State to give ‘explanations’for
the bases of the Net Zero Strategy under the statutory obligation to ‘set out’policies
for meeting the carbon budget.
100
4.3. Preventing Arbitrary Exercise of Governmental Powers to the Detriment of Future
Generations
A distinct pillar of the rule of law embodies safeguards that curtail the state’s ability to
exercise its governmental powers arbitrarily over the individual. Such guarantees
against arbitrariness in the strict sense find legal expression in various formulations
of due diligence obligations. These ensure that the interests of future generations are
not neglected or overridden even outside the scope of human rights safeguards and
92
For an overview of the ECtHR case law on the quality of law requirement see E. Küris, ‘On the Rule of
Law and the Quality of the Law: Reflections of the Constitutional-Turned-International Judge’(2019) 42
Teoría y Realidad Constitucional, pp. 131–59.
93
ECtHR, Amann v. Switzerland, Appl. No. 27798/95, 16 Feb 2000, para. 58.
94
ECtHR, Huvig v. France, Appl. No. 11105/84, 24 Apr. 1990, para. 26.
95
K. Sulyok, ‘The Quality of Law Requirement as a Climate Litigation Tool’,ELTE Law Working Papers
2022/02, available at: https://www.ajk.elte.hu/dstore/document/3168/ELTE%20LAW%20WORKING
%20PAPERS_2022_02_SulyokKatalin.pdf.
96
ECtHR, Carême v. France, Appl. No. 7189/21, 7 June 2022, Written Observations of the European
Network of National Human Rights Institutions, available at: https://ennhri.org/wp-content/uploads/
2022/12/ENNHRI-3rd-party-intervention-Careme-v.-France.pdf.
97
Neubauer, n. 17 above, para. 253.
98
Opinion of the National Human Rights Commission on the Climate Crisis and Human Rights,
1 Jan. 2023, Section C, available at: https://climatecasechart.com/non-us-case/opinion-of-the-national-
human-rights-commission-on-the-climate-crisis-and-human-rights.
99
Friends of the Irish Environment, Supreme Court of Ireland, 2017 No. 793 JR, Judgment, 31 July 2020,
paras 6.21, 6.36.
100
R (on the application of Friends of the Earth and Others) v. Secretary of State for Business, Energy and
Industrial Strategy [2022] EWHC 1841 (Admin), Judgment, 18 July 2022, para. 248.
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requirements for the quality of climate legislation. Duties of care towards the future are
rooted in a range of doctrines that are closely tied to the substantive laws of respective
jurisdictions and, hence, span a wide variety. Yet, they all aim at curtailing the freedom
of the sovereign decision maker to disregard future needs and interests in exercising its
executive powers.
Firstly, under the ECHR system, states have a well-established positive duty to take
‘all reasonable and necessary’measures to prevent interference with protected rights.
This duty of care is frequently invoked in climate change lawsuits.
101
National courts
have already reviewed the legality of domestic climate measures under the doctrine,
102
and concluded that respective governments overstepped the bounds of their discretion
under Articles 2 and 8 ECHR in that they failed to demonstrate the required level of
care in designing their GHG reduction pathways.
103
The District Court of the Hague
(The Netherlands), in its Urgenda decision, allowed conducting a cost-benefit analysis
in discharging such a duty of care. It stressed, however, that costs should be allocated
reasonably between present and future generations and that the state has a ‘serious
obligation to combat climate change if taking action in the present is predicted to be
cheaper’.
104
The Court of Appeal found that the economic and social costs of delayed
action strongly warranted taking action in the present.
105
The possible intergenerational aspects of states’due diligence obligations under
international human rights law at the global level and under customary international
law so far have been less articulated in either positive law or in international judicial
practice.
106
An early exception lies in General Comment No. 26, emphasizing that states
101
L. Maxwell, S. Mead & D. van Berkel, ‘Standards for Adjudicating the Next Generation of Urgenda-Style
Climate Cases’(2022) 13(1) Journal of Human Rights and the Environment, pp. 35–63.
102
For more details of the due diligence obligations under the ECHR in Urgenda and the ECtHR
environmental case law see P. Minnerop, ‘Integrating the “Duty of Care”under the European
Convention on Human Rights and the Science and Law of Climate Change: The Decision of The
Hague Court of Appeal in the Urgenda Case’(2019) 37(2) Journal of Energy & Natural Resources
Law, pp. 149–79, 160–7.
103
See judgments in Urgenda, n. 74 above, and Klimaatzaak, n. 75 above.
104
Stichting Urgenda v. The State of the Netherlands, District Court of the Hague, Case No. 200.178.245/01,
Judgment, 9 Oct. 2018, ECLI:NL:RBDHA:2015:7145, para. 4.76. See also J. van Zeben, ‘Establishing a
Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?’(2015) 4(2)
Transnational Environmental Law, pp. 339–57.
105
Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment),
The Hague Court of Appeal, C/09/456689/HA ZA 13-1396, 9 Oct. 2018, ECLI:NL:
GHDHA:2018:2591. para. 71. See also B. Mayer, ‘The State of the Netherlands v. Urgenda
Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018)’(2019) 8(1)
Transnational Environmental Law, pp. 167–92.
106
Intergenerational equity has been addressed by individual judges, but not in majority opinions. See, e.g.,
International Court of Justice (ICJ), Separate Opinion of Judge Weeramantry in Maritime Delimitation in
the Area between Greenland and Jan Mayen (Denmark v. Norway),ICJ Reports (1993), pp. 211–79,
para. 240; Dissenting Opinion of Judge Weeramantry attached to the Provisional Measures Order of
22 Sept. 1995 in the Request for an Examination of the Situation in Accordance with Paragraph 63 of
the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case,ICJ
Reports (1995), pp. 317–62, at 341;Separate Opinion of Judge Weeramantry in
Gabcíkovo-Nagymaros Project (Hungary v. Slovakia),ICJ Reports (1997), pp. 88–119, at 107;
Separate Opinion of Judge Cançado Trindade in Pulp Mills on the River Uruguay (Argentina
v. Uruguay),ICJ Reports (2010), pp. 135–215, paras 114–31; and Separate Opinion of Judge
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do have a ‘heightened duty of care’towards children and thus have an obligation ‘to set
and enforce environmental standards that protect children from such disproportionate
and long-term effects’.
107
A major international legal avenue for protecting
intergenerational interests lies in the due diligence obligation under customary international
law.
108
This is also well reflected in the questions put before the International Court of
Justice (ICJ) in the pending advisory opinion proceedings, which ask the Court to clarify
the legal relevance of future generations for the content of due diligence obligations
under customary and treaty obligations, and with respect to the legal consequences of
any violation thereof.
109
Putting future generations more squarely into the due
diligence calculus would be an important step with potentially far-reaching implications.
Doing so would, for instance, provide further support for states in refusing to grant new
fossil fuel projects on account of their expected future emissions.
110
Due diligence obligations may also stem from domestic law. In Neubauer, the Court
deducted that the German Basic Law imposes on the legislature a special duty of care
towards future generations.
111
Such a duty may also be rooted in civil codes
112
or in
common law doctrines requiring consideration of the interests of minors.
113
In some
jurisdictions there are currently proposals to enshrine a duty of care towards future
generations in statutory law.
114
States may also be required to exercise care to protect
essential ecosystems and natural resources (such as forests or rivers) for the future,
under various stewardship
115
or guardianship
116
obligations.
Cançado Trindade in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ
Reports (2014), pp. 348–82, paras 41–7.
107
UN CRC General Comment No. 26, n. 80 above, para. 73.
108
S. Maljean-Dubois, ‘The No-Harm Principle as the Foundation of International Climate Law’,in
B. Mayer & A. Zahar (eds), Debating Climate Law (Cambridge University Press, 2021), pp. 15–28.
109
Request for an Advisory Opinion of the International Court of Justice on the Obligations of States in
Respect of Climate Change, adopted by UNGA Resolution A/77/L.58, 29 Mar. 2023, available at:
https://www.icj-cij.org/sites/default/files/case-related/187/187-20230412-app-01-00-en.pdf.
110
J.E. Viñuales, ‘Legal Opinion: International Obligations Governing Canada’s Development of New
Liquefied Natural Gas Production Capacity in Light of the Climate Change Emergency’, David Suzuki
Foundation, 26 July 2023, paras 32, 50–9, available at: https://davidsuzuki.org/science-learning-centre-
article/legal-opinion-international-obligations-governing-canadas-development-of-new-liquefied-natural-
gas-production-capacity-in-light-of-the-climate-change-emergency.
111
Neubauer, n. 17 above, para. 229.
112
Milieudefensie et al. v. Royal Dutch Shell Plc, District Court of the Hague (The Netherlands), Judgment,
26 May 2021, ECLI:NL:RBDHA:2021:5337, English translation ECLI:NL:RBDHA:2021:5339, para.
3.2, available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2021:5339,
(Milieudefensie v. Shell); see also Klimaatzaak, n. 75 above, p. 42.
113
Sharma v. Minister for the Environment, Federal Court of Australia, FCA 560 and FCA 774 (overturned
on appeal), 27 May 2021.
114
E.g., the initiative of Senator Pocock in Australia: L. Cox, ‘Pocock Seeks to Impose Duty of Care on
Australian Government over Climate Harm’,The Guardian, 30 July 2023, available at: https://www.the-
guardian.com/australia-news/2023/jul/31/pocock-seeks-to-impose-duty-of-care-on-australian-government-
over-climate-harm.
115
Amazon, n. 83 above, p. 21.
116
Center for Social Justice Studies et al. v. Presidency of the Republic et al., Constitutional Court of
Colombia, Judgment T-622/16, 10 Nov. 2016, para. 10.2.
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In some jurisdictions (Ecuador, for example), courts use the Rights of Nature
paradigm to safeguard the interests of posterity. Even though the future generations
discourse and the Rights of Nature movement may appear, at first, to be distinct
and divergent, they share the goal of carving out certain long-term assets from
the unfettered discretion and resource exhaustion of states.
117
Ecuadorian courts, for
instance, prohibited all mining operations in the Los Cedros forest on such a legal
basis,
118
and opined that any harm that impairs nature is harm inflicteduponseveral
generations.
119
Another prominent legal avenue for restricting states’ability to favour immediate
economic gains lies in the public trust doctrine, which appears in the laws of various
jurisdictions.
120
The doctrine imposes fiduciary duties on states under common law,
statutory law or constitutional law, and it deems governments to be sovereign trustees,
which ought to preserve the trust’s assets –natural resources –for its beneficiaries,
present and future. The scope of relevant assets varies across jurisdictions,
121
as do
the exact requirements for the trustee.
The public trust doctrine has already been applied successfully in environmental
litigation to exclude policy choices that arbitrarily impair the needs and rights of future
generations.
122
Scholars have also long advocated pursuing the doctrine in climate
litigation through arguing for an atmospheric public trust,
123
but it is only recently
that courts have picked up such a line of reasoning. In March 2023, Judge Wilson
argued in his concurrent opinion, in the Hawai’i Electric Light Co. case, for a public
trust obligation to reduce the level of atmospheric carbon dioxide (CO
2
) below
350 parts per million.
124
A few months later, a state court in Montana decided
in favour of youth plaintiffs based partly on the doctrine in Held v. Montana.
125
A number of further climate public trust cases are still pending, including the Juliana
117
For examples of how Rights of Nature legislation explicitly references the interests of future generations
see, e.g., P. Lawrence, ‘Justifying Representation of Future Generations and Nature: Contradictory or
Mutually Supporting Values?’(2022) 11(3) Transnational Environmental Law, pp. 553–79.
118
Revisión de Sentencia de Acción de Protección Bosque Protector Los Cedros, Ecuadorian Constitutional
Court, Case No. 1149-19-JP/21, Nov. 2021.
119
Provincial Court of Justice of Loja (Ecuador), Judgment 03-30 of 2011; see, in more detail,
A. Álvez-Marín et al., ‘Legal Personhood of Latin American Rivers: Time to Shift Constitutional
Paradigms?’(2021) 12(2) Journal of Human Rights and the Environment, pp. 147–76, at 166–7.
120
J. Orangias, ‘Towards Global Public Trust Doctrines: An Analysis of the Transnationalisation of State
Stewardship Duties’(2021) 12(4) Transnational Legal Theory, pp. 550–86.
121
M.C. Blumm & R.D. Guthrie, ‘Internationalizing the Public Trust Doctrine: Natural Law and
Constitutional and Statutory Approaches to Fulfilling the Saxion Vision’(2011) 45 UC Davis Law
Review, pp. 741–808, at 748.
122
E.g., Forest, n. 71 above, Reasoning, para. 22.
123
M.C. Blumm & M.Ch. Wood, ‘“No Ordinary Lawsuit”: Climate Change, Due Process, and the Public
Trust Doctrine’(2017) 67(1) American University Law Review, pp. 70–82; see also the lawsuits and
campaigns launched by Our Children’s Trust, available at: https://www.ourchildrenstrust.org.
124
In re Hawaii Electric Light Co., n. 73 above, concurring opinion of Judge Wilson, p. 32.
125
N. 72 above.
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case before a US district court,
126
and those before courts in India, Pakistan, and
Hungary.
127
4.4. Age-Based Discrimination of Minors and Future Generations
In political decision making, future generations are a permanently disenfranchised
interest group
128
whose diverse interests are harmed by myopic laws and policies.
There is ample scientific evidence that children born today will experience much
harsher climate conditions in their adulthood than experienced by members of previous
generations.
129
The staggering results of a scientific study show that children aged
below 10 in 2020 will experience a fourfold increase in certain weather extremes.
130
In the light of these scientific insights, it becomes obvious that children are already
‘particularly affected’by climate change.
131
What is more, such studies make it possible
to frame disparate climate impacts as discriminatory treatment. One may conceptualize
the problem as either indirect discrimination against children on account of theirage, or
as birth-cohort discrimination, whereby certain children alive today (together with
later generations) are more adversely affected than previous cohorts.
132
126
Kelsey Cascadia Rose Juliana et al. v. United States, District Court of Oregon, Case No.
6:15-cv-01517-TC, Opinion and Order, 10 Nov. 2016, p. 39 (Juliana). For more on the case’s history
see R.S. Abate, Climate Change and the Voiceless: Protecting Future Generations, Wildlife, and
Natural Resources (Cambridge University Press, 2019), pp. 95–106.
127
According to the climate change litigation database of the Columbia University Sabin Center for Climate
Change Law (available at: https://climatecasechart.com/case-category/public-trust-claims), 29 claims
have been submitted based on the public trust doctrine in climate cases in the US. In other jurisdictions
see La Rose v. Her Majesty the Queen, pending before the Federal Court of Appeal Canada; T-1750-19;
Maria Khan et al. v. Federation of Pakistan et al., Lahore High Court, Writ Petition No. 8960/2019,
15 Feb. 2019; Mbabazi and Others v. The Attorney General and National Environmental
Management Authority, pending before the High Court of Uganda at Kampala; Civil Suit No. 283/
2012; Pandey v. India, National Green Tribunal (India), No. 187/2017, Order of 15 Jan. 2019; Ali
v. Federation of Pakistan, Lahore High Court (Pakistan), Constitutional Petition No. _/I of 2016; Ex
post Constitutional Challenge against the Hungarian Climate Law, pending before the Hungarian
Constitutional Court, Case No. II/3536/2021, available at: https://alkotmanybirosag.hu/ugyadatlap/?
id=6E82DC 86EA198AF3C12587640033C9F2.
128
Future generations are also labelled as a ‘permanent minority’; see M. Kates, ‘Justice, Democracy, and
Future Generations’(2015) 18(5) Critical Review of International Social and Political Philosophy,
pp. 508–28, at 517.
129
Note that the elderly are also disproportionately adversely affected by heatwaves compared with younger
age groups, which can also be framed as age-based discrimination. This argument is pursued in the pending
ECtHR case, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Appl. No. 53600/20,
17 Mar. 2021, Observations on the Facts, Admissibility and the Merits by the Applicants, 2 Dec.
2022, para. 61 (KlimaSeniorinnen), available at: https://climatecasechart.com/wp-content/uploads/non-
us-case-documents/2022/20221202_Application-no.-5360020_petition-1.pdf.
130
W. Thiery, S. Lange & J. Rogelj, ‘Intergenerational Inequities in Exposure to Climate Extremes’(2021)
374(6564) Science, pp. 158–60.
131
Sacchi, n. 79 above, para. 10.13.
132
A. Gosseries, ‘Environmental Degradation as Age Discrimination’(2015) 2 Revista Eletrónica de Direito
Público, pp. 25–39; R. Kaya, ‘Environmental Vulnerability, Age and the Promises of Anti-Age
Discrimination Law’(2019) 28(2) Review of European, Comparative & International Environmental
Law, pp. 162–74.
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Climate impacts are framed as a violation of non-discrimination towards children
and future generations in several cases pending before the ECtHR.
133
The problem
of birth-cohort discrimination features most acutely in the Duarte Agostinho case,
initiated by Portuguese children before the ECtHR against 32 states, on the basis of
violating the right to life and to private life in conjunction with the prohibition of
discrimination.
134
They argue that, as a result of the respondents’failure to adopt
stringent mitigation measures, the complainants will experience extreme weather
events, which affect their living conditions and health. An essentially similar pleading
was put before the Court of Justice of the European Union (CJEU) in the Armando
Carvalho case to challenge the European Union (EU) GHG reduction commitments
as far too lenient, but failed on procedural grounds because of the claimants’lack of
standing.
135
Anti-age discrimination claims are also on file with domestic courts in
various states, from Italy and Austria to South Korea and Canada.
136
Hearing a
complaint based partly on the non-discrimination clause of the Canadian Charter of
Rights and Freedoms, the Superior Court of Justice of Ontario has deemed the ‘adverse
effects of climate change on younger generations’as ‘self-evident’.
137
4.5. Access to Justice in Future Generations Litigation
Another central issue in future generations litigation concerns the rights of minors to
access justice –that is, whether disputes involving scientifically (and politically) loaded
environmental and climate policy choices are deemed justiciable by the courts, and
whether certain plaintiffs can claim intergenerational standing. Even though climate
change disrupts longstanding judicial doctrines in respect of both questions,
138
there
are signs that courts are increasingly open to tackling intergenerational cases on
the merits.
According to the Venice Commission, ‘the judicial branch appears to be best placed
to protect future generations against the decisions of present-day politicians’.
139
133
Duarte Agostinho, n. 19 above; ECtHR, Uricchio v. Italy and 32 Other States, Appl. No. 14615/21;
ECtHR, De Conto v. Italy and 32 Other States, Appl. No. 14620/21; ECtHR, Greenpeace Nordic
and Others v. Norway, Appl. No. 34068/21; ECtHR, Soubeste and Others v. Austria and 11 Other
States, Appl. No. 31925/22.
134
Duarte Agostinho, n. 19 above.
135
CJEU, Case C-565/19P, Armando Carvalho and Others v. European Parliament and Council of the
European Union, ECLI:EU:C:2021:252. See also G. Winter, ‘Armando Carvalho and
Others v. EU: Invoking Human Rights and the Paris Agreement for Better Climate Protection
Legislation‘(2020) 9(1) Transnational Environmental Law, pp. 137–64.
136
ENVironnement JEUnesse v. Procureur General du Canada, Superior Court of Québec (Canada), No.
500-06-000955-183, 11 July 2019; ASUDandOthersv. Italy, pending before the Civil Court of Rome
(Italy); Do-Hyun Kim et al. v. South Korea, Third Supplementary Brief by Petitioners, 15 Apr. 2021, available
at: https://climatecasechart.com/non-us-case/kim-yujin-et-al-v-south-korea/#:∼:text=On%20April%2015%
2C%202021%2C%20the,are%20violating%20their%20equal%20rights;Children of Austria v. Austria,
Constitutional Court of Austria, Decision to Dismiss the Claim inadmissible, 27 June 2023.
137
Mathur v. Ontario, Superior Court of Justice of Ontario (Canada), 2020 ONSC 6918, para. 187.
138
E. Fisher, E. Scotford & E. Barritt, ‘The Legally Disruptive Nature of Climate Change: Climate Change
and Legal Disruption’(2017) 80(2) The Modern Law Review, pp. 173–201, at 183–8.
139
CoE, Venice Commission, Opinion No. 997/2020 on Iceland, 9 Oct. 2020, CDL-AD(2020)020,
para. 114.
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Indeed, courts often deem such safeguards justiciable, despite pledges mostly being
couched in symbolic language. This trend is backed by an emerging scholarly
consensus
140
and practitioners’support
141
for judicial intervention aimed at protecting
long-term interests when fundamental rights are at stake. The justiciability of
conflicting rights and obligations in an intergenerational setting was expressly linked
to the rule of law in Urgenda, in which the Dutch Supreme Court stressed that the
courts’mandate to ‘offer legal protection, even against the government, is an essential
component of a democratic state under the rule of law’.
142
In European jurisdictions, the separation of powers doctrine does not usually
constitute an insurmountable obstacle to adjudicate cases challenging domestic climate
targets.
143
The approach of courts is far from uniform, though. The first instance court
in Klimaatzaak, for instance, found that it was not entitled to set a specific reduction
target for the legislature under the separation of powers principle.
144
The appellate
court disagreed and compelled the respondents to ensure that Belgium meets its target
of reducing GHG emissions by 55% by 2030 compared with emissions levels in
1990.
145
The reach of the political question argument is strongest in some common
law countries, having blocked climate lawsuits on the merits in the US and
Canada.
146
EU courts have also been hesitant in relaxing strict standing requirements
to allow climate claims to proceed.
147
Plaintiffs seeking to establish standing on behalf of generations unborn face
challenges rooted in the conceptual difficulty of claiming representation for future
individuals.
148
Transgenerational entities
149
such as communities –which include
states, tribes and cities, as well as specialized spokesperson institutions
150
–have
already succeeded in bringing intergenerational claims to courts.
151
Children and
youth plaintiffs are the other types of actor who typically have standing; they comprise
around a quarter of the claimants in rights-based climate change lawsuits.
152
Some
140
L. Burgers, ‘Should Judges Make Climate Change Law?’(2020) 9(1) Transnational Environmental Law,
pp. 55–75.
141
‘Declaration on Climate Change, Rule of Law and the Courts’, 2021 (signed by more than 140 judges,
policymakers, academics and practitioners), available at: https://www.biicl.org/climate-change-declaration?
cookiesset=1&ts=1661720448.
142
Urgenda, n. 74 above, paras 8.1–8.3.5.
143
Ibid., para. 8.2.7.
144
Klimaatzaak, Court of First Instance of Brussels, n. 75 above, pp. 82–3.
145
Klimaatzaak, Court of Appeal of Brussels, Case No. 2021/AR/1589, Judgment, 30 Nov. 2023, para. 294.
146
See, e.g., opinion of the Ninth Circuit Court of Appeal in Juliana, No. 18-36082 DC No. 6:15-cv-01517- AA,
17 Jan. 2020. Notably, Judge Aiken of the District Court of Oregon opined that the doctrine is not fatal to the
plaintiffs’case: Juliana, n. 126 above. In Canada, see the judgment of the Federal Court in La Rose v. Canada,
n. 127 above.
147
See Winter, n. 135 above.
148
D. Bertram, ‘“For You Will (Still) Be Here Tomorrow”: The Many Lives of Intergenerational Equity’
(2023) 12(1) Transnational Environmental Law, pp. 121–49, at 137–9.
149
L. Slobodian, ‘Defending the Future: Inter-generational Equity in Climate Litigation’(2020) 32
Georgetown Environmental Law Review, pp. 569–89, at 579.
150
See, e.g., (ombudsmen) institutions for future generations: Network of Institutions for Future Generations,
available at: https://futureroundtable.org/en/web/network-of-institutions-for-future-generations.
151
Carême, n. 96 above; Forest, n. 71 above; Daniel Billy et al v. Australia, n. 78 above.
152
Donger, n. 81 above, p. 264.
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courts have acknowledged the right of youth plaintiffs to claim intergenerational
standing,
153
but many jurisdictions have not.
154
At the international level, children
have been deemed to be victims of adverse climate impacts in the future, and thus
were granted standing before the UN Committee of the Rights of the Child in a
complaint regarding states’inaction on climate change.
155
The same issue is currently
being litigated before the ECtHR with regard to Portuguese children, coupled with the
question of whether the children have standing to bring a claim that demands climate
action extraterritorially, from 32 foreign states.
156
Domestic courts have mostly addressed the exterritoriality question at the standing
stage. Some acknowledge a close link between intergenerational and intragenerational
equity, as suggested by various scholars.
157
In Neubauer, the German Constitutional
Court recognized the standing rights of complainants coming from Bangladesh and
Nepal, although it stressed that the extent of Germany’s obligations to prevent future
adverse climate impacts abroad are fundamentally different from those owed to its own
citizens. It thus found the narrower extraterritorial obligations to have been met.
158
To
this extent, this decision may even be placed among the more restrictive jurisdictions.
Intergenerational claims are also raised in class action lawsuits, which are filed by
children in their own name and on behalf of future generations. A Canadian court
notably deemed the composition of a class to be arbitrary because it involved only
residents under the age of 35 in a particular province and excluded inhabitants of
other regions.
159
The majority of decisions seems to follow a more restrictive path
and bundle the interests of present-day children and future generations only at the
local scale –if they all live in the same region or in the same state.
160
Such an attitude
expands the temporal horizon of state obligations at the price of confining their
geographical scope. This approach fails to consider intragenerational (extraterritorial)
grievances –past, present, and future –in concretizing intergenerational obligations.
Such decisions could be criticized for being ‘parochial’
161
and even ‘hypocritical’.
162
Indeed, courts of the global north appear to be weary of holding historically
high-emitting states accountable for their historical emissions, and they do not compel
governments to adopt stricter emissions reduction obligations on account of the
widespread damage that such emissions have been (and will be) causing for the
153
I. Gonzalez-Ricoy & F. Rey, ‘Enfranchising the Future: Climate Justice and the Representation of Future
Generations’(2019) 10(5) WIREs Climate Change, article e598, p. 4.
154
Parker et al., n. 77 above.
155
Sacchi, n. 79 above (although the complaint was found inadmissible on the ground of non-exhaustion of
local remedies).
156
Duarte Agostinho, n. 19 above.
157
E.B. Weiss, ‘Intergenerational Equity’,inMax Planck Encyclopedia of Public International Law (Oxford
University Press, 2013), para. 11; S. Caney, ‘Justice and Future Generations’(2018) 21 Annual Review of
Political Science, pp. 475–93.
158
Neubauer, n. 17 above, paras 101, 173–81.
159
ENVironnement JEUnesse v. Attorney General of Canada, Court of Appeal, No. 500-09-028523-199,
Judgment, 13 Dec. 2021.
160
Milieudefensie v. Shell, n. 112 above, para. 4.2.4; Minors Oposa, n. 67 above.
161
Bertram, n. 148 above, pp. 146–7.
162
Wewerinke-Singh, Garg & Agarwalla, n. 35 above, p. 652.
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historically low-emitting countries from the global south. In a warming world, future
generations of different parts of the world will face very diverse climate and
environmental futures. We are yet to see whether domestic and international courts
will be willing to reflect on these differences and integrate intragenerational equity
into their reasoning in future generations lawsuits.
5. Judicial Standards for Detecting Arbitrariness: Science and Soft Law
In operationalizing the legal doctrines surveyed above, courts need some criteria to
anchor their analysis concerning the future interests they deem worthy of protection
through judicial intervention. Most importantly, they must ensure that their reasoning
is not seen as capricious or biased. The legal doctrines I identified above are vaguely
defined, open-textured norms, the application of which to particular facts leaves
considerable room for judicial discretion. For instance, the concept of due diligence
under international human rights law does not entail specific obligations for states,
163
nor do the public trust doctrine or the right to a healthy environment. Courts therefore
need to find substantive benchmarks to appraise the compatibility of sovereign conduct
with normative requirements. In doing so, they must devise legal (or technical)
standards to measure against the ‘arbitrariness’of laws and policies or, in other words,
their capacity to encroach upon the interests of future generations. Two common
argumentative solutions emerge. Courts either refer to scientific knowledge or to goals
enshrined in soft law documents to review the merits of short-termist legislation.
Science is often seen as a supplier of objective knowledge in the courtroom,
164
enabling adjudicators to make robust assessments of the magnitude and imminence
of future risks. Taking into account robust scientific knowledge is a core requisite for
making ‘reasonable’
165
decisions. In this vein, to limit the sovereign’s regulatory
freedom, domestic courts often rely primarily on scientific reports. In Neubauer, the
German Federal Constitutional Court pointed to the results of climate science in finding
that the lawmaker exceeded the bounds of its discretion. It stressed that ‘if reliable data
suggest that the constitutionally relevant temperature limit might be exceeded, such
data must be taken into account’.
166
References to climate science seem to be an almost obligatory accessory of climate
litigation judgments. The recommendations contained in the reports of the
Intergovernmental Panel on Climate Change have sometimes directly laid the
foundation for the reduction targets mandated by courts.
167
The findings of expert
organizations are also instrumental in defining the breach of stewardship obligations.
163
M. Malaihollo, ‘Due Diligence in International Environmental Law and International Human Rights
Law: A Comparative Legal Study of the Nationally Determined Contributions under the Paris
Agreement and Positive Obligations under the European Convention on Human Rights’(2021) 68(1)
Netherlands International Law Review, pp. 121–55, at 148.
164
K. Sulyok, Science and Judicial Reasoning: The Legitimacy of International Environmental Adjudication
(Cambridge University Press, 2021).
165
Duarte Agostinho, n. 19 above, Observations of Applicants, 5 Dec. 2022, paras 94–7.
166
Neubauer, n. 17 above, para. 214.
167
Urgenda, n. 74 above, para. 5.8. On the role that IPCC science played in the decision see
M. Wewerinke-Singh & A. McCoach, ‘The State of the Netherlands v. Urgenda Foundation: Distilling
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In the Amazon decision, the Supreme Court of Colombia referred to scientific reports to
support its conclusion that governmental measures were ineffective in combating
environmental problems in the region.
168
Similarly, the first instance court in
Klimaatzaak referred to the opinion of the Federal Council for Sustainable
Development to justify finding a lack of good climate governance, which was one of
the grounds for establishing a breach of the government’s civil law duty of care.
169
Another cross-jurisdictional pattern shows that courts often use soft law goals and
prior policy commitments of the state as a benchmark for assessing whether
governments arbitrarily harm the interests of future generations. Such an inquiry was
most explicit in the Hungarian Forest decision, in which the Constitutional Court
partially quashed an amendment to the Forest Act for contravening principles set out
in the long-term National Forestry Strategy. The Strategy had been adopted by the
legislature as a non-binding sectoral policy instrument setting out a long-term vision
and principles for national forest management. A few years later, the amendment
narrowed the powers of authorities to mandate temporal and spatial restrictions on
logging for nature conservation purposes. The Court opined that this ran counter to
sustainable forest management, as set out in the Strategy, and therefore repealed the
amendment.
170
A structurally similar argument was made in Milieudefensie v. Royal Dutch Shell by
the first instance court.
171
While interpreting the normative content of the unwritten
standard of care in civil law, the District Court turned to the UN Guiding Principles
on Business and Human Rights (UNGP),
172
which is a soft law compilation of
principles addressed to states and companies. Although the UNGP do not impose
binding obligations on corporations, the court nevertheless argued that ‘the responsibility
of business enterprises to respect human rights, as formulated in the UNGP, is a global
standard of expected conduct for all business enterprises’.
173
On these premises, the
District Court ordered Shell to increase its mitigation efforts in line with its obligations
under the UNGP.
These examples also suggest that the dividing line between hard law and soft law
obligations often becomes blurred in future generations litigation. Courts appear to
Best Practice and Lessons Learnt for Future Rights-Based Climate Litigation’(2021) 30(2) Review of
European, Comparative & International Environmental Law, pp. 275–83.
168
Amazon, n. 83 above, para. 12.
169
Klimaatzaak, n. 75 above, p. 76.
170
Forest, n. 71 above, paras 31–2.
171
Milieudefensie v. Shell, n. 112 above. For analysis of the judgment see B. Mayer, ‘The Duty of Care of
Fossil-Fuel Producers for Climate Change Mitigation: Milieudefensie v. Royal Dutch Shell, District
Court of The Hague (The Netherlands)’(2022) 11(2) Transnational Environmental Law, pp. 407–18;
L. Burgers, ‘Response: An Apology Leading to Dystopia: Or, Why Fuelling Climate Change Is
Tortious’(2022) 11(2) Transnational Environmental Law, pp. 419–31; B. Mayer, ‘Judicial
Interpretation of Tort Law in Milieudefensie v. Shell: A Rejoinder’(2022) 11(2) Transnational
Environmental Law, pp. 433–6.
172
‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect
and Remedy”Framework’, adopted by the UN Human Rights Councilin Resolution 17/4, 16 June 2011,
UN Doc. HR/PUB/11/4, available at: https://digitallibrary.un.org/record/720245/files/GuidingPrinciples
BusinessHR_EN.pdf.
173
Milieudefensie v. Shell, n. 112 above, para. 4.4.13.
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turn non-binding standards into judicially enforceable benchmarks to carve out certain
policy choices from decision makers’lawful room for manoeuvre. The soft law standards
reflect a political consensus, negotiated irrespective of the particular lawsuit, on the
measures that the courts deem necessary to protect posterity’s long-term interests.
Similarly, the scientific opinion of competent institutions with recognized prestige and
expertise lends persuasive force to judicial findings that limit sovereign choices.
6. Conclusions on Transforming the Rule of Law: Trends and Implications
This snapshot of the frontlines of future generations litigation has shown how legal
claims keep challenging the traditional content of states’rule of law obligations across
national, and also some international, jurisdictions. Courts are increasingly willing to
interpret and apply traditional rule of law guarantees in a ‘revolutionary’way: by
extending their temporal scope to include both the concerns of future individuals as
well as the future needs and rights of present-day subjects. Firstly, many jurisdictions
now afford human rights safeguards against future environmental and climate hazards;
and some even recognize unborn generations as rights holders. Secondly, national
courts have also set various quality of law requirements for national climate laws to
establish ambitious mitigation commitments. Thirdly, several jurisdictions have put
constraints on the arbitrary exercise of governmental powers that threaten the viability
of long-term natural assets, either by declaring such laws invalid or by compelling
present decision makers to establish protective measures. Fourthly, while most lawsuits
involving claims of age-based discrimination against minors are still pending, some
courts have already shown sympathy for the discriminatory impact of adverse climate
change on future generations. Finally, access to justice is increasingly granted in
intergenerational lawsuits through expanding rules on justiciability and standing.
Courts concretize the meaning of legal standards through heterogeneous strategies,
which are closely tailored to the specificities of national laws. Different modalities of
rights-based approaches (including creating new rights holders), duty-centred
reasoning, and concepts borrowed from Indigenous legal cultures
174
all have their
rightful place in the judicial ‘toolbox’, depending on the interpretative canons of the
applicable legal culture. Such heterogeneity appears to be inevitable. The success of
future generations lawsuits depends, at least in part, on whether plaintiffs manage to
find the appropriate doctrine to expand the contours of state obligations that is most
in line with domestic legal traditions.
In sum, courts appear to delineate the interests of future generations worthy of
judicial protection through one of five legal avenues, all of which flow from the rule of
law. Accordingly, these rule of law pillars mark the application of the intergenerational
equity principle in judicial practice. In many scenarios it would be difficult for courts to
select long-term interests that ought to be protected through substantive standards,
given that such interests can be vague and subjective, and thus contestable. In similar
delicate situations in the past, courts have turned to procedural requirements in their
174
Wewerinke-Singh, Garg & Agarwalla, n. 35 above.
Transnational Environmental Law 25
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environmental case law.
175
For the same reason, using the safeguards stemming from the
rule of law are perhaps the most viable judicial tool to operationalize intergenerational
equity.
On a higher level of abstraction, plaintiffs demand (with increasing success) that
states respond to scientifically substantiated environmental risks and adopt ‘good
laws’with the purpose of diffusing ‘happiness and powers universally and equally’
176
–in our context, equally across generations. To that extent, successful future
generations lawsuits insist on an ambitious justice concept as expressed within various
theories of intergenerational justice.
177
At the minimum, unfolding judicial practice
pushes present decision makers ‘to make wise choices for future generations’.
178
In the ‘laboratory’of future generations litigation, courts translate the morally rooted
requirement of passing good laws and making wise policies into binding obligations on
states not to treat future individuals in an arbitrary way. Decisions and policy choices
made in the present that are ‘capricious’and unjustifiable in the light of scientific
knowledge and soft law goals are repeatedly struck down by courts. States are no longer
free to prioritize ‘at will’certain short-term gains over long-term risks by wielding
‘uncontrolled power’(to use colloquial synonyms of ‘arbitrary’)over‘colonized’
179
future generations. Even though states do retain discretion in balancing competing
interests, their actions are becoming increasingly scrutinized to ‘arriv[e] at a reasonable
balance’
180
between present-day interests and longer-term impacts.
Judicially prohibiting arbitrary disregard for the interests of future generations may
not be as revolutionary an idea as it may sound at first. It is in line with the changing
contours of sovereignty, where states need to take into account ‘other-regarding
considerations’in designing their policies not only towards ‘foreign stakeholders’,
181
but arguably also towards future stakeholders. Positing binding guarantees against
arbitrariness towards future generations also resonates well with the idea that state
sovereignty has inherent limits under international law and prohibits unreasonable
exercise of sovereignty to the detriment of future people.
182
175
J. Brunnée, ‘International Environmental Law and Community Interests: Procedural Aspects’,in
E. Benvenisti & G. Nolte (eds), Community Interests Across International Law (Oxford University
Press, 2018), pp. 151–75, at 155.
176
For such a definition of ‘good laws’see the letter of Lord Dickinson to the Inhabitants of the Province of
Quebec, written in 1774: ‘In every human society, …there is an effort, continually tending to confer on
one part the height of power and happiness, and to reduce the other to the extreme of weakness and
misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally’
(emphasis added). Cited by Judge Xenia Turkovic in her speech at the Re:Constitution Fellows Meeting held
in Berlin (Germany), 27 Oct. 2021.
177
On intergenerational justice see Caney, n. 157 above.
178
Waratah Coal Pty Ltd v. Youth Verdict Ltd and Others (No 6), Land Court of Queensland (Australia)
[2022] QLC 21, para. 1603.
179
D.G. Khan Cement Company, n. 84 above.
180
UN CRC General Comment No. 26, n. 80 above, para. 73.
181
E. Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign
Stakeholders’(2013) 107(2) American Journal of International Law, pp. 295–333, at 300 (emphasis
added).
182
C. Foster, ‘Due Regard for Future Generations? The No Harm Rule and Sovereignty in the Advisory
Opinions on Climate Change’(2024) 13(3) Transnational Environmental Law (forthcoming)).
26 Katalin Sulyok
https://doi.org/10.1017/S2047102524000116 Published online by Cambridge University Press
The implications of future generations lawsuits are of constitutional proportions;
they call for transforming our conceptions of the meaning of the rule of law
183
and,
through that, they might recalibrate some of the basic tenets of the current system of
environmental and climate governance. More specifically, a transformed understanding
of basic rule of law obligations, if spread across jurisdictions and maintained to a sufficient
degree to solidify,
184
could assist in holding states liable for inflicting harm over longer
timescales. By fostering a new, future-focused understanding of the rule of law, courts
could level the playing field for later generations and emancipate them from the ‘systematic
bias’
185
of current short-termist decision making.
Acknowledgements: The author is grateful to Ole W. Pedersen, Caroline Foster and the other participants
of the ELTE-Aarhus Joint Workshop on Future Generations Litigation held on 8–9 June 2023 at ELTE
University in Budapest (Hungary) for their valuable reflections on earlier versions of this article. The author
also wishes to thank the anonymous TEL reviewers for their insightful and constructive comments provided
throughout the peer review process. All remaining errors are those of the author.
Funding statement: This article was supported by the János Bolyai Research Scholarship of the Hungarian
Academy of Sciences and partly benefitted from the Re:Constitution postdoctoral fellowship.
Competing interests: The author declares none.
183
D.G. Khan Cement Company, n. 84 above, para. 19.
184
Craik & Seck, n. 56 above, p. 318.
185
Lawrence, n. 32 above, p. 22.
Cite this article: K. Sulyok, ‘Transforming the Rule of Law in Environmental and Climate Litigation:
Prohibiting the Arbitrary Treatment of Future Generations’(2024) Transnational Environmental Law,
pp. 1–27. https://doi.org/10.1017/S2047102524000116
Transnational Environmental Law 27
https://doi.org/10.1017/S2047102524000116 Published online by Cambridge University Press
