Future Generations and International Law 9781306223256, 1306223253, 9781315870137, 9781844079919, 9781853835032

Table of contents :
Content: pt. 1. Philosophical reflections --
pt. 2. State responsibilities towards future generations --
pt. 3. Future generations as a subject of international law --
pt. 4. Practical legal consequences of future generation provisions in existing treaties --
pt. 5. Relevance of Rio declaration, Agenda 21 and the United Nations Commission on Sustainable Development to a guardian --
pt. 6. Draft instrument.

Citation preview

I N T ERN A TIO N AL E N V I R O N M E N T A L G O V E R N A N C E

Future Generations and International Law

Edited by Emmanuel Agius and Salvino Busuttil with Tae-Chang Kim and Katsuhiko Yazaki

In t e r n a t io n a l E n v i r o n m e n t a l G o v e r n a n c e Volume 7

Future Generations and International Law

Full list o f titles in the set In t e r n a t io n a l E n v ir o n m

Volume Volume Volume Volume Volume Volume Volume Volume Volume Volume Volume Volume Volume Volume

1: 2: 3: 4: 5: 6: 7: 8: 9: 10: 11: 12: 13: 14:

Volume 15: Volume 16: Volume 17: Volume 18:

ental

G

overnance

Acid Rain in Europe Getting to C rip s with Green Plans The G lobal Politics of Pesticides Acid Earth Earth Sum m it II Fair Weather Future Generations and International Law Greening International Institutions A G uid e to EC Environmental Law M a n a gin g the Planet Protecting the Atm osphere From Earth Sum m it to Local A genda 21 Futile Progress Yearbook of International Cooperation on and Developm ent 1 9 9 8 -9 9 Yearbook of International Cooperation on and Developm ent 1 9 9 9 -2 0 0 0 Yearbook of International Cooperation on and Developm ent 2 0 0 1 -0 2 Yearbook of International Cooperation on and Developm ent 2 0 0 2 -0 3 Yearbook of International Cooperation on and Developm ent 2 0 0 3 -0 4

Environment Environment Environment Environment Environment

Future Generations and International Law Edited by Emmanuel Agius and Salvino Busuttil with Tae-Chang Kim and Katsuhiko Yazaki

13 Routledge Taylor & Francis Croup LO N DO N A N D NEW YORK

First published 1998 by Earthscan Published 2013 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon 0 X 1 4 4RN 711 Third Avenue, New York, NY, 10017, USA Routledge is an imprint of the Taylor & Francis Croup, an in forma business C o p y rig h t© Emmanuel Agius and Salvino Busuttil, 1998

All rights reserved Earthscan publishes in association with the International Environment and Development

Institute for

A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data has been applied for

Publisher's note The publisher has made every effort to ensure the quality of this reprint, but points out that some imperfections in the original copies may be apparent. At Earthscan we strive to minimize our environmental impacts and carbon footprint through reducing waste, recycling and offsetting our C O , emissions, including those created through publication of this book.

ISBN 13: 978-1-844-07991-9 (hbk) ISBN 13: 978-1-853-83503-2 (pbk)

FUTURE GENERATIONS AND INTERNATIONAL LAW

The Law and Sustainable Development Series Edited by Philippe Sands, Foundation for International Environmental Law and Development (FIELD), School of Oriental and African Studies (SOAS), London University

‘Global environmental problems demand global, cooperative solutions. That means rethinking international law. Building on theirformidable international experience, Philippe Sands and his colleagues have launched us into that rethink. A legal parallel to the Blueprint series: welcome, timely and provocative.' David Pearce

UNCED called for the 'further development of international law in the field of sustainable development'. A new area of law is now evolving to take into account issues of environment, development and social justice. The books in this series aim to address and define the main legal issues involved and to contribute to the progressive development of law. Other titles, all available from Earthscan, include

Quotas in International Environmental Agreements Amanda Wolf

Greening International Law Edited by Philippe Sands

Improving Compliance with International Environmental Law Edited by Jacob Werksman

Interpreting the Precautionary Principle Edited by Tim O'Riordan and James Cameron

Property Rights in the Defence o f Nature Elizabeth Brubaker

Greening International Institutions Edited by Jacob Werksman

Future Generations and International Law Proceedings of the International Experts' Meeting held by the Future Generations Programme at the Foundation for International Studies, University of Malta, in collaboration with the Foundation for International Environmental Law and Development (FIELD), University of London; the Future Generations Alliance Foundation, Japan; and the Ministry for the Environment, Malta.

Edited by Emmanuel Agius and Salvino Busuttil in collaboration with Tae-Chang Kim and Katsuhiko Yazaki

lH3BE§a0[jS Earthscan Publications Ltd, London

First published in the UK in 1998 by Earthscan Publications Ltd Copyright © Emmanuel Agius and Salvino Busuttil, 1998 All rights reserved A catalogue record for this book is available from the British Library ISBN: 185383 503 X Typesetting and page design by JS Typesetting, Wellingborough, Northants. Cover by Declan Buckley Design

For a full list of publications, please contact: Earthscan Publications Ltd 120 Pentonville Road London N1 9JN Tel: 0171 278 0433 Fax: 0171 278 1142 e-mail: [email protected] http://www.earthscan.co.uk

Earthscan is an editorially independent subsidiary of Kogan Page Ltd and publishes in association with WWF-UK and the International Institute for Environment and Development.

CONTENTS

List of Acronyms and Abbreviations List of Contributors Preface Salvino Busuttil and Katsuhiko Yazaki Introduction Emmanuel Agius and Tae-Chang Kim

vii ix xi xiii

Part 1: Philosophical Reflections 1.

Obligations of Justice Towards Future Generations: A Revolution in Social and Legal Thought Emmanuel Agius

2.

Beyond Parfit's Paradox Per Ariansen

3

13

Part 2: State R esponsibilities Towards Future Generations 3.

4.

The Responsibility of the State Towards Future Generations Rachid Driss

21

A Guardian as Monitor of Sustainability of Marine Living Resources Sidney Holt

27

Part 3: Future Generations as a Subject of International Law 5.

A Commentary on the Status of Future Generations as a Subject of International Law Ajai Malhotra

39

6.

Speaking Without a Voice Boldizsar Nagy

51

7.

Safeguarding Future Generations Christopher D. Stone

65

Part 4: Practical Legal Consequences of Future Generation Provisions in Existing Treaties 8.

Protecting Future Generations: Precedents and Practicalities Philippe Sands

83

Contents 9.

Precautionary Principle and Future Generations James Cameron, Will Wade-Gery and Juli Abouchar

93

Part 5: Relevance of Rio Declaration, Agenda 21 and the United Nations Commission on Sustainable Development to a Guardian 10.

11.

12.

13.

The Relevance of UNCED to a Guardian for Future Generations Kevin Aquilina

117

Guarding Intergenerational Rights Over Natural Resources Simone Borg

127

The United Nations as a Guardian for Future Generations Geping Rao

143

Future Generations: Searching for a System of Protection R St J Macdonald

149

Part 6: Draft Instrument 14.

A Draft Instrument Concerning the Role of a Guardian Maxwell Bruce

163

Appendix: International Legal Materials Referring to Future Generations

167

Notes and References

177

Index

199

LIST OF ACRONYMS AND ABBREVIATIONS

Alliance of Small Island States Best Available Technology Best Available Technology Not Entailing Excessive Costs Convention on International Trade in Endangered Species of Fauna and Flora Conference of the Parties COP DENR Department of Environment and Natural Resources (Philippines) Economic Exclusion Zone EEZ EIA Environmental Impact Assessment FAO Food and Agriculture Organization FIELD Foundation of International Environmental Law and Development GESAMP Group of Experts on the Scientific Aspects of Marine Pollution Genetically Modified Organism GMO International Court of Justice ICJ International Committee of the Red Cross ICRC Intergovernmental Organization IGO International Labour Organization ILO Intergovernmental Negotiating Committee INC International Conference on the Protection of the North Sea INCS International Observer Scheme IOS ISBA International Sea Bed Authority International Whaling Commission IWC North American Free Trade Association NAFTA NAMMCO North Atlantic Marine Mammals Commission Non-Governmental Organization NGO New International Economic Order NIEO Organization for Economic Cooperation and Development OECD Office of Technology Assessment OTA RMP Regional Management Procedure Spatial Strangers SS Temporal Strangers TS UN United Nations UNCED United Nations Conference on Environment and Development AOSIS BAT BATNEEC CITES

List o f Acronyms UNCHE UNCLS UNCSD UNDP UNEP UNESCO UNGA UNHCHR UNHCR UNICEF WCED WHO WWF

UnitedNations Conference on the Human Environment UnitedNations Convention on the Law of the Sea United Nations Commission on Sustainable Development United Nations Development Programme United Nations Environment Programme United Nations Educational Scientific and Cultural Organization United Nations General Assembly United Nations High Commissioner for Human Rights United Nations High Commissioner for Refugees United Nations Children's Fund World Commission on Environment and Development World Health Organization World Wide Fund for Nature

LIST OF CONTRIBUTORS

Ju li Abouchar is a barrister and solicitor and a member of the Ontario and New Brunswick bars in Canada. She is currently working on various legal projects at FIELD, University of London. Emmanuel Agius is Senior Lecturer in Moral Theology and Philosophical Ethics at the University of Malta. He is a member of the International Association of Bioethics, member of Unesco's International Bioethics Committee and Coordinator of the Future Generations Programme at the Foundation for International Studies, University of Malta. Kevin Aquilina is Registrar at the Law Courts in Malta and holds a postgraduate degree in International Maritime Law. Per Ariansen is Lecturer in the Department of Philosophy at the University of Oslo, Norway. His introductory book to environmental philosophy, entitled Miljofilosofi, is widely used as a textbook. Simone Borg is Lecturer in Environmental Law in the Faculty of Law, University of Malta and Legal Advisor to the Maltese Ministry for the Environment. Maxwell Bruce is a Canadian barrister and solicitor, Senior Associate of FIELD, London University, and Fellow of the Foundation for International Studies, University of Malta. Salvino Busuttil is Director-General of the Foundation for International Studies, University of Malta, President of the Euro-Mediterranean Centre for Marine Contamination Hazards and President of the Comite pour les Etudes Mediterraneennes. James Cameron is a barrister and Director of FIELD. He is also Visiting Lecturer at the School of Oriental and African Studies, London University, and a Life Member of Clare Hall, Cambridge University.

List o f Contributors Rachid D riss is a Tunisian journalist and diplomat. In 1981 he founded the Association des Etudes Internationales of which he is also President. Will Wade-Gery is a J.D. Candidate at Yale University and former Consultant to the Environment Department of the World Bank. Sidney Holt is a marine biologist specializing in fisheries research and management. He is also Scientific Adviser of the International Fund for Animal Welfare. Tae-Chang Kim is President of the Institute for Integrated Study of Future Generations, Kyoto, Japan, Visiting Research Fellow at the Center for International Affairs, Osaka International University, Japan and Research Associate at the Center for Transformative Learning, Ontario Institute for Studies in Education, University of Toronto, Canada. He is also a member of the Executive Council of the World Futures Studies Federation. R St J Macdonald is Professor of International Law at the University of Toronto and Judge at the European Court of Human Rights in Strasbourg. A jai M alhotra is Counsellor at the Embassy of India, Moscow, and has been involved in almost all the major multilateral negotiations and conferences leading up to and including UNCED, held between 1989 and 1993. Boldizsar Nagy is Associate Professor of Public International Law at Eotvos Lorand University in Budapest, Hungary and a member of the editorial board of the International Journal of Refugees. Geping Rao is Associate Professor at the Faculty of Law and Executive Director of the International Law Institute, Peking University. Philippe Sands is a barrister and Legal Director of FIELD. He is also Visiting Lecturer at the School of Oriental and African Studies, London University, and Visiting Professor at New York University Law School. He was Legal Advisor on the St. Lucia delegation to UNCED and the Intergovernmental Negotiating Committee on a Framework Convention on Climate Change. Christopher D. Stone is Roy P. Crocker Professor of Law at the University of Southern California where he teaches international environmental law and other courses in moral philosophy. Among his well-known environmental books are Should Trees Have Standing? Toward Legal Rights fo r Natural Objects, and The Gnat is Older Than Man: Global Environment and Human Agenda. Katsuhiko Yazaki is Chairman of the Future Generations Alliance Foundation, New York (which he founded in 1992) Secretary-General of the Kyoto Forum which he established in 1989, and Chairman of Felissimo Corporation. He also founded the Institute for the Integrated Study of Future Generations in Kyoto, Japan in 1992.

x

PREFACE Salvino Busuttil and Katsuhiko Yazaki

Facing the challenges of the approaching new millenium, we have to devise ways of arousing and sustaining, among our contemporaries, their responsible interest in and towards future generations. It is not an easy task, since the debate on future generations is often embroiled in logistical and epistemological controversy, especially when the brunt of the discussion focuses on the rights of those of our species yet unborn. The questions posed are intriguing. Do people now living have obligations towards those who are not yet living? Do future persons have identifiable interests? Do they have rights, and, if so, on what grounds? Basically, why should we care? Such queries are neither frivolous nor scholastic. Rather, they are at the heart of the evaluation of those profound moral issues posed by the projection of sustainable development into the future of humankind. In exploring these crucial questions in order to offer viable proposals, the Future Generations Programme at the Foundation for International Studies in Malta has, since its inception in 1987, supported the concept of a "guardian" to secure and monitor the rights of unborn generations, and has incorporated this innovative and inspiring concept in the World Declaration on Our Responsibilities Towards Future Generations which was unanimously approved at the International Conference on Future Generations held in Malta by the Foundation in 1992. Moreover, in September 1994 a group of international lawyers was convened in Malta by the Future Generations Programme, together with the Future Generations Alliance Foundation of Japan, the Foundation for International Environmental Law and Development (FIELD) at the University of London, and Malta's Ministry for the Environment, to explore conceptual and legal frameworks for the appointment of a guardian to represent the interests of future generations in regional and international fora. At the end of that meeting, a general consensus was reached on three cardinal points. Firstly, that the interests of future generations must be secured and protected. Secondly, that we have responsibilities towards future generations. Thirdly, that the best way to protect those interests and to discharge those responsibilities is to provide for the adequate representation now of future

Preface generations. Indeed, the idea of a guardian to protect the interests of future generations was wholly endorsed by the participants at the conference. What provoked some of the more interesting considerations at the conference was not so much the idea of a guardian per se, but the nature it could and should assume. The conference contributions, here offered in book form, seek to shed light, from different perspectives, on this innovative concept. Some participants agreed that the most effective way to initiate the process towards implementation is through promoting the idea at the United Nations level. A step in this direction that is currently being examined is Malta's proposal to change the role of the United Nations Trusteeship Council from that of trustee of dependent territories (now practically extinguished) to one which acts as a guardian and trustee of the resources of the global commons, in the interest of both present and future generations. It is significant and encouraging to note that a proposal on the same lines has been included in the 1995 report of The Commission on Global Governance, entitled Our Global Neighbourhood, in its chapter on "Reforming the United Nations". Other participants noted that this modus procedendi is not easy. There was, however, general agreement that one could act right away through non-governmental organisations which have a pivotal role to play in the arena of governance by raising a critical voice on behalf of future generations and in mobilizing communities to involve themselves in formulating policies that respect the well-being of our future neighbours. This consciousness-raising on behalf of future generations should be an obligation commensurate with the indispensable work that NGOs seek to do in all spheres. In order to advance this reflection on safeguarding the interests and needs of future generations, UNESCO, in cooperation with the Cousteau Society, sponsored a meeting of experts organized by the Tricontinental Institute for Parliamentary Democracy and Human Rights at the University of La Laguna (Tenerife, Canary Islands) in 1994. Subsequently, the La Laguna Declaration was substantially reviewed taking into consideration the comments and suggestions made by the Executive Board and other intensive consultations with specialists and NGOs. The resulting new version of the declaration was entitled Preliminary Draft o f a Declaration on the Responsibilities o f the Present Generation Towards Future Generations. It quotes conventions and declarations which already speak about such responsibilities and emphasizes that full recognition of these responsibilities, in particular through education, is an important part of UNESCO's fundamental ethical mission. In July 1996, UNESCO welcomed the initiative by the International Centre of Sociological, Penal and Penitentiary Studies in Messina (Italy) to hold an experts' meeting in Taormina (Italy) in order to improve further the preliminary draft declaration. The gathering provided an in-depth examination and critique of the terminology and concepts adopted by the preliminary draft declaration and raised procedural questions linked with the eventual expedition of the declaration. In order to bring the reflection forward and conclude the work on the Charter for Future Generations, a proposal was made to convene an official UNESCO meeting, this time in Malta, in September 1997. Our hope is that this collection of papers will disseminate new insights and proposals on our responsibilities towards future generations and stimulate people everywhere to build and preserve a global neighbourhood of democracy, peace and prosperity for present and future generations.

xii

INTRODUCTION Emmanuel Agius and Tae-Chang Kim

Moral relationships among generations are complex and have only recently become a topic of concerted philosophical debate. John Rawls' A Theory o f Justice, published in 1971, was important in bringing the topic of obligations to future generations into modem philosophy and Derek Parfit's Reasons and Persons, published in 1984, is credited with advancing the topic further through counter-arguments. However the conceptual framework concerning the rights of future generations is still at an early stage of formulation and a lot of scholarly effort is currently being invested to ensure that epistemological and other difficulties will not tempt us to discount the well-being of our progeny. Many philosophers acknowledge that the living have moral duties to members of future generations and that there are constraints upon what contemporary people may do in matters affecting future people. The dispute centres mainly around the concomitant question of whether future generations can be said to have rights. Inevitably, the question arises as to how best protect the interests of future generations. This volume examines one positive way forward which entails the setting up of a mechanism that would empower future generations by having a guardian to represent their interests in regional and international fora. Such a process is to be supplemented through the education of the individual conscience; no change can be effected unless people become aware of the problem and personally convinced of its implications. The following contributions by prominent philosophers and jurists examine closely the innovative concept of the guardian and discuss concrete ways to implement it. Rather than presenting a synopsis of each contribution, this introduction offers a background common to the individual presentations and indicates some of the benchmarks which might be taken into account for policy­ making and implementation.

Introduction

SOLIDARITY BETWEEN GENERATIONS "All life is interrelated. We are all caught in an inescapable network o f mutuality, tied in a simple garm ent o f destiny. Whatever affects one directly, affects all indirectly. We are made to live together because o f the interrelated structure o f reality”.

These words by Martin Luther King set the framework of our discussion, which is that of a just intergenerational community where past, present and future generations are considered as a unity. This perspective envisages the rights of posterity not as rights pertaining to potential future individuals or a possible group of persons whose present non-existence could be seen as disallowing the attribution of rights to them. Rather the rights of future generations are perceived as part of the collective rights of humankind, that is the rights of the human species as such, extended over time and space and including both the present as well as unborn generations. Both present and future generations enjoy the same rights, since all existing and potential human persons are members of one collectivity, humankind, whose rights are common to all generations. The two opening papers by Dr Emmanuel Agius and Professor Per Ariansen offer a philosophical reflection on why we should care for posterity in a just intergenerational community where past, present and future generations are considered as a moving image over space and time, each giving expression to a humanity common to them all.

CARING FOR FUTURE NEIGHBOURS Nobody doubts that there exists a basic human longing to extend our horizon beyond the present era. Professor Christopher Stone demonstrates this contention by referring to the state and other human activities that transcend the now by identifying ways of linking the past with the present and come up with new hopes for the future through responsible decisions. What are libraries and monuments if not living memories and repositories of hopes that unite generations over time and ensure the survival of a nation through history? What are state constitutions and institutions if not the distillation of experience and the embodiment of thoughts enshrined in laws and charters to ensure their propagation over time? What is education if not the building up of a nation and the formation of its citizens through the wisdom of the past in order that they can face challenges responsibly in building a global neighbourhood? Similarly, our concern for future generations is another manifestation of the human spirit extending its consciousness beyond the present. Without a vision for the future, both groups and individuals become moribund. Every living society, culture, tradition needs its collective dream, one which is not utopian but a concrete historical ideal. This care for our progeny and our desire to pass on to them a world fit to live in could find expression on a regional and international level through the establishment of a guardian to safeguard that golden string of wisdom and moral values that make it possible for humanity to flourish and develop from generation to generation. Dr Rachid Driss and others emphasize the role of the state in promoting an innovative multidisciplinary and self-promoting education that mobilizes individuals, groups and organizations to take an active role in implementing policies that respect human rights and are economically and socially responsible towards those who are to follow.

xiv

Introduction

THE GUARDIAN: ITS NATURE AND FUNCTION Humankind as a collectivity transcends individual and national boundaries and cannot be simply identified with the community of states. We fill, as moral beings, a crucial role as members of a crossgenerational community, a community of beings who look before and after, who interpret the past in the light of the present, who see the future as growing out of the past, who see themselves as members of enduring families, nations, cultures, traditions. As one organic whole, humankind is the subject of collective rights. By considering posterity as part of collectivity endowed with rights, it follows that future generations are, together with the present one, part of an entity which can be considered as a juridical person, the subject of rights. On the international level the legal mechanism does not yet give effect to the idea of a guardian for posterity. However, Professor Boldizsar Nagy believes that there are valid moral and philosophical reasons supporting the development of law into accepting future generations as a group with specific interests deserving legal protection. Dr Philippe Sands tries to identify the rights of future generations as recognized in current international legal instruments and examines their practical implications. Similarly, while noting that future generations are not yet recognized as subjects of international law, Dr Simone Borg argues that such rights are gradually being translated into specific rights and duties relating to the protection of national resources and the common heritage of humankind. Dr Kevin Aquilina recommends that the non-binding status of Agenda 21, which recognizes the right of future generations to inherit a healthy environment, be transformed into an international legally binding instrument. Professor R St } Macdonald examines several United Nations commissions to determine if they can offer a procedural model that could be helpful in establishing the office of a guardian for future generations. Dr Geping Rao sees the United Nations as an international organization fit to take on the role of a guardian and advocates the establishment of a competent organ, such as the United Nations High Commissioner for Future Generations. On controversial topics such as that of a guardian for future generations it is almost impossible to ever arrive at a chorus of voices that agree on a common way forward. For one, Ajai Malhotra is rather sceptical about the establishment of a guardian. For him a way forward would be an international coordinating mechanism involving interested NGOs. Dr Philippe Sands also advocates the enhancement of the role of NGOs in improving the implementation of existing principles and rules of international law. A better integration of the social, the economic and the environmental factors in policy-making ensured through applying the precautionary principle is the proposal advanced by Dr. James Cameron.

ONGOING DIALOGUE The debate on the nature and function of a guardian for future generations must go on. Ongoing dialogue is like a torch that helps to trace a path to be followed amid contrasting voices. The Draft Instrument Establishing the Role o f a Guardian put forward here by Maxwell Bruce (who with Dr Sidney Holt, first presented the "Guardian Proposal" at a Pacem in Maribus convocation about 20 years ago) attempts to set the ball rolling and should be further explored. Meanwhile a concrete xv

Introduction way forward for helping future generations now would be the wise employment of our efforts and resources to eliminate problems that currently threaten our lives, including war, racism, poverty, nuclear weapons, illiteracy, unrestrained population and excessive nationalism. The convening of this international conference addressing the theme of A Guardian for Future Generations would have been impossible without the support and coresponsibility of the Future Generations Alliance Foundation of Japan, FIELD at the University of London, and Malta's Ministry for the Environment. We would like to express to all these institutions our sincere thanks. A word of gratitude also to Lionel Chircop and Stephen Caruana for their painstaking and diligent work in correcting the manuscript and assembling the final volume. We hope that this timely contribution will arouse further interest among the general public on future generations and lead many to realize the urgency of acting responsibly now in order to ensure peace and sustainable development from generation to generation.

xvi

PARTI

Philosophical Reflections

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1

OBLIGATIONS OF JUSTICE TOWARDS FUTURE GENERATIONS: A REVOLUTION IN SOCIAL AND LEGAL THOUGHT Emmanuel Agius

An impressive series of conventions, charters, documents, agreements and treaties adopted by international conferences and international organizations, in particular the United Nations, some of which deal with global issues and others which are regional in their application, reflect concern for the future of humankind and set forth principles or obligations intended to protect and enhance the well-being of both present and future generations. Since the 1972 Stockholm United Nations (UN) Conference on the Human Environment, most countries, whatever their political systems or levels of economic development, have in general shown a remarkable willingness to adopt new rules to regulate environmental issues. Many of these environmental policies specifically single out the responsibilities of the present generation to bequeath to posterity a world worth living in. Beyond doubt, the 1992 Rio Earth Summit represents the first international effort to safeguard the quality of life of posterity. It is indeed remarkable that the three major documents signed at Rio, namely, the Rio Declaration, the Convention on Biological Diversity and the Convention on Climate Change incorporate the concept of intergenerational solidarity and responsibilities. Moreover, the preamble of the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights (1993) recalls the determination of the UN to save succeeding generations from the scourge of war. Then, Article 6 of the same Declaration stipulates that the right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations. Recent attempts to develop a precautionary principle in international law also reflect concerns about the effects of our actions today on the environment of future generations. The principle attempts to answer the question of when to constrain activities that risk harming the environment in the future. International policies on environmental issues have recently undergone very substantial and rapid development. One of the most striking features of many

Part 1: Philosophical Reflections present-day national and international environmental policies is the promotion of our obligations to unborn generations as a matter of justice. Traditionally, justice was defined as "giving to everyone his due". It is claimed that in environmental issues the present generation is obliged in justice to render what is due to unborn generations. Beyond doubt, the discourse of intergenerational justice marks a fundamental shift in the paradigm of international environmental policy. Much of the recent discussion on future generations among philosophers is taken up with the attempt to ground our responsibilities in a normative ethical theory. This is seen as important because an ethical theory can give us criteria for evaluating whether a proposed action is right or wrong. Does it make sense to speak of justice between generations? Can our responsibilities to posterity be grounded on justice? Can a theory of intergenerational justice adequately frame our moral intuition not to leave a plundered world to our descendants? Evidently, the discourse on justice leads us to the language of rights and duties. If something is claimed as a matter of justice, it implies that one's right to obtain that object must be respected. But can a non-existent person claim something as his/her right? Can we have duties to persons who do not yet exist? Some philosophers claim that in stipulating obligations of justice towards future generations, we argue on duties towards human beings who are not yet bom and whom we cannot "see" as individual persons. We have no material relations at all with them. How can a moral commitment exist towards these shadowy figures? How can we grant moral status to people who do not yet exist or who might even not exist at all? How can we rationally ground our obligations to unborn generations whose identity is dependent or contingent on so many factors? There certainly is, in daily life, an irrational preference for that which is proximate in space and time. This preference can be tested in those instances when it is quite clear that the needs of the present can only be met by neglecting the needs of the future. I think that one can say that present-day official discourse in environmental context does not consider mere temporal distance as a sufficient reason to diminish the weight of the interests of future generations. It is quite another matter, of course, that contemporary environmental policies aim to shape an economic state of affairs (the notion of 'sustainability') which avoids the sacrifice of the future for the present. In this chapter my claim is that our moral obligations to future generations are rooted in a concept of social justice redefined from an intergenerational perspective. First, Rawls' theory of justice is discussed critically in order to demonstrate its shortcomings to frame adequately the newly awakened sense of responsibility towards generations yet to be bom. Then, I argue that what we need in order to speak meaningfully about justice between generations is the elaboration of a theory of a just community which encompasses a broader dimension of time horizon. The traditional concept of social justice is challenge by a new philosophical vision of reality characterized by interrelatedness and interdependence. It is only such a "generality of outlook", to use A.N. Whitehead's own words1 to describe the vision of an interrelated and interdependent reality, that leads us to a "morality of outlook" with its implied notion of social justice broadened to encompass the community of humankind as a whole, extending beyond present space and time.

Obligations o f Justice

RAWLS' CONCEPT OF JUSTICE BETWEEN GENERATIONS In 1972 John Rawls published A Theory of Justice. A number of writers have explored the Rawlsian approach for its potential as a base for our responsibilities towards future generations. Rawls' theory is "contractarian", that is, it belongs to an ethical tradition where moral behaviour is seen as that mutually agreed on by members of society; moral behaviour is the product of a social contract. Rawls' theory of "justice as fairness" gives due consideration to the question of justice between generations. As Rawls himself admits, "the account of justice as fairness would be incomplete without some discussion of this important matter."2 He claims that a theory of justice has to apply to all members, whether they are living now intratemporally or intertemporally.3 In other words, he claims that the theory of justice has to apply not only to one group of people, or to one generation, but to all generations. Rawls lists three rights which all generations can claim from their predecessors. All generations have the right to an appropriate rate of capital saving, to the conservation of natural resources and the natural environment, and to a reasonable genetic policy. Given that all generations have equal rights and that no generation has stronger claims than any other, how does Rawls' theory of justice approach the issue of the rights of future generations and the obligations which every generation has towards the future? To what extent is the present generation bound to respect the claims of its posterity? How far in time does the pattern of rights and duties between the present and future generations, arising out of the relationship of justice as fairness, actually extend? Are the claims of all generations protected? In other words, does the concept of justice as fairness and its corollary notions of rights and duties extend to all generations? One would expect that the pattern of rights and duties apply to all the contracting members of the original position.4 Rawls formulated the "just saving principle" in order to explain the relationship of justice between generations. According to this principle, what every generation is expected to do is to hand on to its immediate posterity a somewhat better situation than it has inherited. Anything less than this would be unfair to them, anything more would be unfair to the present generation.5 In extending the theory of justice between generations, Rawls has difficulty imagining the contracting parties being members of different generations. Therefore he assumes that they are contemporaries but do not know their position in time. Thus each generation lies behind a "veil of ignorance", not knowing whether they are living in a resourcerich world or a polluted world or a technologically advanced world. Rawls alters the motivational assumption that he originally makes regarding the contractors. He switches from viewing the parties in the original position as individuals to viewing them as family lines.6 Rawls introduces this methodological change because he reasons that, though man's considered judgement dictates that earlier generations should save for later ones, self-interested individuals in the original position would disregard the rights of future generations and would choose not to save anything for them. He assumes that the only "rational self-interest" which can be relied upon to transcend generations is concern for one's own children. Motivated by this parental concern, each generation is presumed to act justly toward the next. Rawls' explanation of intergenerational justice in terms of the just saving principle has in a way restricted transgenerational moral relationships only to overlapping generations.7 For this reason, it seems that the 5

Part 1: Philosophical Reflections Rawlsian social contract theory cannot offer an adequate ethical framework to underpin the contemporary moral concern for the far distant unborn generations. The just saving principle supports obligations corresponding to the rights of the immediate one or two generations; but beyond that, there is no motivation to do that. This short timescale interest in the future is unable to justify any moral concern about the effects of actions with long-range effects, such as those resulting from genetic engineering and nuclear energy.

THE EMERGING CONCEPT OF HUMANKIND AS A COLLECTIVITY The increasing references in international documents on ecological issues to the term mankind rather than to individual persons or groups are a clear indication of the new direction towards which environmental policy is now moving. Humankind as a collectivity is emerging as the new subject of rights to share the resources of the earth, to enjoy an environment of a quality that permits a life of dignity and well-being, and to be immuned from the effects of atomic radiation. Some decades ago an agreement was reached that the explorations on the moon and other celestial bodies shall not be carried out for the benefit of only some individuals or a particular people or nation, but for mankind as a whole. Moreover, the cultural and natural heritage of the world is also considered as belonging to mankind as a whole. Furthermore, all member states of the United Nations have agreed that scientific and technological progress shall be used for the benefit of mankind. Another indication of the emerging notion of mankind as a collectivity may be found in the concept of common heritage introduced in international environmental law to regulate the global commons. That which belongs to all mankind cannot be considered simply as unexplored and unclaimed territories suitable for expropriation and exploitation on a first-come-first-served basis. Resources declared as common heritage are to be managed on behalf of all countries for the benefit of mankind as a whole and must be used only for peaceful purposes. Central to the concept of the common heritage of mankind, proposed for the first time by Malta in the 1967 United Nations General Assembly in the context of the Law of the Sea, is the idea of trusteeship. Certain resources of the earth are regarded as being the property of future generations as well as the present one, and thus must be used with caution to be preserved for posterity. Present generations are answerable to future generations for their stewardship of the common heritage. Moreover, the idea of humankind as a collectivity which transcends the present generation is also included in Unesco's draft Declaration on the Protection of the Human Genome. This international instrument proclaims that the human genome should be protected because it is one of the constituent parts of the human heritage which belongs to the human species. Accordingly, it is clear that the idea of humankind as a whole has been now extended from an environmental to a bioethical context. Behind the notion of mankind as a collectivity lies a new vision of community. During the 1960s the world community was awakened to the awareness of the interdependence of all nations. Every nation is a section of a global community. All nations and continents exert influence on each other. This awareness gave rise to the notion of the international community of mankind which includes all people living now. Everyone is related to all the other members who collectively form 6

Obligations o f justice one global community. Later on, in the late 1970s, a new vision of community emerged that was broader than the international community. Every generation is just one link in an endless chain of generations who collectively form one community, namely the family of humankind. Mankind is a unity because every person, no matter whether living now or in the future, is related genetically and culturally to the rest of the human race. According to Alexander Kiss, this fundamental change in our conceptions of international enviromental law can be compared to the Copemican revolution which proclaimed that the centre of the universe was not the earth but the sun: states are less and less the centre of international relations, the focus becoming more and more mankind and its individual representatives, both living now and in the future. We are increasingly recognizing that environmental issues have interests that are common to all humankind. International environmental norms tend to restrict the actions of states for the interest of the community of humankind as a whole. Three main factors have contributed considerably to today's sense of belonging to the community of mankind as a whole. Firstly, it has now become quite evident that technological power has altered the nature of human activity. Whereas previously human activity was viewed as having a small effective range, modern technology has reshaped this traditional view. Modem technology has given us an unprecedented power to influence the lives not only of those now living, but also of those who will live in the far distant future. Secondly, today's solidarity with all members of the human race is the result of the discovery of the interdependence and interrelatedness of reality. This truth has been known for centuries, but it is only lately that we are experiencing it in all its complexities. Never before has human experience shown that absolutely nothing exists in isolation. Everything affects everything else. Every action, decision and policy whatsoever has far-reaching consequences. Everything, from culture to genes, will be transmitted to posterity. It is therefore becoming more evident that our relations are not merely limited to those who are close to us or to those who live contemporaneously, but extend in time to far distant generations. Thirdly, the increasing awareness of the finitude and fragility of our one and only earth was another factor which contributed to perceive ourselves as belonging to one family of humankind. With the 1972 Stockholm Conference on Human Environment, a new vision of the planet Earth emerged, metaphorically explained as a spaceship. For many years it has been thought that the planet contained unlimited resources to exploit, unlimited energies to manipulate, unlimited lands to develop and settle, and unlimited air and water to cleanse the world of wastes produced by man. Now we realize that none of these assumptions is true. Man is compelled to revise his sense of place in the biosphere. The quality of life of future generations depends upon translating this new vision into relevant principles and concrete actions.

MANKIND INCLUDES FUTURE GENERATIONS Does the term mankind, used in international documents on environmental policy, mean only the present generation, or does it also include those yet to be bom? It is interesting to note that those documents which employ the term mankind have direct references to present and future generations. This reveals that the term 7

Part 1: Philosophical Reflections mankind denotes more than the present population and hence more than a present collectivity.8 It encompasses a collectivity which includes both present and future generations. The interchangeable usage of mankind and present and future generations suggests that they are synonymous, and justifies the interpretation which international lawyers give to mankind in terms of species, thus including all generations yet to be bom.9 The explanation of mankind in terms of species gives a broader dimension to the concept of human rights, for it includes individuals who will exist in the future. This remarkable development in the evolutionary process of human rights has continued to widen the subject of human rights in international fora from a specific group to mankind as a whole, or the human species. The entire human race has a collective claim. Human rights could thus be defined as those rights to which every person, irrespective of whether he/she actually exists now or in the future, can have a just claim, by the very reason of being a person or because he/she is a member of the human species. This is close to what Jacques Maritain meant when he spoke of "things which are owed to a man because of the fact that he is a man".10 Human rights are therefore those claims which belong to all people, everywhere, at all times. This interpretation has transgeneralised human rights, rendering them applicable to all members of the human species, existing in time. Historians of the developments of human rights have adopted the habit of speaking of three generations of human rights: the political, the socioeconomic and the environmental. But it is possible to see the three generations in a somewhat different light: as the rights pertaining to the individual, the rights pertaining to defined socioeconomic groups, and the rights pertaining to the human species as such.11 The emergence of "solidarity rights" or the "third generation of human rights", in international environmental law gives credence to the broad definition of mankind in terms of both present and future generations. The collective rights of mankind are an extension of solidarity rights whose distinctive feature is the fact that solidarity among mankind as a whole is a prerequisite for their realization. Among these rights, we find the right to development, the right to peace, the right to a healthy and balanced environment, and the right to share the benefits of the common heritage of mankind.12 According to Vasak, the human rights of the third generation are those "bom of the obvious brotherhood of man and their indispensable solidarity; rights which could unite men in a finite world."13 The sense of solidarity among the international community which cropped up during the 1960s has in the late 1970s developed into a sense of solidarity across generations. The widespread sense of global interrelatedness has been broadened by the insight of transgenerational interdependence. It is reasonable to suggest that, in our search for grounding our obligations to unborn generations on sound ethical principles, we have to recast two concepts of traditional social ethics, namely common good and social justice, in the light of the community of mankind as a whole extending over space and time. Thus, the vision of an intergenerational community challenges us to reconceptualise the notions of common good and social justice by adding to them a time dimension. These two social principles justify relations of justice between present and future generations.

Obligations o f Justice

THE COMMON GOOD OF THE HUMAN SPECIES During the 1960s the concept of common good evolved from a national to a supranational level. This was the result of the newly awakened sense of interdependence which led to the notion of the family of nations. During the late 1970s the concept of common good was redefined from a broader perspective. Environmental issues have shown that the good of a particular society cannot be separated, first from the good of the world community, and second from the good of the human species as part of a finite world. Traditionally, the common good has been defined as that order in the community by virtue of which, every member of society can experience an adequate quality of life. Recent ecological awareness has made it quite evident that the concept of common good must include also the natural resources of the earth. Every species-being, both living now and in the future, needs an adequate natural environment for his/her well-being. The human species is not apart from nature, but a part of nature. Every human-being therefore needs natural resources for its survival and its quality of life. Accordingly, the natural resources should not be the privilege for some and a source of frustration for many, but the good of humankind as a whole. Humans as species hold the natural environment of the earth in common both with other members of the present generation and with other generations to come. The atmosphere, the oceans, the outer space and all the natural resources belong to all generations. Hence, our ownership of these resources is only ours in so far as we form part of the human species. In the use of these common heritages, we have therefore to consider the interests of the human species as a whole.

SOCIAL JUSTICE AND THE WEAKER MEMBERS OF THE HUMAN SPECIES Human beings have differed greatly in the accounts they have given of the concept of justice. They have spelt out the meanings and the practical implications of such phrases as "giving everyone his due" in many different ways. But they have always agreed on a number of basic points. The first is that justice is essential to human conviviality; second, that justice is not merely a matter concerning the relations between one individual and another - in traditional terms, commutative justice; it also implies duties of individual towards the community or communities to which they belong - in traditional terms, social justice. Thirdly, the concept of justice is logically connected with the concepts of equality and proportion; hence the requirement that an individual contribute to the welfare of the community has particular relevance to the question of proper conduct towards the needier and weaker members of humankind. Because its aim is the actualization of the common good, social justice has the task of ordering the community. Social justice, therefore, refers both to the duty of every member to contribute to the common good of the community, and to the responsibility of the community to all its members, with particular regard to those in a disadvantaged situation. Social justice demands the respect of everyone's right to share in the common good. This cannot be achieved without the cooperation of every member. Intergenerational justice may be defined as that principle of ordering of the community of mankind which will make it possible for every generation, 9

Part 1: Philosophical Reflections by virtue of its own effort and responsibility, to secure a proportionate share in the common good of the human species. Social justice appeals to the principle that a community has the moral duty to give particular help to its handicapped or weaker members - not in terms of desert or reward for their contribution to the productive process, but simply because of human solidarity. Future generations can also be seen as handicapped, and the claim to reserve resources for their quality of life is based on similar ground to that on which it is argued that the state is bound in justice to make welfare provisions for the aged, the physically and mentally handicapped, and so on. Intergenerational justice is thus equivalent to the rejection of a time preference which would allow the living to take advantage of their position of strength. Future generations are disadvantaged with respect to the present generation because they can inherit an impoverished quality of life. They share a condition of structural weakness in relation to us living now. Unborn generations are downstream in time from us and thus subject to the long-term consequences of our actions. The present generation has the power to overpopulate the earth, to spoil the delicate balance of the biosphere, to store nuclear wastes which are disastrous to their genetic heritage, to deplete the earth's natural resources and to use genetic engineering to manipulate the evolution of species. Even their very existence is threatened! Moreover, future generations are disadvantaged because they are mute, having no representatives among the present generation and so their interests are often neglected in present socioeconomic and political planning. They cannot plea or bargain for reciprocal treatment since they have no voice and nothing they do will affect us. The resources of the earth belong to all generations. Our ownership of these resources is only ours inasmuch as we form part of the species. In the use of this heritage, we are bound in justice to consider the good of the species as a whole. We have no right to intervene irreversibly and exhaustively in our relations with the natural world so as to deprive future generations of opportunities of well­ being. We should not rob what belongs to them by a just claim. No country, continent or generation has an exclusive right to the natural resources of the earth. These resources have been handed over from past generations; it is therefore our responsibility to pass them on in good and enhanced condition to posterity. We have an obligation grounded in social justice to share the common heritage with all the present population as well as with future generations. Measures should be adopted to redress the imbalances between the present (advantaged) generation and future (disadvantaged) generations. This is a requirement of justice towards the future members of the human species, wherever they may be. Social justice forbids any generation to exclude other generations from a fair share in the benefits of the common heritage of humankind. Justice requires that the interests of future generations should be considered in terms of the interests of the human species as such. In other words, social justice demands a sense of solidarity with the whole family of humankind. We have an obligation to regulate our current consumption in order to share our resources with the poor and with unborn generations. It is only the unity and the solidarity of mankind that is the one solid ground, in my opinion, for asserting that it is the obligation of present generations to care about possible and probable future ones, or alternatively that future generations have claims upon us, even though they are not present to push them and can only do so through others acting on their behalf.

10

Obligations o f Justice

A GUARDIAN FOR FUTURE GENERATIONS: A MATTER OF SOCIAL JUSTICE In view of the above considerations, the appointment of a guardian to represent the needs of future generations is a matter of justice. A just intergenerational community must give a voice to the voiceless. This would be the first step towards the juridical recognition of the rights of humankind and of our responsibilities towards unborn generations. There is no social justice without sharing and participation. The intergenerational community of humankind can only become just when present generations learn to share the resources of the earth with all current and future members of the human species. Global and intergenerational sharing moves us beyond the old model of development to a radical rethinking leading to fundamental structural change. Moreover, participation is at the very core of social justice. All members of the human species have the same fundamental dignity and right. Since the resources of the earth are the common heritage of humankind, all members of the human species have the right not only to share in the common goods of the earth, but also to participate in their management. The right of every member of the human species to participation is grounded ultimately in the fact that the natural and cultural wealth of the earth are the common heritage of humankind. Thus, the setting up of an organ to represent future generations is the most legitimate and just way to give posterity the possibility of participation in today's decisions and actions which after all will affect their well-being. Our responsibilities towards future generations have already been endorsed in many national and international declarations, treaties and resolutions. However, recognition of our responsibilities to far distant unborn generations alone is not enough. There must be an implementation of this principle. Time is now ripe enough to translate words into concrete actions. Future generations need to be empowered by appointing a guardian to alert the international community of the threats to their well-being. This would be the most appropriate step to safeguard the quality of future life. It is a long-established tradition in almost all civilized societies of the world that persons who are declared legally incompetent, such as minors and the mentally infirm, are protected by a set of institutions from those who might either advertently or inadvertently exploit their disadvantage. For instance, some other individual or group is charged with the responsibility of acting as proxy, or an advocate, on behalf of the person whose ability to represent his or her own interests is non­ existent or impaired. In this respect future generations are similar to those that our society has declared legally incompetent. The same consideration that presently supports proxies for the incompetent among our contemporary also gives credence to the idea of a proxy for future generations where contemplated policies could impose substantial long-term risks. The authorised person or an organ (guardian) appointed to speak for future generations at various international fora, particularly the UN, would be entitled: ■ to appear before institutions whose decisions could significantly affect the future of the species to argue the case on their behalf, hence bringing out the long­ term implications of proposed action and presenting alternatives. His role would not be to decide, but to promote enlightened decisions. Thus, the guardian would have the power of advocacy, to plead for future generations. He would only have the right to put forward arguments on behalf of future generations. U

Part 1: Philosophical Reflections • to introduce a new dimension - that of the time horizon - into the resolution of issues traditionally confined to the here and now. The greatest danger to future generations is that living resources essential for human survival and sustainable development are increasingly being destroyed and depleted. Future generations are seriously threatened to inherit a poor quality of life. The guardian would face the burden of opposing the firmly established attitude of our civilization in discounting the future. The appointment of a guardian would be a true achievement for the interests of those generations yet to be bom.

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2

BEYOND PARFIT'S PARADOX Per Ariansen

There are a number of problems connected with the question of our obligation to future generations: Can one have obligations at all towards the unborn and unconceived? What becomes of our obligations in view of the fact that we have limited knowledge of the preferences and technological abilities of future generations? Quite possibly all these questions are overshadowed by an almost paradoxically stunning conclusion1 embedded in an argument offered by Derek Parfit.2 The argument seemingly relieves the present generation of (almost) all responsibility for future generations. Even if we did (and we quite possibly do) conduct an environmental policy with strongly detrimental effects for posterity, the people of the future, according to the argument, will not want us to have acted differently. For this reason they cannot be said to be victims of our policies. Hence, present generations would be ethically free to neglect (almost) 3 all of the interests of future people. The central premise of the argument is that policies implemented in the present not only have certain effects on future generations, affecting their welfare for better or for worse, but they will also determine which persons will be bom. To a large extent large-scale policies will determine which persons will be bom. For example, those of us bom after World War II would most likely not have been born had it not been for the war. The war situation almost certainly played a part in determining which persons came to have children together and also at which moment conception took place. An alternative set of parents, or even a different set of gametes from the same parents will result in a different person being born at best, someone in the position of a sibling to someone who actually was bom. Let us imagine, moreover, that we have a choice in our generation between two quite different environmental policies4, one of extensive saving and one of limitless harvesting and exploitation of global resources. The two policies will, of course, have consequences for the welfare of coming generations. The limitless harvesting alternative will raise the standard of welfare for the present and immediate generations, but will significantly lower the welfare of the coming generations.

Part 1: Philosophical Reflections The extensive savings alternative may lower the present standard of living, but may in the longer run be significantly more beneficial to the future generations. However, the same dynamics apply here as in the World War II example mentioned above. If one alternative is chosen rather than another, the result will be that one set of persons rather than another will be bom. Initially, the limitless harvesting alternative seems to be an offence against those who in the end receive the damaging, long-term effects of our actions. They are supposedly the victims of our inconsiderate policies. According to the so-called person affecting principle5, an act can only be morally wrong if someone is affected. Now, a minimum requirement for being a victim of someone's actions seems to be that the alleged victim would (at least counterfactually) prefer that the actions in question were undone. If we apply this requirement to the case in hand, we might imagine that we could ask the people of the future whether they would have preferred us to have chosen the savings alternative and not the ruthless exploitation alternative. Although the savings alternative would have improved the living conditions for whoever may come to inhabit posterity, the people who actually were bom as a result of the exploitation alternative would have to face the fact that any other policy on our part, for instance a milder form of exploitation, would have given as a result that persons other than themselves would have been bom. So long as future people do not regret being bom, the fact that they have the gift of life6 outweighs the inconvenience and even suffering of a cumbersome existence. The stunning conclusion is that those bom as a result of an exploitative policy on our part are not victims even though they suffer from our deeds. If they prefer living to not living, they would not want us to have acted differently . In this case they cannot say that they have been harmed by our actions. Future people - if they appreciate being bom - would actually be grateful that we chose the exploitation alternative. To many people this conclusion stands out as strongly counter-intuitive. We feel that this argument is flawed. Let us investigate why that might be. The expression gift of life could suggest that existence is what the living really appreciate. Existence is the significant donation outweighing all else. We must bear in mind, however, that all persons capable of benefitting or being harmed will necessarily have existence. There will be no member of any future generation who will not have existence. This means that existence is not a property which one may or may not have. It does not make sense to envy others because they exist or will exist, like one envies someone for possessing property which one lacks oneself. If we make an inventory of the good and bad aspects of our lives, we will not add existence to the list. In fact, existence is not a property or predicate in the same way as other properties. Rather it is the very being to which other properties are predicated. However, this consideration does not entirely undermine what we could call the "no victim argument". The object of concern here is not existence as a general and abstract notion. Rather, it is the singular and concrete existence of oneself; one's personal identity. So, another point of attack might be to find situations where one's own actions significantly change one's own life for the worse to an extent which determines one's identity as a person. If regretting one's own actions makes sense in these cases, so would perhaps regretting similar actions performed by others in the past. There will certainly be cases where a person regrets that he or she made one or more fatal mistakes in life - mistakes of such consequences that they dramatically changed the content (essence or identity) of the person's life. Had I not crawled out of the window as an infant, I might not have ended blind in a wheelchair with 14

Beyond Parfit's Paradox an unclear mind. Had this event not occurred, I might have been a different person. If the analogy is accepted, the issue may be settled: most people readily regret acts performed by an earlier version of themselves or regret acts performed by others which have given their life a dramatically undesirable content and in effect given them a different identity. In this connection it is not an objection that without the unfortunate act, one would have been a different person. In a sense, wanting to have been a different person is the ultimate dream of the victim of the unfortunate act done in the past. The adequacy of this move against the no victim argument depends on the criteria one accepts for distinguishing between different persons. With very weak criteria, we change identity incessantly. If we apply other criteria (such as requiring a unique set of genes for a person to be "someone else") the person before and after the unfortunate dramatic change in life will have the same identity. With strong criteria this line of attack would fail. The no victim argument centres on what we here may call a "decisive question", counterfactually posed to people in the future: When you consider your situation, would you prefer rather not to have been born? Let us examine the alternative to being bom for the future person. If a given person had not been born, he or she could be characterized as a possible person. Suppose that a fertile man and a fertile women abstain from bringing a possible person into existence. Clearly, this does not offend the possible person. Were this not so, we would be offending innumerable possible persons all the time. These possible persons do not in any way exist, and cannot be benefitted or be harmed. These non-existent people cannot possess the ability to experience joy or suffering. A student told me once that he had often wondered whom he would have been, had his mother married someone e ls e /1 could relieve him of his disconcert by assuring him that he already knew the answer (since this was exactly what his mother did). In fact we are all in a position that someone else could have occupied our place. Each and every one of us has already, metaphorically speaking, squeezed alternative persons out of existence. I hardly think anyone sees this as a problem. The much wanted sister to a series of brothers is not worse off for not being bom. We should now be prepared for a more effective attack on the no victim argument. The decisive question is raised within the framework of preference utilitarianism. In order to choose a morally right action within this framework, one has to compare the possible alternatives of action and their consequences with regard to how they affect the parties concerned, the latter being assessed in terms of their preferences. The affected individual will have to imagine a world with one state of affairs and compare it to a world with another state of affairs, and report which is the preferred one. Individual utilities must then be summed up, and a decision should be made in favour of the alternative which maximizes the common utility in total or on average. Suppose, now, that we apply this approach to people in the future and ask them the decisive question: When you consider your situation, would you prefer rather not to have been born? The individual will have to imagine two alternatives, one in which he or she was bom and another in which he or she was not born. And then the individual must assess these two alternatives and form a preference. However, when the individual is asked to consider whether the state of not being bom is preferable, there is no way in which he or she can identify such a state of affairs or assess its value, since that state of affairs cannot be experienced by the evaluating individual. The world where the individual exists merely as a possible person (in fact as an absent person), cannot be evaluated by 15

Part 1: Philosophical Reflections that person. The decisive question is a delusive question. It cannot be answered and is not a meaningful question. The individual who attempts to answer cannot but assess the (negative) value of blotting out a life already lived. But had the person never been bom, this life would never have come about. Its absence could not have been regretted. Asking someone to evaluate for himself a situation where no self exists amounts to a mistake of categories. It is similar to asking whether it would be good to abolish the distinction between good and bad. Questions like this have no meaningful answer. Living is not better than never having been bom. Living is incommensurably different from never being bom. It may be argued that a person considering suicide or considering to die for a noble cause, is in fact comparing something (living) to nothing (being dead). This argument, however, may be refuted by pointing out that the two situations are significantly different. Wanting to end a life is decisively different from wanting never to have been bom. A noble or tragic death may have a significant meaning within the narrative context of the life history of the person. Never being born induces no meaning. History is full of heroic contributions from those who gave their life and tragic contribution from those who were killed. There are no contributions from those that never existed. We can conclude that once the meaning of the decisive question becomes clear, the fact that different persons will be bom under different policies, loses its relevance, as explained above. Gregory Kavka tried to come to terms with the no victim argument by introducing a prohibition against offering someone's life as one commodity among others that this someone may choose from in (counterfactual) bargaining situations.8 This approach recalls the irony of the standard gangster explanation as to why someone accepts the Mafia's bargaining terms. It is because "he is given an offer he cannot resist". When the alternative to choosing an evil situation is to give up one's life, one is not in a free bargaining situation, but is coerced into choosing life over all sorts of evils. So, the person presented with the decisive question does not reply from a free and autonomous platform. However, Kavka failed to grasp the difference between sacrificing, or giving up one's life, and never coming around to being bom. The two are asymmetrical. It makes perfectly good sense to choose to die, rather than endure a painful situation in one's own life, or to sacrifice one's life to alleviate the suffering of others. It does not make sense to choose between some evil and never having lived. The Kavka approach nevertheless points to an interesting and relevant aspect of dealing with moral questions. The approach of preference act utilitarianism entails, as we pointed out, asking whether a specific action is preferred by those who will be affected. However, the shift towards rule utilitarianism calls for detachment in ethical theories, from Hume's judge to Rawls' persons in the original position, indicating that there is a tacit understanding: moral matters should not be judged within the framework of one particular life history. Ethically relevant information from affected persons is not really their reports on whatever emotions rule their mind. What is relevant is their opinions about moral rules. The fairness of imprisonment cannot be assessed by asking the criminal if he or she really wants to go to jail. A similar categorical mistake is made when we pose the decisive question to hypothetical individuals in the future. We ask them to evaluate a policy, and the answer is distorted by idiosyncratic considerations. Rather than relying on the model that individual persons in the future are asked whether they would rather not have existed, I suggest that we see our obligations to both future and present persons as obligations towards placeholders. It is a 16

Beyond Parfit's Paradox familiar fact that rights and duties attach to positions or officeholders. In present interhuman relationships, obligations go towards the various nodes in a positional network of placeholders (with possible exceptions for obligations towards those we love - but then, these particular obligations may not be strictly ethical obligations). To any holder of the position of sentient beings we have the duty not to inflict unnecessary pain, to any rational being we have the duty not to cheat or lie. To future generations we have an as yet unspecified duty to be considerate. As this chapter has tried to explain, in due time persons occupying the nodes in the (moral) community network are fully justified in passing moral judgement upon us - either for not thinking future people worthy of consideration or for not being willing to restrain our behaviour for the benefit of posterity.

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PART 2

State R esponsibilities Towards Future Generations

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3

THE RESPONSIBILITY OF THE STATE TOWARDS FUTURE GENERATIONS Rachid Driss

When George Orwell wrote Animal Farm, he did not anticipate the perestroika which put a final point to the nightmare of planetarian collectivisation in 1985. George Orwell's vision seemed, up to recently, perfectly obvious: prepare future generations to live in an utopic collectivism, with prevailing equality, where science and technology would shape the world. Moving towards this end seemed unavoidable. But as Fuaukayama observed, history (the Marxist episode) ended with the fall of the Berlin Wall. Capitalism has been rehabilitated and freedom recovered its splendour. The generations living since 1984 experience many contradictions and are even victims of history. Only the impact of technical instruments and the sophisticated computers could help them adapt to the new society. Today's world is very different from the one at the beginning of the century, but it is not an Orwellian nightmare. At the beginning of the century, television did not exist, and the computer revolution were just in progress; Charlie Chaplin (Chariot) gave people a taste of the new world with his Modern Times. Cities were not crowded as they are today and rural areas were more active. Pollution was not known as an international phenomenon. Travelling was slower. Airplanes were not the mode of transportation. Railways and boats were used and even cars and buses were at their beginning. Family ties were close. School masters and fathers were respected and feared. We are at the end of the century living in a different world, a world full of speed, electronics, overpopulation, confused individuals and social life, with the threat of a polluted planet. In our daily lives we may forget the possibility of an atomic catastrophe but the risk is pending over our heads, like Damocles' sword. Science has given birth to monsters.

Part 2: State Responsibilities

WHAT NEXT? Time goes on and history does not actually end but acquires new surprising elements and we have to ask ourselves what kind of environment we want to offer to future generations. A child bom today will be approaching 20 in the year 2015. What will the world look like ? Are international efforts sufficient to achieve in 20 years' time, the goals elaborated by consensus, by the international community: control population growth and the deterioration of the environment, clean the waters, preserve the forests, prevent nuclear threats, eradicate AIDS and similar diseases? Are international efforts able to insure that development, human as well as material, create enough jobs for young people and prepare cultural conditions where ethics and tolerance prevail? Could international efforts safeguard the next generations in the near and the distant future? Individually, we have a responsibility towards forthcoming generations. This responsibility is inherent in our own existence. We spring forth from the past and we give birth to the future. We explore history and try to understand who our ancestors were and how they behaved. Looking at our children and grandchildren, we think about them, their conditions of life and we hope they will carry our culture and our hopes with them. Some people could repeat Madame de Pompadour's (Louis XV's mistress)" Apres moi le deluge". Yet, this manner of thinking is egotistic and is a contradiction to humanity. Individuals, by nature and guided by ethics, feel responsible for themselves, are conscious of their heritage, and share the burden of their descendants. This concept of individual responsibility may be rejected, not only by egotistic behaviour but also by a deep sense of liberty and generous feelings; let future generations be free from the behaviour of present generations what is good for us may not be good for them. Everything depends on the shape of tomorrow's world, the discoveries, the means at the disposal of people. Certainly, we cannot dictate future generations' way of life. But at least, we can preserve nature from destruction, we can preserve values and ethics and transmit to the coming generations natural and cultural resources, safe from material and spiritual pollution. This is our responsibility, individually as well as collectively. Society as a whole has its responsibility, but individuals or groups of individuals cannot fulfill the task by themselves. State support and cooperation is needed to carry out this important task. First of all we have to give an appropriate definition of the concept of state today and what it may be in the next century in the new international order. Following the collapse of the Soviet Union we live in disarray. One of the objectives of the Marxist ideology, on which the Soviet Union has been based, was the disparition of the state as a form of power, replaced by the community of men. Nevertheless, nowhere was the state as powerful as it was in the Soviet Union. After the collapse of the Soviet Union, it became apparent how important the state was for organizing the whole life of a nation or a group of nations. The state was a factor of stability and it could bear great consequences when it did not fulfil its responsibility. Upon its collapse the state ruling the Soviet Union was not replaced by communities, but by federal or national states. The state as a ruling structure did not disappear but continued to fulfil its functions. Nevertheless, we are not to ignore what is frequently said by some commentators that the nation-state has failed to fulfil its objective, especially in countries liberated from colonialism. During the struggle for freedom, people nourished the hope that their independent state would solve all their problems. In spite of partial 22

The Responsibility o f the State achievements and lack of means or mismanagement, states could not do so. At the same time, welfare states are under heavy attack. Financial costs make their task difficult if not impossible to sustain. However, the state remains the most adequate structure to rule a country. The efforts to unite several states in a community or a union like the European Union (formed in Maastricht) are often retarded by the attachment which politicians and the public in general give to their national sovereignty. Several nations, divided by religion, ethnicity and culture are strongly opposed to unity. Whatever will be of the evolution of the states, under the economic, ethnic, security or cultural needs, it will be the product of historical evolution and will remain the best form of organized power. To reject this fact is very easy. To find another structure to organize nations, to form a humane society is a challenge that one cannot overcome. That the state is the best policy making instrument has been proved by many experiences of governance. But what is exactly a state? Is it just a land with a population? Is it an anonymous apparatus with a mysterious power? Is it a mere concept, a kind of screen behind which the authorities hide themselves in order to prevent the citizens to reach them in their quest for justice? Is it a ghost that frightens people and keeps them under control? In any case, the State is not a government: governments may change due to political changes but a state is a permanent structure, equipped with executive, legislative and judiciary powers. It has diplomatic ties with other countries. It negotiates and concludes treaties and conventions. It participates in international organizations dealing in several fields - political, economic, social or cultural. A state is a sovereign entity. It may leave part of its sovereignty through treaties or conventions, but a state has international commitments with other states. A state is the guardian of the values and the survival of a nation through history. Ibn Khaldoun, a Tunisian historian and philosopher (1332-1406 a d ) said that a state, like its individual members, is bom, grows and dies, but its life can be a very long one, guaranteeing for a long period of history the fulfillment of its objectives, and also playing a decisive role in the progress of human civilisation. The state is at the same time a guardian of the past and the future of a nation. Even in the case of dismantlement or collapse, it leaves behind traditions and memories, which are carried through from generation to generation. At the end of this century, looking toward the future and conscious of our responsibility to future generations, what can we do to guarantee them some degree of security and happiness? The training of new generations in preparation for the future worked smoothly in traditional societies. The road was mapped for them; it would follow a well-known path in a world without surprises. Education consisted of following the ancestors' path, in assuming development which was not a complex initiation. The welfare state aims towards a complete education for its children, from elementary school to job security, building their life, their leisure time and even their moral values and ideals which to some extent are shaped by the state of the economy. The state has to give up partly or completely its welfare role, and entrust it to individuals and collectivities. But the state cannot disassociate itself from its responsibility towards future generations. It has, to a certain extent, to follow the well-trodden path, to develop the acquired knowledge and contribute to the creation of the ideal environment. The foundation of this future construction, based on the wisdom of the traditional society and the schemes of progressive societies should remain under the state's domain. The responsibility of the state today towards future generations must be 23

Part 2: State Responsibilities studied in light of the modem era: future (which is called uncertainty) brings revolutions in lifestyle, thoughts or unsuspected ways of communication, advances in technology will enable people to exploit systematically and to the fullest the already threatened environment. Unbalanced situations, ruptures, birth of plagues - of which AIDS may be the first - give the state new responsibilities towards future generations: ■ A multiform education, including the most sophisticated techniques, allowing them to face and imagine the future to be built. ■ A new education, giving precedence to a democratization of social relations, promoting a culture of peace and a sense of ethics in order that the environment be conserved, threatened patrimony be protected. Our thoughts must be futureoriented. ■ A self-promoting education, enabling each one to build his own way of thinking, projecting his future with the help of these new tools. The state can offer new generations the power to build their future, achieve their goals and define their options, accepting or rejecting the existing patrimonial inheritance. Memory is a dynamic element, a selective one, otherwise it becomes a fossil, outdated, to be rejected. Let us be clear, however. Although the state, through government and constitutional institutions can act to promote and enforce laws, organize education and safeguard the environment, this is not sufficient. Action must be supported and completed by the efforts of non-govemmental organizations and the population as a whole. The role of the media is primordial. Our children watch television and from it learn good and about evil. Television often has more impact on them than parents or schools. The responsibility of the State to protect children and the new generation against violence and drug abuse as shown on television, can only be achieved if a new international order includes a consensus amongst states on a common policy. International cooperation is more than necessary in that field. The problem of the media is our problem, arising from the rapid changes in our everyday life. Let us be very clear on this question. By a common policy we do not mean the control or censorship of information and programmes. The objective of a common policy is to evaluate the present situation and develop guidelines to improve it by reducing, at least, the intensity of violence and crime and encouraging the less violent and more ethical and human aspects. The state should have an integrated policy, aimed at granting each citizen education, health care, good conditions for work, protection from the impact of the corruption of money and the damnation of extremist ideologies. It should also teach tolerance as well as ethics. The state should not only provide security - which is its traditional duty - but initiate policies for the protection and improvement of life conditions and social behaviours, reinforcing the efforts of individuals and non-govemmental organizations by adding its own resources to such efforts. Responsibility towards future generations should be considered not only in the materialistic sphere but also in cultural and moral debates. Leaving as inheritance an earth safe from degradation and pollution, where future generations can live happily, is not enough. We should not neglect the cultural heritage we have inherited from our ancestors. Culture and values have to be preserved and enriched by our own efforts. We have the duty to transmit these values, universally, to future generations. 24

The Responsibility o f the State The concept of an international guardian to remind peoples and states of their duties, to control their behaviours, is in line with the planeterian conception of world affairs as conceived by the United Nations. The task of such a guardian will be enormous. Its selection and the definition of its role will not be easy, but the guardian could help the state to fulfill its responsibilities. How should this guardian be selected? Should it be an individual or an institution at the head of which is a diplomat, a scientist or a group of people? Should the guardian be universal with regional and sub-regional representatives? What should be the role of non­ governmental organizations in such a system? Opinions on this subject are many and varied and should be the object of a wide consultation. But whatever the formula adopted, a guardian cannot ignore the existence of the state and its government. Cooperation is essential. The more democratic, respectful of human life and human rights a state is, the more conscious of environmental problems it is. When a state is respectful of these universal values, it will ensure their security to be passed on to our progeny. Hence, it will most likely cooperate at all levels with a guardian. The state should be able to protect the guardian, facilitate its work, avoiding rivalry and self-interest at all costs.

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4

A GUARDIAN AS MONITOR OF SUSTAINABILITY OF MARINE LIVING RESOURCES Sidney Holt

It is now several decades since it was estimated that global marine fish catches from wild stocks would peak at about 100 million tonnes annually, and then possibly decline. This prediction has turned out to be correct. The peak arises because of overall resource limitations; the decline because more and more of the species catches from particular stocks are not sustainable by those stocks. Nevertheless, more and more - and bigger, more powerful and efficient - vessels continue to chase fewer and fewer fish. Under these conditions some people have placed their hopes in the expansion of marine aquaculture - 1 think misguidedly, for several reasons, not least being the high external inputs of energy, and nutrients needed for success. These entirely predictable and predicted events indelibly marred the Law of the Sea negotiations of the 1970s, in which relatively scant attention was given to the needs for meeting the interests of future generations in obtaining food from the sea, compared with the attention given to establishing a legal regime for the exploitation of seabed mineral resources which, in terms of human needs and the global economy, are of more limited importance. However, the seabed negotiations did lead to a recognition of the requirements for enforcing the agreed principles, internationally monitoring the progress of exploration and exploitation, settling disputes peacefully and equitably - through tribunals and the like - and linking these with scientific research. Such considerations are virtually absent from the chapters of United Nations Convention on the Law of the Sea (UNCLS) dealing with living resources. However, some principles for sustainable use of these resources - a first step towards recognizing the needs of future generations - were established, and guidelines - really only very rough sketches - set out for the mechanisms through which the principles should be addressed in practice.

Part 2: State Responsibilities The principles were that: ■ fishing should not exceed sustainable levels, and that stocks should not be reduced to below levels which would provide the highest possible sustainable yield, subject to some loopholes for special economic and social situations; ■ the intensity of fishing on one stock should not be so high as to impair the productivity of those other stocks (eg predators) which were biologically associated with it; ■ exploitation of shared stocks - ie those occurring in the waters of more than one state or in both international and national waters - and especially highly migratory species, should be managed through appropriate international mechanisms. These mechanisims were envisaged as those already, or to be, set up under bilateral agreements, multilateral regional fisheries commissions and, in the case of one set of highly migratory species, the cetaceans (whales, porpoises and dolphins), as a global commission, the already existing International Whaling Commission (IWC). These provisions were worded in such a way as greatly to overestimate the ability of science to determine a priori the appropriate sustainable levels of exploited stocks and corresponding levels of fishing effort. That was not mainly the fault of the lawyers, but rather of the excessive confidence in its own ability held by the scientific establishment of the 1970s. More often than not, faulty estimates of the likely productivity of stocks have turned out to be overly optimisitc. We also now realize that even an infinity of data cannot be expected to lead to reliable prediction of complex - or even sometimes relatively simple - non-linear systems such as are constituted by communities of marine animals. As the difficulties have become more widely appreciated some scientists, at least in some fora, are turning to different approaches for devising regulatory measures that will safeguard the future use of these resources. The international instrument that has nurtured most carefully and, I think, successfully those different approaches has been the IWC, and I propose here to examine why that should be, and some of its implications. It happens, too, that the vigorous debate about commercial whaling has also laid bare some of the serious weaknesses in the international arrangements for regulating whaling and conserving whale stocks, weaknesses which have for decades exploited been with little restraint by governments engaged in commercial whaling (other issues arise in connection with the so-called aboriginal subsistence whaling - also under the control of the IWC the management of which has been, and remains, far from flawless; but I shall not deal with those here). The commercial whaling issue is special in several ways. First, there is an ethical controversy: the dispute about whether whales should be killed for human food or other uses, and if so whether it must be insisted that they are killed humanely or not at all. I will not debate that here. Second, among migratory animal species whales are exceptionally so; their movements encompass both hemispherical and circumpolar movements, especially in the southern hemisphere. From the biological and geographical point of view one could envisage rational management through three regional instruments (North Pacific, North Atlantic and southern hemisphere) rather than through the global IWC, but not in smaller units. Third, among marine living resources sustainable uses of whales have been formally recognised - by the IWC - as including non-lethal uses, such as ecotourism (whale watching). Fourth, whales have very low rates of reproduction and so are vulnerable to 28

A Guardian as Monitor complete extinction through excessive hunting, and if depleted take many decades, if not centuries, to recover. Their depletion and recovery is therefore truly of interest to future human generations, and not merely - as in most fisheries - to the same fishermen a bit later in their lives. It is a consequence of these special features that the IWC declared, in 1982, an indefinite pause (a commercial moratorium) in commercial whaling by its members, starting in 1985/86. The prime consideration was the acknowledged inability of its scientific committee (consisting of scientists on governmental delegations) to agree on management rules - mainly for setting annual catch quotas, by species and sub-areas - which would, even if followed faithfully, prevent any further stock depletions, and permit the recovery of those stocks which had already been depleted, in some cases it was thought close to extinction. Since that time the IWC has concentrated technical effort on devising new rules for calculating catch quotas which meet its objectives, including its explicit conservation objective of attending to the perceived needs of future human generations to inherit viable whale stocks for their use, whatever that may be. Most recently the IWC has decided that even when developed those rules should not be applied in a circumpolar southern ocean whale sanctuary comprising all Antarctic and most sub-Antarctic waters. The International Convention for the Regulation of Whaling 1946 is, of course, only binding on states party to it. Some commercial whaling has been undertaken by states that have never been members of the IWC, other states have conducted whaling operations and later joined the IWC, and on occasions member states have withdrawn from the IWC, temporarily ceased whaling but threatened to resume, now as a non-party if the IWC does not modify its present policy of suspending all commercial whaling until a comprehensive management system has been agreed. In the 1970s considerable effort was made, collectively, by IWC members, to persuade whaling nations that had not done so to adhere to the 1946 convention. This was fairly successful. A major feature of that success was a decision by members that they would not import whale products from non-members, and that they would not assist them technically or in other ways. One aspect of that was obstacles put in the way of vessels operating under flags of convenience, so-called pirate whalers (these, together with vessels operating normally but under flags of non-member states, became known as outlaw whalers). In the late 1970s and early 1980s a number of states joined the IWC that had never engaged in commercial whaling but were concerned, in principle, about proper management of marine living resources. Many of these were newly independent developing countries. Some of these have now withdrawn or allowed their full membership to lapse by not paying promptly their annual dues and thereby losing their voting rights and their right to receive documentation. The reason for this fall-away is financial, since IWC procedures demand subscriptions from small developing states at the same level as from large rich ones; desultory attempts to change this over the past 15 years have been unsuccessful. Whaling countries, rich or poor, pay a supplementary membership charge but this does not in the least represent an economic rent for their use of the resources. Even at its height, the active membership of the IWC did not exceed 40 states; it is now reduced to about 30, though most of the powerful states and also those with very large populations are still members. It is not necessary to refrain from joining the IWC, or to leave it, in order to avoid its regulations. Though resolutions can be adopted by simple majorities of votes cast, binding decisions require a three-quarters majority, excluding 29

Part 2: State Responsibilities abstentions, and no quorum is called for. However, any member can exempt itself from the consequences of a decision by registering an objection to it within a specified time period - initially 90 days from the date of the promulgation of the decision by the Secretary, with a possible extension in certain circumstances of a further 90 days. (The extension is provided so that if one or more members object in the first 90 days the other members can reconsider their original decision not to object). The objection procedure has been invoked from time to time throughout the history of the IWC by almost every whaling nation. Objections may be withdrawn, but objections to existing decisions cannot be lodged by new adherents to the Convention - or by states that have left the IWC and then rejoined it. All commercial whaling countries initially objected to the 1982 moratorium decision, except Spain, Chile and Iceland. (In the case of Iceland its parliament overturned, by a majority of one vote, the decision by the government to object). All but Norway and the former USSR, now Russia, have since withdrawn their objections. Norway also objected to the 1985 decision by the IWC, based on scientific evidence from the scientific committee, to protect the minke whales of the North East Adantic (ie to set a specific zero catch limit for them even before the moratorium decision came into effect). Relying on those two objections Norway resumed commercial whaling in the summer of 1993, and promulgated domestic regulations which were claimed to be in line with the IWC's regional management procedure (RMP) but in fact are not. It should be noted that the whales exploited by Norway are the same animals which at other seasons are migrating through the waters of a number of other coastal states of the North Atlantic, all of them members of the IWC and vigorously opposed to Norway's action. Most recently the objection procedure has been used by Japan to override, for its own nationals, the 1994 southern ocean sanctuary declaration. (Russia has also objected, but it is thought, at the time of writing, that this objection was made for technical reasons and may soon be withdrawn. If it is not, and because Russia maintains its objection to the moratorium, Russia, while remaining a member of the IWC, could legally resume Antarctic whaling despite the fact that the IWC catch limit there is zero for all species, and will remain so even if the moratorium is lifted in the future). Japan's objection does not, however, mean it can resume commercial whaling now, the reason being that it withdrew its objection to the moratorium some years ago. Another loophole is that member states may kill as many animals as they wish of any species at any time by issuing themselves special permits for scientific research. Under present rules they merely have to inform the IWC in advance and receive comments, particularly from its scientific committee. But the issuing state is under no obligation to take notice of those comments, and the history of the use and abuse of this provision shows that they rarely do so, though recently certain states - in particular Japan - have made cosmetic changes to their programmes following criticism of them. At present both Japan and Norway are killing large numbers of minke whales every year by reason of this loophole. The 1946 convention provides that the products from scientific whales must not be wasted. In practice this has been taken to imply that they should or could be marketed commercially, yet that has been the almost universal practice. It has even been argued by agencies of certain members that the products must be sold to pay for the research! The 1946 convention makes no provision for seriously monitoring the implementation of such regulations as may be in force at any time; states are simply 30

A Guardian as Monitor required to report infractions each year by their own nationals. Such infractions are rarely punished in any substantial way by the authorities concerned, and most undoubtedly remain unreported. In the years when competitive whaling by about five states in the Antarctic led to agreements, outside the IWC, on how to divide up the global quotas among them, it became important that none of the whaling states be permitted to cheat. The convention provides for national inspectors on all ships, but it was well-known that their reports were frequently unreliable; very early on scientists detected adjustments of data. Thus, for mutual protection of those engaged in the Antarctic whaling, negotiations were begun to create an International Observer Scheme (IOS). At first the intention was to appoint independent IWC observers, to be paid through special subventions to the commission. This fell through and instead the scheme involved exchanges of inspectors between the whalers; by the time the negotiations were complete (they took ten years) only the USSR and Japan were left in the business, and they simply exchanged observers who bore a virtually meaningless IWC badge of authority. These observers regularly submitted bland reports to the IWC, which were duly noted. Whaling from coastal stations has always been less rigorously regulated than the pelagic whaling by factory ships and accompanying catcher boats. Even national inspections have been less than rigorous - often one inspector would be assigned to two or more stations, between which he travelled, part-time. Nevertheless, the IOS was eventually extended in principle to coastal operations, but few of them were actually monitored in this way, and then only when a non-whaling country was prepared to cover the expenses of the observers it assigned to the station of another country. In 1993 the Russian authorities revealed that they had detected falsification of data submitted to the IWC by the USSR, on a huge scale. Very large numbers of protected species had been taken in the Antarctic over a number of years, the numbers of unprotected species actually killed bore no relation to the numbers reported or to the catch regulations in force at the time. In fact, the catch data provided to the IWC were essentially worthless. (Real statistics are now being reconstructed by the Russian authorities, mainly from the records of scientists who were aboard the vessels). An interesting further revelation at the 1994 meeting of the IWC was that some of the falsification occurred during years when the IOS was in force and there were Japanese/IW C observers aboard. Scientists have described how this was done - not necessarily with the collusion of the international inspectors, but that cannot be ruled out. There were never sufficient inspectors to undertake full 24-hour watches on all vessels for a prolonged period at sea; and there was an abundance of vodka aboard. The US-based public relations agency that the government of Japan uses for its pro-whaling propaganda has repeatedly stated that all these revelations are false, being inventions of closet conservationists. However, there is no doubt of their authenticity which the IWC itself has now accepted. Since the revelations were first announced the US government has given technical help to the Russian government in its efforts to reconstruct some of the original records that have been located. Other member governments have been remarkably silent, but some non-governmental organizations have also been helping the Russian scientists engaged in that task. The IOS was never applied to Norwegian coastal whaling, and the vessels were always said to be too small to accomodate even national inspectors. Thus such inspections as there were took place from shore, and then not from all landing 31

Part 2: State Responsibilities locations. In the 1980s it was revealed - again by the scientists - that catches were being under-reported by up to 33 per cent. Whales were being landed at unauthorised locations and disposed of quickly some inspectors were corrupt and others were intimidated. The Norwegian authorities have also been notably lax in enforcing even their own self-imposed temporary ban on the export of whale products from the recent scientific and objection catches. Another weakness in the 1946 convention concerns the full utilization of carcasses. This is mandated for scientific permit catches but not for commercial catches. In the early days of Antarctic whaling only oil and a few valuable by­ products were extracted and retained; the meat was thrown away or converted to meal. Now, in the Norwegian coastal fishery (in which whales are processed at sea) only the meat is retained and the rest of the carcass is abandoned at sea. This practice is followed for purely economic reasons, not because there is no market for the other products; it is simply not cost-effective to invest in somewhat larger vessels capable of processing the rest of the carcass for oil, etc. The IWC is unable to do anything to ensure complete use of the caught animals. One final weakness - and a very important one - is that there is no agreed definition of what is a whale (nor for that matter, of what is whaling). In practice the only species of cetaceans that the IWC treats as whales are those regarding which there is complete consensus among members; thus any member has an effective veto over regulation of its hunting of disputed species. Since the UN Conference on the Human Environment in Stockholm, 1972, there have been many attempts to amend this situation. All but one have failed - Orca, the killer whale, is now treated as a legal whale and hence covered by the moratorium and southern ocean sanctuary decision, among other things. The array of loopholes and weaknesses in the 1946 convention is such as severely to limit the effectiveness of the IWC, especially as a protector of the interests of future generations. One approach to improvement was much discussed in the 1970s - the renegotiation of the convention, or its amendment by unanimous adoption of a protocol (the convention does not contain any provision for a direct means of amendment). However, it quickly became evident, after three diplomatic conferences, that the political conditions did not exist for success in such an endeavour. Nor, it seems, do they exist now. Thus some attention has been given, but entirely informally, to the option of resort to a higher authority - presumably the United Nations, or one of its organs. When Iceland withdrew from the IWC, having failed to lodge an objection to the 1982 decision and to persuade the commission to lift the moratorium when it came up for review in 1990, the authorities sought to make a legalistic interpretation of the 1982 decision under which it would lapse in 1990 instead of continuing until modified by another three-quarters vote. They failed to convince others. (Interestingly a version of this mistaken view persists in the minds of journalists and others that the moratorium lapses unless it is specifically renewed each year). However, Iceland joined with Norway and, with two territories that are not states - Faroe Islands and Greenland - formed a new body, the North Atlantic Marine Mammals Commission (NAMMCO). This was intended to replace the IWC in this region, as far as those countries were concerned. However, Norway has refused to agree to setting catch limits for minke whales under NAMMCO, preferring to work within the IWC while, by virtue of its objections, being completely free to act. If NAMMCO does anything it might regulate hunting of whales of interest to some of its members - notably the Faroes and Greenland - which are not recognized as 32

A Guardian as Monitor such by the IWC: particularly pilot whales, beluga and narwhal. Under the NAMMCO agreement any such regulation must be decided by consensus. Both Iceland and Norway claim that NAMMCO is a possible alternative to the IWC in this region. This is where the failure of UNCLS to define appropriate international (regional) organizations is critical. NAMMCO is not freely open to membership by other North Atlantic coastal states, except by agreement of all its existing members. They have attempted to interest selected states that they considered might be favourable to their policies - Canada, Denmark, Russia - in joining but failed to do so. It seems to me - as a non-lawyer - that an organization which purports to be a regional regulatory body, that is not freely open to membership by all coastal states of that region, should not be acceptable as an appropriate regional organ in the context of UNCLS. Then, there is the matter of dealing practically with the objection loophole. There is an interesting precedent in US domestic law. For many years the US has sought to strengthen the IWC by providing for unilateral economic sanctions against countries judged to be diminishing the effectiveness of the IWC. That is clearly applicable to non-IWC countries that engage in commercial whaling. But countries such as Norway that whale under objections have also been defined by the US administration as diminishing the effectiveness of the IWC: whether sanctions are actually applied is ultimately at the discretion of the president of the USA and, at least in the case of Norway, have never been applied in practice, because the US government has other overriding interests in peaceful relations with that country. Perhaps here there is a glimmer of a role for a future guardian in at least bringing to the attention of a higher authority - the UN or other appropriate organ - the fact that a state, while acting strictly legally, may be undermining a treaty that is intended to serve, among other purposes, the interests of future generations in certain marine living resources. In the case of the IWC this might be especially appropriate since the 1946 convention is one of the only existing resource management conventions which explicitly refers to the perceived interests of future generations. A corresponding role might be fulfilled by a guardian with respect to large-scale whaling under scientific permits. Objective review by the scientific committee has always failed because the scientists from the country intending to award the permits, and from allied countries, naturally support their governments. If, however, these situations came to the attention of a neutral guardian, then that office could arrange a truly independent scientific review. Although that review process would have no executive force it could perhaps provide a lever by which states could be constrained (more than hitherto) not to abuse the scientific permits provision in the convention. The concept of 'diminishing the effectiveness' of an existing convention might be internationalised, and extended to other conventions than that under which the IWC operates, and even to the UNCLS itself. Naturally, a guardian would be expected to draw the attention of the authority to illegal operations of any subsidiary or lower level treaty organization, but further, might become active when it is perceived that while such a body might be acting legally in a strict sense, it is nevertheless acting in such a way as to diminish the (overall) effectiveness of UNCLS. Such action could arise from a systematic process of strict monitoring of the operations of the lower level bodies. In this context the guardian would be expected to examine any new organization established under bilateral or multilateral agreement that claimed to be appropriate in terms of the spirit and specific provisions of UNCLS. That organization's membership, and its operating 33

Part 2: State Responsibilities rules (whether they are equitable; based on adequate science, and so on) would be included among the subjects of the monitoring mandate. I mentioned earlier the weaknesses of scientific knowledge for meeting the formal requirements of UNCLS and Agenda 21 for sustainable use. The continuing weakness of such knowledge, in the case of the whales, despite substantial research efforts, has led IWC scientists to examine another approach to the usual one of finding as many facts as possible about the biological characterisitcs of the resource. This is not the place to describe this study in detail, but its salient features are important for this discussion. The procedure followed has been to create artificial whale populations as computer models and, by computer simulation to test the degree to which any particular rule for, say, setting an annual catch limit, leads to specified desired results. The rule can be changed by its creator without restraint; the only test is its performance - whether it works. Such rules were developed competitively by several teams of scientists; objective tests were devised to rank their efforts, and the best selected for adoption by the IWC as its RMP. There are two essential requirements: (1)

(2)

The rule must perform adequately (there can be no conceivable optimal or perfect rule) - be robust, in technical jargon - whatever the structure, within reasonable limits, of the population model that provides the data to which the rule is experimentally applied. Inventing alternative models is a creative exercise, bounded only by the biologically possible options. The measures of performance to be tested must correspond quantitatively with specified objectives. This requirement forces the regulatory authority to specify clearly and unambiguously those objectives, as interpretations of its statute. In the case of the IWC it must provide for an appropriate balance between any currently permitted catches, and total catches over the very long term (an arbitrary 100 years). At the end of the simulated period the stock must be left in an acceptable state - in this case it must be at no less than about three-quarters of its original (pre-exploitation) number of whales. No stock that might be less than a certain fraction of its original number can be exploited until it has recovered - specifically less than about half the original number.

A further requirement is that the rule will perform well under changing environmental conditions, such as a deterioration of habitat quality, and annual fluctuations. Its performance must not depend critically on any assumption of accuracy in survey methods. Then, a precautionary principle must apply: in this case, that permitted catches remain at zero unless determined otherwise; and conservative, not best, estimates of stock condition must be used. If such rules are properly applied and honoured there is very considerable protection of the likely interests of future generations. With the realization of past failures and abuses the IWC is now turning its attention to the practical problems of the administration of the new rules, which have been agreed in principle but will not be implemented until all the other protective devices are in place. One approach is to make the rules apply almost automatically; that is, once countries have agreed to a rule, and have not lodged objections to a formal decision adopting it, then they have no further opportunity to lodge further objections to specific catch limits, be they zero or otherwise. Here it is expected that legalistic difficulties will be raised - but, until they may be settled the moratorium itself will stay in 34

A Guardian as Monitor place. In this respect at least the future generations have, for the time being, the upper hand! The scientific committee of the IWC has formulated some criteria for what would be accepted as good data for use in applying the RMP. The procedure in fact calls for very limited data: periodic estimates of the numbers of whales and of the statistical confidence limits of those estimates; and reports of both historical and recent catches, by number. The RMP is robust to certain types and degrees of error in these, though falsification of catch statistics on the scale revealed in Russia is obviously unacceptable. However, there remain serious questions about the reliability of estimates of whale numbers by the standard method of conducting systematic sighting surveys from vessels. Only this year technical questions have been raised about the method of analyzing the data from such surveys; these have led to two best estimates of the number of minke whales in the North East Atlantic which differ by more than 50 per cent, having a dramatic effect on the catch limit which would be determined if the RMP were implemented. The existence of these problems, now being investigated by the committee, has brought to the surface a practical matter with important political implications. The committee has had nothing to say about the authority under which the sighting surveys for the RMP are to be conducted; it has merely provided that the committee must express satisfaction with the results. Sighting surveys of whales in the Antarctic have been made annually for 15 years under IWC auspices: though conducted by Japanese vessels on loan (and, earlier, Soviet vessels) they have been planned and implemented, and the results analysed, by the scientific committee; thus they may be regarded as internationally valid. However, the survey in the North East Atlantic was planned, conducted, and the results analyzed by the government of Norway. The results were presented to the scientific committee, which in a weak moment accepted them without even having looked at the data or at the methods of analysis used. It is precisely those results that have now been challenged. The IWC rules do provide that the data on which survey estimates are based must be made available to the IWC. At the time the scientific committee accepted the Norwegian figures the data had not been submitted by the Norwegian authorities, though that has now been rectified. This experience suggests, however, that no survey results should be used in the making of regulations unless the surveys themselves have been planned and conducted by the regulatory authority, not by the interested government, and unless the results have been analyzed critically and responsibly by the designated international organ - in this case the IWC scientific committee. Furthermore, given the repeated carelessness by such committees of scientists representing their governments, consideration should perhaps be given to requiring that all such critical data and results are reviewed by independent peers before they are used in regulatory calculations. The most important debate yet to come is probably that over international observation/inspection arrangements. There is a clear desire to improve on the past, but an unwillingness to give away much sovereignty, or incur substantial additional costs. We are still a long way from a desirable system of authority to make spot checks, at sea or on land, to monitor the movements of boats by satellite or other means, and to monitor any movement of whale products. We do now have the technical ability to do all these things: for example a DNA profile from a sample of meat can determine not only from which species it comes but even the locality at which the animal was killed. But there is no international, nor even 35

Part 2: State Responsibilities national system, by which these techniques are routinely applied. Such surveillance as there has been so far has been funded and conducted, under cover, by non­ governmental investigating organizations. The operation of future, official surveillance systems is something that a guardian might be mandated to monitor. These matters, now under investigation and development by the IWC or related to whaling, are common to other fishing operation and open to the same approaches for their resolution. I have given only an illustrative sketch of the role a guardian might be called upon to play. It deals with the spirit of international law as well as with the letter of the law; with discrepancies between, as well as consistencies among different sectors of the existing body of relevant law, as well as among and between different instruments of international cooperation. I conclude with a quotation - the closing paragraph - from an address given on 26 November, 1946 by the representative of the US Department of the Interior to the delegates to the International Whaling Conference in Washington, which adopted the 1946 Convention: "Conservation is one o f the truest symbols o f mankind's hope. No one without conviction o f a peaceful and more happy fu tu re fo r mankind would spend time and thought and energy in trying to provide fo r fu tu re generations. So, we pay tribute to you who are here to write another chapter in the history o f conservation. I hope that we will apply in other fields the same principles which have guided you in your deliberations."

Evidently, the intention was good and strong. As we have seen, the performance was almost fatally weak. But perhaps not irretrievably so.

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PART 3

Future Generations as a Su b ject of International Law

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5

A COMMENTARY ON THE STATUS OF FUTURE GENERATIONS AS A SUBJECT OF INTERNATIONAL LAW Ajai Malhotra

The classical definition of international law, generally accepted as recently as five d ecades ago, denoted a body of rules or principles considered legally binding by states in their intercourse w ith each other. Since international law applied only betw een entities that could claim international personality, su ch a definition presum ed that only states could function on the international plane and only they p ossessed the rights and duties that w ere recognized by international law. If an entity could enjoy such rights and duties it w as regarded as a subject of international law, w hereas if it did n ot possess such an international personality it w as not regarded as an object of international law. W hile it is considered that only states have the totality of rights and duties recognized by international law they are no longer view ed as its exclusive subjects.

THE EMERGENCE OF OTHER SUBJECTS OF INTERNATIONAL LAW In its A dvisory Opinion given in 1949 in the Reparation for Injuries Suffered in the Service o f the United Nations case, the International C ourt of Justice (ICJ), inter alia, reached the conclusion that the United Nations O rganization w as an international person, thus "a subject of international law, and capable of possessing international rights and duties and that it has the capacity to m aintain its rights by bringing international c la im s".1 The im p ortance of that A dvisory O pinion w as that it established that other entities too, besides states, could be subjects of international law. M oreover, it also settled that not only w ere states not the sole subjects of international law but that they, in principle, could through agreem ent am on g them selves bring into existence new subjects of international law, possessing either full or limited international personality.

Part 3 : Future Generations as a Subject The rapid evolution of the international law of human rights, especially since the end of the Second World War and the adoption of the United Nations Charter, also significantly altered the nature of international law, imbuing it with new content. The unanimous adoption by the UN General Assembly in 1948 of the Universal Declaration of Human Rights gave the world its first universal charter of human rights. It was subsequently elaborated and developed through the adoption by the UN General Assembly in 1966 of two international covenants the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights - which together embody rights belonging to every human being and which derive from the inherent dignity of the individual. The Universal Declaration of Human Rights also inspired a wide range of international conventions whose subject matter has primarily been the human rights of the individual. By reaching out vertically to individual human beings and recognizing that they too possess rights, the coverage of international law has notably expanded from its earlier traditional position in which it was almost purely horizontal in character and exclusively governed relations between states.2 Beyond the rights of individuals, certain collective rights were also included in the two international covenants, for example, trade union rights, the rights of minority groups, and, in view of the decolonization process then underway, the right of all peoples to self determination.3 Since then, there have been instances where other collective rights have also been increasingly recognized, for example, through the 1986 UN General Assembly Resolution and Declaration on the Right to Development. More recently, the Vienna Declaration and Programme o f Action adopted by the World Conference on Human Rights held in June 1993 reaffirmed "the right to development... as a universal and inalienable right and an integral part of fundamental human rights".4 It has also been contended that mankind as a whole (ie the entire human species, including present and future generations) is now emerging as a new subject holding rights under international law, particularly as a result of the inclusion of the term mankind and its interchangeable usage with present and future generations in international treaties.^ In this context it is also noteworthy that there are international agreements which cover areas beyond national jurisdiction and draw upon the common heritage of mankind principle (eg, the UN Convention on the Law o f the Sea as regards sea bed resources in areas beyond national jurisdiction, and the 1979 Agreement Governing the Activities o f States on the Moon and other Celestial Bodies). Given the fundamental manner in which the range of subjects of international law has grown it has even been suggested that the very term international law (jus inter gentes) is a misnomer for a legal order that should now be called world law.6 It is against this background, noting the directions being taken by the expansion in the subjects of international law, that the status of future generations under international law could be examined.

DEFINING FUTURE GENERATIONS An issue that arises in exploring the status of future generations under international law relates to the problem of satisfactorily defining future generations. Different meanings have been assigned to the term in common usage. For example, some (loosely) regard children among the present generation as being included in future 40

The Status o f Future Generations generations, w hile others only consider those w ho w ould follow the present o r living generation to con stitute future generations. A stan d ard ized u sage o r understanding of the term is yet to be widely applied and w ould be desirable.

A generation could be loosely described as a body of individuals or a set of persons bom at about the same time. While no established practice exists in this regard, a generation has usually been computed as covering a 25 or 30 year period. Given that individuals do not live for identical time periods, the numerical size of a generation can often only be guessed, with the accuracy of such estimates declining as far as generations more distant from the present are concerned. The inherent uncertainty of the future adds to the complexity of this task. Moreover, a clear demarcation does not exist between one generation and the next. Accordingly, if one were to try and project each future generation as a distinct and separate entity, then an individual could often be classified simultaneously as a member of several overlapping generations on a time-scale. Complications arise in considering discrete future generations since the present generation, its successor, as well as, in turn, every following generation constitute a continuum in generations, and it is well nigh impossible to separate specific collective persons from such a continuum.7 From a legal standpoint considerable clarity would be achieved if the term future generations was considered to represent a collectivity ad infinitum of all human beings who succeed the present or living generation. In contra-distinction, models for economic analysis have used overlapping yet discrete future generations (for example, for considering resource allocation between generations).

RESPONSIBILITY TO FUTURE GENERATIONS AND THEIR RIGHTS Concern over future generations has been increasingly reflected in recent years in bilateral and multilateral agreements, declarations and resolutions. In many cases the reference in such documents has been explicitly to present and future generations, and not to future generations alone. These texts have also largely made such references in the context of declaring a responsibility towards future generations. Most of these references are to be found in the introductory or hortatory sections of such documents (for example, through mention of future generations in preambular paragraphs) rather than in their operative portions. All the same there is no doubt that a responsibility towards future generations does exist and this is reflected in the number of international agreements and treaties that are path-breaking or visionary in their conception. While future generations are not considered to be identifiable individuals until they come into existence, their basic interests can be identified and this provides sufficient grounds for our accepting that they deserve our moral consideration.8 The question, however, arises whether future generations possess rights. Rights have traditionally been extended to identifiable individuals and would thus not apply to future generations since they are yet unborn and consist of unidentifiable individuals. There are, however, three points that may be of interest in this regard. Firstly, many legal systems on the national plane do provide, for example, for laws of inheritance that accept persons not yet bom as being beneficiaries. Secondly, while the similarity between future generations, which do not yet exist, with those existing but legally incompetent is certainly arguable,9 legal systems do confer 41

Part 3: Future Generations as a Subject rights on human beings who are incapable of regarding themselves as bearers of rights,10 for example, infants and those severely mentally disabled. Thirdly, if one considers the international plane, then the very widely ratified UN Convention on the Rights o f the Child provides certain points of interest. It defines a child as "every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier". The convention puts an upper age limit on who can be regarded as a child under it, but deliberately avoids setting a floor. The reason for this is probably to avoid contentious pro- and anti-abortion positions. While the convention does not, in its operative portion, extend specific rights to the unborn child it does contain a preambular reference to the Declaration on the Rights o f the Child which it quotes to the effect that".. .the child... needs special safeguards and care ... before as well as after birth". Furthermore, though rights under the convention are assigned to those not specified with full precision, states have found it expedient to accept such lack of clarity in light of a larger interest (namely, that of securing agreement on rights relating to the survival, protection and development of the child). Despite the above, the rights of future generations could probably be much more effectively presented as collective rights, or rights belonging to a generation in its entirety, and not as individual rights. If so, it would not be necessary to know the specific individuals constituting future generations, or even their numerical strength.11 Where collective rights are concerned, a thought-provoking exception is that rights have been assigned under international law even to undefined and essentially undefinable groups, for example, to peoples vide Article 1 of both the human rights covenants. While such examples show that possibilities may exist, documents at the international level have not regarded the collectivity of future generations as being a legal entity and therefore possessing rights and thus capable of preferring claims (or having claims preferred on their behalf) which could be exercized against those who infringe or violate their rights. The reasons for this range from the clear reluctance of most states to do so, to legal, jurisdictional and other problems associated with assigning future generations with specific legal rights. Future generations cannot presently be regarded stricto sensu as a subject of international law; yet, given the rapid evolution of international law in recent decades, the possibility remains that they may well acquire such recognition at some future stage. Irrespective of whether future generations presently possess specific legal rights under international law or not, there exists an indisputable responsibility towards them. Accordingly, it would be desirable for the present focus of attention to be on responsibilities towards future generations, rather than their rights.

FUTURE GENERATIONS, ENVIRONMENT AND DEVELOPMENT Policies, actions and even omissions of the present generation can impinge on future generations in a large number of varied areas. Long term intergenerational consequences, for example, arise in diverse fields ranging from those affecting basic needs (such as health, nutrition, education), to nuclear weapons and their testing, to space exploration, to scientific research and development of new technologies, to culture, and to environmental quality and access, to name but a few. 42

The Status o f Future Generations Responsibilities of the present generation towards future ones accordingly arise in all these areas. While responsible behaviour by the present generation is as important in such fields, the area where concern over and responsibilities towards future generations have been most widely addressed in recent years is that of the environment, natural resources and sustainable development. Over the last decade or so it has been widely accepted that, for the first time in the history of humankind, human activity has the potential to irreversibly alter our world on a massive scale. This concern was well brought out in the context of future generations by the following inclusion in the Brundtland report: "M any present efforts to g u a rd and maintain hum an progress, to meet hum an needs, and to realize hum an ambitions are sim ply unsustainable - in both the rich a nd poor nations. They draw too heavily, too quickly, on already overdraw n environm ental resource accounts to be affordable fa r into the fu tu re without bankrupting those accounts. They may show profits on the balance sheets o f o u r generation, but o u r children will inherit the losses. We borrow environm ental capital fro m fu tu r e generations with no intention or prospect o f repaying. They may damn us fo r o ur spendthrift ways, but they can never collect on o ur debt to them. We act

as w e do because we can get away with it: fu tu re generations do not vote, they have no political or financial power; they cannot challenge o ur decisions. But the results o f the present profligacy are rapidly closing the options fo r fu tu r e generations.

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It is now widely acknowledged that global environmental issues and (linked) developmental issues are a matter of common concern since damage to the environment could ultimately affect all - nations and individuals, rich and poor, present and future generations. Accordingly, it is not surprising that international cooperation in the field of environment has received a strong impetus in recent years, with a concerted multilateral approach being pursued where global environmental issues are concerned. Environmental protection, pollution control and a whole range of other environmental and linked developmental measures agreed to at the international level and being pursued now by and within states also contribute towards fulfilling responsibilities towards future generations. Some of the recently negotiated multilateral agreements (for example, the Montreal Protocol on Substances that Deplete the Ozone Layer (1987) and its London Amendments (1990), the Framework Convention on Climate Change (1992)) could, in fact, be viewed as being less a response to harmful events affecting the present as addressing primarily a future related concern the tackling of which required early conscious adoption of precautionary corrective measures on a global scale.

The UN Conference on Environment and Development The convening of the UN Conference on Environment and Development (UNCED) in Rio de Janeiro from 3-14 June 1992 is of particular interest in this regard, in view of the implications of its outcome for both present and future generations. While the Stockholm Conference on the Human Environment (1972) initiated global awareness about environmental issues, UNCED affirmed the importance of the twin issues of environment and development being addressed in a balanced and comprehensive manner. Although references to future generations, the principle of common heritage of mankind and the guiding principle of common concern of mankind, etc., did come up on several occasions during discussions in the UNCED preparatory process, the outcome of that conference as well as the two conventions 43

Part 3: Future Generations as a Subject opened for signature during it did not result in those terms acquiring new legal connotations.

Agenda 21 Perhaps the most important operational output of UNCED was the agreement reached on Agenda 21 - a detailed programme of action addressing all major areas affecting the relationship between the environment and the economy. With a focus extending into the 21st Century, it reflects a global concern for integrating environmental concerns into an accelerated development process. Agenda 21 is not legally binding, yet its endorsement by 180 countries, of which over 100 were represented at Rio at the level of head of state or government, clearly reflects the importance assigned to it by the global community and the high level political commitment to its contents. The overall focus and sense of direction of Agenda 21 is provided by its carefully negotiated preamble, which constitutes the first of its 40 chapters. The preamble specifies the integration of environment and development concerns and that the devotion of greater attention to them will lead to the fulfilment of basic needs, improved living standards for all, better protected and managed ecosystems and a safer, more prosperous future. It emphasizes that nations acting alone cannot achieve this objective but can do so through a global partnership that builds upon the premises of the United Nations General Assembly (UNGA) Resolution 44/228 of 22 December 1989 and the acceptance of the need for a balanced and integrated approach to environment and development. While stressing that the successful implementation of Agenda 21 is first and foremost the responsibility of governments, the Preamble unambiguously states that international cooperation should support and supplement rather than seek to supplant national efforts. The Preamble makes clear that Agenda 21 is a dynamic programme that could evolve over time in the light of changing needs and circumstances and that it will be carried out by the various actors according to the different situations, capacities and priorities of countries and regions. These inclusions, which provide the necessary flexibility, also allow for a subsequent review of Agenda 21 and are important since Agenda 21 addresses not only the pressing problems of the day but also aims at preparing the world for the challenges of the next century.

The Commission on Sustainable Development As a result of UNCED, a 52 member United Nations Commission on Sustainable Development (UNCSD) was established and has begun its challenging task in pursuing the implementation of UNCED recommendations and seeing to it that Agenda 21 does not remain a programme of action on paper alone. While two substantive sessions of the Commission on Sustainable Development have already been held, lack of sufficient financial resources continues to handicap the fulfilment of the objectives of Agenda 21. Interestingly, the term sustainable development, though widely used, was not defined in Agenda 21 or the other texts emerging from UNCED. However, despite its ambiguity, the meaning of sustainable development can be distilled in many instances from the context in which the term is used as the link between environment and development - the twin concerns of UNCED. For example, Principle 4 of the Rio Declaration on Environment and Development notes that "in order to achieve sustainable development, environmental protection shall constitute 44

The Status o f Future Generations an integral part of the development process and cannot be considered in isolation from it". The essence of the concept of sustainable development lies in the process of improvement of the quality of human life, doing so within the carrying capacity of supporting ecosystems. Or, as the report of the World Commission on Environment and Development put it, sustainable development is "a strategy of development which meets the needs of the present without compromising the ability of future generations to meet their own needs".13 While the prime focus of the concept of sustainable development is on development and thus on a developmental strategy which meets the needs of the present, the qualification sustainable adds an important aspect of also taking into account implications of present policies and actions for the future and thus for future generations. The very establishment of UNCSD could be regarded, inter alia, as an acknowledgement by states of the need for responsible behaviour towards not only the present but also future generations. Moreover, UNCSD is both present and future oriented, taking into account several concerns of future generation in the sphere of environment and development, besides addressing those of the present generation.

Rio Declaration on Environment and Development The Rio Declaration on Environment and Development, which like Agenda 21 is not legally binding, consists of 27 principles meant to govern the environmental and economic behaviour of peoples and nations. One of these principles states that "the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations" (Principle 3). Beyond this reference, the Rio Declaration, however, does not mention future generations or single them out as a group, even though it devotes separate principles to other collectivities such as women (Principle 20), youth (Principle 21), indigenous people and their communities (Principle 22) and even people under oppression, domination and occupation (Principle 23).

Forestry The intense debate over the forestry issue, resulted in UNCED adopting a nonlegally binding yet authoritative statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development o f All Types o f Forests. This document is deliberately not based on a common heritage approach to forests, since forests fall within national jurisdictions. The statement instead declares that states have the sovereign and inalienable right to utilize, manage and develop their forests, in accordance with their own development needs and socioeconomic development level. All countries, especially developed countries, are urged to take action towards reforestation, afforestation and forest conservation. As per paragraph 2(b) of the principles/elements contained in the statement, forest resources and forest lands are to be sustainably managed so as to meet the social, economic, ecological, cultural and spiritual needs of both present and future generations for products and services such as wood, water, food, fodder, medicine, fuel, shelter, employment, recreation, wildlife habitats, landscape diversity, carbon reservoirs, and for other forest products.14 This is the sole reference to future generations contained in that text.

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Part 3: Future Generations as a Subject

The Convention on Biological Diversity The Convention on Biological Diversity (1992) identifies three major objectives, namely, the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising out of the utilization of genetic resources. For the first time, the true value of biological resources is recognized, leading to the further acceptance that the benefits from the utilization of such resources must be equitably shared with those who have conserved them at considerable opportunity cost. The convention fully recognizes and reaffirms the sovereign rights of states over their natural resources and bases itself upon the idea of global partnership rather than the common heritage approach. The convention also deliberately avoids all references to global lists (an approach used, for example, for the protection of cultural and natural heritage sites and biosphere reserves) whether of biogeographic areas of special significance or of species threatened with extinction. At the same time, the convention affirms in its preambulatory paragraphs that the conservation of biological diversity is a "common concern of humankind" and expresses the determination of contracting parties to conserve and sustainably use biological diversity for the benefit of present and future generations. A reference to future generations can also be found in the meaning assigned under Article 2 of the convention to the use in it of the term sustainable development.

The Framework Convention on Climate change The Framework Convention on Climate Change (1992) also reflects in its preambular portion a determination to protect the climate system for present and future generations. Moreover, its Article 3 identifies five principles that shall, inter alia, guide parties to the convention in their actions to achieve the objectives of the convention and to implement its provisions. The first of these requires that the parties should protect the climate system for the benefit of present and future generations of humankind on the basis of equity, and, in accordance with their common but differentiated responsibilities and respective capabilities. It adds that, accordingly, developed country parties should take the lead in combatting climate change and the adverse effects thereof.

INTERGENERATIONAL AND INTRAGENERATIONAL EQUITY Among priority areas suggested for progressive development of international environmental law in the context of the UN Decade o f International Law (1990-1999) have been "the progressive refinement of the concept of the right to development" as well as "the development of the evolving concept of the right of all to a life of dignity and adequate standard of living in a clean, safe and healthy environ­ ment".15 Subsequently, echoing the Rio Declaration on Environment and Development, the Vienna Declaration and Programme o f Action adopted by the World Conference on Human Rights has stipulated that "the right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations".16 International environmental law has also broken relatively new grounds with concepts such as intergenerational equity that relate to future generations and present a definitional challenge.

46

The Status o f Future Generations Drawing upon the notion of equality, the theory of intergenerational equity bases itself upon the understanding that all are entitled to a certain level of quality and access in environmental terms.17 It has thus been presented as not only calling for equality among generations and among members of a generation, but as also having an important intragenerational dimension by which "all members of the present generation have an equal right to use and benefit from the planet".18 To combine deep concern for the welfare of future generations with complete disregard for the state of today's world and the plight of its poor has been regarded as not only somewhat inconsistent but even "faintly phony".19 Massive inequities persisting within the present generation in both economic and lifestyle terms cannot be ignored, except to the detriment of both present and future generations. It is, for example, estimated that 25 per cent of the world's population who are rich, consume 85 per cent of its wealth and produce 90 per cent of its waste.20 In this context, Agenda 21 has emphasized that the eradication of poverty and hunger, greater equity in income distribution, and the development of human resources are major challenges on which all countries must cooperate and share responsibility. This was also well recognized in Principle 5 of the Rio Declaration on Environment and Development which states that: "All states and all people shall cooperate in the essential task o f eradicating poverty as an indispensable requirement fo r sustainable development, in order to decrease the disparities in standards o f living and better meet the needs o f the majority o f the people o f the world".

It is also noteworthy that many environmental and developmental measures that are desirable and should be adopted vis-a-vis present generations also simultaneously serve basic interests and meet important concerns of future generations. Furthermore, Agenda 21 acknowledged that while poverty results in certain kinds of environmental stress, the major cause of the continued deterioration of the global environment is the unsustainable patterns of consumption and production, particularly in industrialized countries. A reflection of this was also contained in the Rio Declaration, Principle 7 of which, inter alia, mentions that: "In view o f the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit o f sustainable development in view o f the pressures their societies place on the global environment and o f the technologies and financial resources they com m and ."

Moreover, Principle 8 of the Rio Declaration points out that: "To achieve sustainble development and a higher quality o f life fo r all people, states should reduce and eliminate unsustainable patterns o f production and consumption and promote appropriate demographic policies”.

The funding and technology transfer provisions of the agreements reached at UNCED also require fulfilment so that intragenerational equity can be achieved. Poverty eradication, the modification of excessive and unsustainable consumption and production patterns, and the sharing of environmentally sound roots that promote intragenerational equity, contribute in turn to sustainable development while meeting some of the major concerns of future generations. 47

Part 3 : Future Generations as a Subject Behaving responsibly now towards present generations is not only not contradictory with but it also constitutes an important contribution to behaving responsibly towards future generations. Addressing present generation concerns and identifiable basic interests of future generations requires a mix that promotes sustainable development and intragenerational equity while underscoring intergenerational responsibility by, inter alia, taking into account the implications of present and proposed actions and policies for future generations.

THE ROAD FROM RIO UNCED started a process of continuing consideration and action in the fields of environment and development, making the road from Rio probably more important than the one that led to it. Besides the establishment of UNCSD, understandings reached during UNCED have led to international agreements over issues such as combating desertification (of particular interest since it affects a sixth of the population and a quarter of the land area of our planet), the sustainable development of small island developing states (which are particularly vulnerable to climate change and its potential consequences, such as sea level rise), and straddling fish stocks and highly migratory fish stocks (of importance also in view of the overfishing by some states of such stocks straddling the high seas and Economic Exclusion Zones (EEZ's). The Convention on Biological Diversity and the Framework Convention on Climate Change have come into force and the first session of the Conference of Parties of these conventions have been held. In June 1997 the UN General Assembly convened a special session in New York to review the implementation of Agenda 21. Popularly known as the 'Rio+5' Summit, it has sought to follow up on UNCED and to rekindle the Rio Spirit. While the five years since UNCED have witnessed heightened awareness of environmental issues, progress in tackling environmental and linked developmental issues has been laconic and limited. Nevertheless, environmental and linked developmental concerns have increasingly become the focus of international attention. UNCED and the establishment of UNCSD, have also contributed to environmental consciousness and concerns becoming a part of the mainstream of developmental concerns. This holds out a degree of hope for both present and future generations.

TOWARDS A GUARDIAN FOR FUTURE GENERATIONS? At the fourth session of the UNCSD preparatory committee (New York, 1992) a formal proposal21 was unsuccessfully put forward for the establishment of an office of a guardian to represent the interests of future generations. Suggestions floated at various stages including that an office of guardian for future generations be set up under the UN, that the UN or the UNCSD serve as the guardian for future generations, that an international ombudsman be appointed, that distinct guardians for distinct objects be considered. Certain general considerations arise that are of relevance to many such proposals for a guardian, and these may need careful scrutiny. Firstly, should a guardian's mandate be limited to issues relating only to environmental quality and access, ignoring other areas where too important responsibilities to future generations 48

The Status o f Future Generations exist? Secondly, should future generations of non-human beings be covered? Thirdly, to what extent can interests, choices and tastes of future generations be gauged given that technological capacities will certainly change, probably at a faster pace than at present, and what seems now like a good decision in favour of a future generation may subsequently turn out to be irrelevant or even ill considered, particularly where the more distant future is concerned? Fourthly which constituency would a guardian represent if there is a conflict of interests between different future generations? Fifthly, given the inherent uncertainty of the future, can it be assumed that the aim of an appointed guardian for future generations would be invariably superior to that of others? The crucial issue, however, is that guardianship under most national legal systems connotes a legal custodial arrangement involving legal responsibilities, and not merely an independent proxy voice. The legal, jurisdictional and other implications of having a formally appointed guardian for future generations at the international level would accordingly need to be thoroughly considered, in particular. In any case, a purely legalistic approach to the future generations issue would by itself not suffice and is unlikely to get far at the international level. When pursued in isolation it, moreover, inadvertently appears to project an inappropriate us versus them attitude. The unenthusiastic and sceptical reaction of many states to the proposal for the establishment of a legal guardian for future generations at the international level is likely to persist at least for the time being. Perhaps meanwhile approaches other than a legalistic one, but which serve a similar aim and do not necessarily envisage endorsement by states, may be considered. For example, an international coordinating arrangement or mechanism involving interested NGOs may be explored. It could basically serve a guardianship function without being so designated. Its primary mandate could be modest and focused, seeking to alert and sensitize decision-making authorities and others at appropriate fora to identify basic interests of present and future generations. It is hoped that the continuing dialogue and partnership that began with the Rio process would find states and other actors infused with a spirit of far-reaching global responsibility and commitment, serving the interest of the present generation and those to follow. Raising a voice for those who cannot do so for themselves is also one aspect of such a responsibility.

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6

SPEAKING WITHOUT A VOICE Boldizsar Nagy

OVERCOMING INHIBITIONS Talking about future generations is not an abstract discourse. Global warming will benefit the population of Russia, Iceland, Britain or Canada while seriously threatening Bangladesh, the Netherlands and the Maldive Islands.1 Can we treat prospective inhabitants of those countries as members of one community, the undivided future generations? Does this entity have an aggregate interest overriding the conflicting sets of interests of the inhabitants and voters of the countries affected by global warming? If that interest is assumed to exist, does this mean that it must be protected by law, including international law? Certainly that "m ust" calls for further qualification: does it refer to an existing legal obligation, or to a moral obligation without any root in substantive law presently in force? The purpose of this paper is to investigate whether future generations can already be considered as recognized subjects of international law, and if not, whether there is any doctrinal or factual obstacle preventing them from gaining the status of a subject of international law. The task is not very rewarding. A statement accepting that they are already subjects would easily be discarded as illusory; a statement denying their international legal standing would certainly trigger criticism pointing to the conservativeness of the author and a conclusion reconciling the two opposites would be received as usual legal chicanery. Nevertheless, I pledge that realism in international relations thinking should be complemented with moderate idealism, with prudent but brave innovation. Although it may not sound a pathbreaking proposal I suggest that we seek ways to cover some ground on the long and winding road which connects apology and utopia.2 Accordingly legal facts, whatever they may be in 1997 should not exclude an argument in favour of preferred changes, in this case in favour of reinforcing the legal status of future generations. As we know: "Throughout history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable".3 International legal rules and institutions are not always inspired by state practice: doctrine and scholarly opinion as well as state initiative not based on preceding

Part 3 : Future Generations as a Subject practice may engender new norms and institutions of law. The right to self determination as well as the concept of the common heritage of mankind (and Malta's role in promoting this concept at an international level) may serve as examples. Both of them emanated from the initiative of a single, or a few states, or rather states-persons, obviously contradictory to prevailing theory and state practice.4 Nevertheless, both of them gained recognition after some time. As a matter of fact in the case of the common heritage of mankind this process required a remarkably short period of only three years.

THE ISSUE OF INTERNATIONAL LEGAL PROPERTY Whether future generations have a certain degree of standing depends on the actual content of hard and soft law documents and on the legal interpretation given to the expressions found in those documents. A somewhat different issue is taken up later in this section, namely the question of whether there are meta-legal arguments which call for the expansion of the protection to be granted to the interests of future generations.

Lex Lata Provisions in Hard and Soft Law Documents

Referring to Present and Future Generations Words appearing in international agreements are supposed to have a meaning which was intentionally chosen and could not be better expressed by the use of other words. According to the well accepted rule of treaty interpretation, terms of the treaty are to be given their ordinary meaning unless the parties intended to give a special meaning.^ By now, an extremely long list of multilateral and bilateral treaties can be compiled, which all incorporate reference to future generations.7 Starting with the earliest - the Charter of the United Nations8 - which was soon followed by more specialized agreements, such as the International Convention for the Regulation of Whaling of 1946^ there is a host of documents up to the more recent examples such as the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes.10 The latter restates the fundamental idea of sustainable development in the freshwater context with the following words: "Water resources shall be managed so, that the needs o f the present generation are met without compromising the ability o f fu tu re generations to meet their needs. " n

Of the bilateral treaties the most recent example is the Treaty on Good Neighbourly Relations and Friendly Cooperation between the Republic of Hungary and the Slovak Republic, concluded on 19 May 199512, which in Article 9 states that: "The contracting parties, motivated by their interest co n cern ing care fo r the natural environm ent and preservation o f acceptable living conditions fo r fu tu re generations, shall cooperate in environm ental and nature protection, aim ing at preventing and reducing environmental pollution, especially as regards trans-frontier pollution.

"13

There is no need to review here all the soft law documents designed to safeguard the interests of future generations.14 Certainly Principle 3 of the Rio Declaration is 52

Speaking Without a Voice an apt summary of the fundamental norm, according to which: "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."15 Another document of recent origin to be mentioned here is the Draft International Covenant on Environment and Development16, which is the result of a five-year effort of an impressive number of leading experts, governmental and academic, to devise a comprehensive convention "regulating relations between humankind and nature"17 In its preamble it recognizes that: "inter-generational and intragenerational responsibility, as well as solidarity and cooperation among the peoples of the Earth, are necessary to overcome the obstacles of sustainable development", and then declares as the fourth fundamental principle18 that: "the freedom of action of each generation in regard to the environment is qualified by the needs of future generations." These excerpts express the somewhat shifting emphasis in the legal thinking concerning future generations. Whereas in the 1970s the protection of the interests of future generations was seen as a state responsibility within interstate relations, an extra duty not really interfering, much less competing, with present obligations, this 1995 covenant speaks of "peoples of the Earth" (instead of the community of states) and is loaded with the dilemma of choosing the preferred group in the intergenerational versus the intragenerational context.

Proof of the Existence of Interests Specific to Mankind and Future Generations Which Deserve Protection and are Separate From State Interests Certainly the mere fact that future generations are mentioned is not proof of the existence of interests capable of legal protection. It is also true that provisions involving future generations oscillate among different levels of obligations, moreover among different directions of constraints. In terms of obligations, earlier documents, such as the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage19 denominate the future generations as addressees, as recipients of the protected items, without explicitly deriving present behaviour from supposed future needs. More recent provisions tend to assume the needs of future generations20 but differ in the respect of whether meeting those needs is directly the task of present generations, or if only the maintenance of the potential of future generations to meet their own needs is prescribed 21 What these needs and interests may be will be discussed later. For the present we have established that hard and soft law documents not only mention future generations but also identify to a varying degree needs or interests attributed to future generations and not to other subjects of international law - which require or at least deserve protection, or if not protection then of being taken into account.

Moral, Philosophical and Religious Arguments Justifying the Strive for Identifying and Protecting those Interests Why would interests require protection? - the meta-legal question could be asked. This is not the place to investigate the general issue of law development, identifying social and intellectual factors which engender new legal norms and their acceptance, ie law abiding behaviour. It should suffice for us to briefly state that 53

Part 3: Future Generations as a Subject alternative arguments exist, favouring the protection of the interests of future generations. The first line of argument can be labelled as moral. Different constructions in ethics lead to the conclusion that future generations should be protected because of ethical considerations. Rawls may be the most frequently cited author,22 who argues that justice as fairness requires the application of the just savings principle, which is the application of the difference principle, calling for a (re)distribution of income and wealth as a result of which the more disadvantaged can improve their situation to a greater extent than the advantaged.23 Just savings relates not only to capital, "but also the knowledge and culture, as well as the techniques and skills, that make possible just institutions and the fair value of liberty."24 Accordingly, principles of intergenerational equity as the conservation of options, quality and access, the handing over of the earth in no worse condition than received25 would well be justified by Rawls' theory.26 The equality of generations lies at the heart of Wenz's dealing with this issue.27 He thinks that the formal equality of all human beings, including the future ones is the basis of their claim to equal protection.28 According to Goodin, who criticizes contractarian theories, another basis for responsibility should be chosen. He claims that the vulnerability of future generations, coupled with the moral duty not to harm is the basis of our obligation.29 The second type of argument is rather more philosophical in a broad sense, than strictly ethical. It understands the condition of humanity in a certain way, as if it were ontologically entailing concern for future generations. Care, for example, although not claiming that it already exists, suggests that a motivation accepting an extended or unbounded shared fate of humanity may serve as the basis of policy concerning the future.30 Streeten believes that: "In spite o f the logical difficulty o f justifying the continuation o f human race, we shall in the following accept Brian Barry's conviction and assert instinctively or genetically or on the basis o f a new, extended ethics, not based on benefits and harm to the interests o f people, the desirability to perpetuate it.

"31

Partridge argues that this need to perpetuate humankind is based in the human need of self transcendence.32 Something similar is the basis of Hardin's explanation who believes, that the reason for planting redwood trees with a growing time of 2000 years may not be a rational, self-serving goal but the sense which connects us to the past and thereby establishes a symmetric tie to the future.33 The third line of argument derives instruments from religions and belief systems explaining humankind's destination in the universe. Most of the universal religions as well as belief systems of indigenous peoples, such as North American Indians encompass dicta 34 according to which the present generation has a sacred or divine duty to refrain from certain acts or has to act in a prescribed way, all aimed at protecting posterity and the wholeness of life on/with earth.35 I do not think that either of the three lines of argument, or any of the specific justifications within them should be elevated to the rank of ultimate truth explaining the reason why the interests of future generations should be protected. Also, room must be left open for the attitude denying that need. This denial may be rooted in a consequent egotistical approach or in philosophical and legal problems deriving from the uncertainty of the existence of concrete future individuals.36 The purpose of this brief exercise enumerating potential ways of arguing that the protection of future generations has moral, philosophical, religious or other justifications was 54

Speaking Without a Voice to identify those various meta-legal elements which act as the motivation behind the development of international law. International lawyers and diplomats with different cultural backgrounds, visions of the world and belief systems may refuse many of them, but accept at least one, which is enough to make them a supporter of the cause of future generations.

MAINSTREAM LEGAL ANALYSIS OF THE POSSIBILITY TO RECOGNIZE THE INTERNATIONAL LEGAL PERSONALITY OF FUTURE GENERATIONS Having established that international legal texts as well as soft law documents refer to future generations in a non-fortuitous way and that good reasons, moral, religious and other call for the protection of their interests, we shall now investigate the criteria according to which mainstream international law and scholarship recognizes an entity as the bearer of rights and duties in order to determine whether international law is ready to accept future generations as recipients and further as claimants of international rights.

The Major Trends of this Century As already indicated, international law underwent a substantive expansion in the 20th Century as a result of which “unthinkable" expansions have occurred. Before World War I the international community consisted solely of states, for centuries even excluding non-Christian states from that elite club. That scenario began to change with the establishment of international governmental organizations and the codification of the laws of war, describing the rights and duties of insurgents and belligerents, in the second half of the 19th Century. The change in the legal scenery only became accepted in legal doctrine after the (ICJ) advisory opinion in the Reparations Case in 1949.37 Three characteristics of this development are discussed below: the growing number of subject categories, the enduring uncertainty surrounding the personality of some of them, and the differentiation between legal personality and capacity.

The Increasing Number of Subjects The domestic legal history of all nations has witnessed a gradual expansion of the circle of bearers of rights parallel with the expansion of the set of rights granted to the different legal subjects. Slaves, serfs, women, coloured people, indigenous people have gradually become full members of the domestic legal community, after long periods of total or partial exclusion from the group of subjects capable of legal action in their own name. More recent decades have expanded the scope of legal entitlement to such non-human entities as animals and others.38 The international legal community is undergoing a similar expansion. The difference may be that whereas in domestic law the changes usually take the form of a distinct and identifiable modification of the law, normally fixed at a given point of time39 in international legal doctrine uncertainty remains for decades with respect to certain entities (eg the Sovereign Order of Malta, Taiwan, the status of the individual) or the scope of the subject's rights (as is still the case with certain international governmental organizations). Table 6.1 provides a list of international 55

Part 3: Future Generations as a Subject Table 6.1 International L egal Subjects and the Views of Som e A uth orities40

Brownlie 1990

Oppenheim 1992

Cassese 1988

Volkerrecht 1988

+

+

+

+

States in statu nascendi

+ -

?

?

7

H oly See

+ -

+

7

+

Belligerents, Insurgents

+ -

+

+

-

In terg o v ern m en tal organ ization s

+

+

+

+

Peop le (exercising selfd eterm in ation or collective rights)

+

+ ( -)

+

+

In d igenou s p eoples

7

7

7

7

- +

7

7

—

D: + T: +

7

7

D: + T: +

The Sovereign O rd er of M alta

-

7

7

-

Taiw an, N . C yprus

?

7

7

?

In terg o v ern m en tal co rp oration s

-

- +

7

-

Transnational co rp oration s

-

7

-

-

In d ividu als

- +

+ -

+

-

H um ank in d

?

7

7

7

F u tu re generations

?

7

7

7

States

M inorities D an zig, Trieste, W. Berlin, Jeru salem

Key: + = + - = = ? =

unconditionally recognized (even if with limited scope) recognized in certain contexts or with some uncertainty denied answer unidentified

legal subjects which may not be complete, but indicates the variety of entities accepted with or without restraints to be considered as having international legal personality. The subjects do not require long explanations. Once it becomes accepted that the criteria for becoming a subject of international law is different from the criteria of statehood a potential vicious circle is broken. If defined territory, permanent population, (effective) government and the capacity to enter into relations with foreign states41 are necessary attributes of states only, but need not characterize other subjects of international law then there is no obstacle to include the last two items into the list, namely humankind and/including future generations. 56

Speaking Without a Voice

The Lasting Uncertainty Concerning the Personality o f Some Entities Obviously the expansion of the list entails disputes both in doctrine and in practice. The status of the Sovereign Order of Malta or the individual is at least arguable. However that does not exclude them from being considered to be, and treated as, subjects of law, at least in certain contexts. The fact that some states and learned scholars may deny the legal subjectivity of mankind and future generations does not prejudice their status to a larger extent than, for example, the uniform resistance of the socialist bloc to recognize the Holy See or the individual as subject of international law prejudiced their situation. Uncertainty in the sense of lack of universality is not an impediment to the regarding of future generations as subjects if other criteria are met.

The Differentiation Between Personality (Being the Bearer of Rights and Duties) and Capacity (Being in a Position to Enforce Claims) Although the terminology in international legal language is far from unequivocal and therefore "subject of international law", "international legal person" and "having international legal capacity" are frequently used interchangeably42 I suggest that two degrees of participation be distinguished. Under the generic term of "subject of international law", "legal personality" and "legal capacity" should be differentiated. The former expresses the fact that an entity is, or may be the bearer of international legal rights and duties, the latter that it is capable of acting in its own name exercizing those rights and duties. Personality without capacity is well known in domestic legal systems as well as in particular international set­ ups, as in the case of Germany between 1945 and 1949. The idea of gradation of entitlement is well accepted both by ICJ decisions and in the doctrine.43 Certainly personality in most cases implies a set of capacities and personality without direct capacity is the extreme. However even in those cases solutions are found through representation, which is precisely the central issue of this volume.44

Criteria for Accepting or Denying International Legal Personality As already mentioned, the criteria of being a legal subject must be decoupled from the criteria of statehood. The preconditions for appearing in the international arena as a legal subject are determined by international law, mainly developed by its prime actors, the states, but also formed by judicial decisions and teachings of "the most highly qualified publicists", to quote Article 38 of the ICJ statute. Accordingly there is a broad agreement45 that five elements have relevance in ascertaining whether an entity is a legal subject. They are considered in turn.

Rules Entitling Mankind and Future Generations The first, most obvious condition is that the entity claiming status must be designated by customary or treaty law as a bearer of rights and obligations. As discussed earlier, there is no doubt that mankind and future generations are entitled by several provisions of binding multilateral and bilateral treaties, and there is good reason to believe that the soft law documents and authoritative academic

57

Part 3: Future Generations as a Subject interpretations point to an evolving customary law, for example, in accepting sustainable development or the Rio Declaration's principles as reflections of binding customary law.

Representation and Capacity to Make Claims for Injuries The capacity to make claims for injuries implies that the entity can institute legal action in court or elsewhere, and the tribunal be ready to pass a decision in favour of the injured entity directly. Obviously, as in the case of all corporate bodies and legal persons, only their representatives can appear in front of a tribunal. Therefore the standing of future generations or mankind in general could not be challenged if adequate representation was provided. As a matter of fact international law does not determine how other subjects should appoint their representatives. Two issues stemming from this position deserve a closer look. First is the fact that the population of a state does not have a direct legal presence in international law, but is mediated through the state structure, primarily by the government. Up to now international law was basically neutral with respect to the way in which the population could influence who brought international claims on behalf of their state. The majority of states up to the 1990s were not democratic and even nowadays there are more than 60 states at least, in which the government's entitlement to represent the state is nothing more than the brutal fact that it is wielding power in the territory of the state, no matter how undemocratically. This is to say that the choice of representatives of the state is a complex entity, ie the appointment of the government is not regulated by general international law. The disputes of the early 1990s raised the idea that the population of a state may have a right guaranteed by general international law, and certainly prescribed by the International Covenant of Civil and Political Rights for the states parties to it, to have a government based on fair, free election.46 However, and this is the second issue, if a state has a government, democratically legitimized or not, the way in which it appoints its representatives to present the state's claims is absolutely not subject to international legal regulations. The Vienna Convention on the Law of Treaties47 requires only that the person expressing the state's will in connection with a treaty have appropriate full powers.48 Further the convention gives a right to challenge the validity of a treaty if it was concluded through/by involving the manifest violation of a fundamental provision of internal law regarding the competence to conclude treaties.49 The content of these internal laws, however is not subject to international legal regulation. The same applies to international organizations, which have a similar freedom in determining how their representative is elected or appointed according to the internal rules of the organization.50 There is no definition of what "appropriate" means as an adjective of "full powers". What follows from this is that future generations and mankind in general may have representatives bringing claims on their behalf. There is a presumption that the representative should gain this position in a legitimate, democratic way, whatever this may mean in the context of mankind as such, including future generations.51

Capacity to Conclude Treaties This is a sensitive point in the process of proving the separate legal status of future generations. Obviously those future beings cannot appear in present conference halls, but this is a lesser problem. There are many other entities incapable of moving

58

Speaking Without a Voice a door handle or signing a document, including the state itself. If the issue of representation is solved, then future generations can as aptly negotiate as any other abstract entity. More substantive problems are raised by the mutuality of rights and obligations.53 Is there a capacity to conclude treaties if it is not accompanied by a capacity to offer any kind of performance, relevant to the other treaty-making partner? Can future generations have legally protected rights without undertaking similar obligations? This frequently raised question requires some thought and does not have an automatic answer. Is it true that they cannot undertake any obligations? If it is accepted that future generations may be represented then there is no technical obstacle to undertake obligations. Certainly they will not be performed by the future generations for the benefit of present generations, but this is not a precondition either. The synallagmatic character of a treaty (as of a contract) only requires that there be a kind of reciprocity between the performance of the two parties. Nothing requires that the receiver of the counter-performance be the same as the performer. From this it follows that if future generations perform an obligation vis a vis their successors as a counter-performance for the service which they have received from the present generation then the reciprocal element is established. Present generations may have an interest to denominate as beneficiaries further future generations as recipients of performance of closer future generations thereby trying to assure the continuum of transcendence, the survival of the spiritual, the repeated victory over death and disintegration.

C apacity to Enjoy Privileges and Im m unities The capacity to enjoy privileges and immunities might be an important requirement derived from - and at the same time supporting - the sovereign equality of states. Also international governmental organizations may need a limited exemption from the jurisdiction of states in order to function. However, in the case of mankind and future generations this exigency may be partly irrelevant - insomuch as they do not exercise jurisdiction and therefore their acts need no exemption to being overruled by an entity of the same level - and partly it may be fulfilled. Future generations and mankind in general may need and utilize privileges and immunities in two respects. First, to the extent that their representation involves natural persons. Probably these persons will, at the same time be protected as representatives of states or international organizations. Should they not already enjoy diplomatic privileges and immunities because of their existing functions then these persons should be entitled to such on the basis of their function as representatives of the future generations. This is an unlikely alternative, since most ideas concerning the representation of future generations links it either with existing or suggested UN bodies, or with new entities to be established at an intergovernmental level, having the character - and therefore the privileges - of an international governmental organization. Second, assets belonging to future generations may need immunity from the jurisdiction of national courts. I do not think that there is any doctrinal difficulty in recognizing that certain areas and/or resources should not be objects of national jurisdiction without prior authorization from the competent representative of the future generations or mankind, just as is the case in respect of the deep sea bed.

59

Part 3: Future Generations as a Subject

Admission to the International Community The long road from reality to utopia is marked with memorials of noble ideas killed by the dismissive smiles of diplomats, this we know. But liberating the slaves, giving women voting rights, or having white and coloured people sit in the same bars appeared to be a ridiculous proposal for hundreds of years in certain parts of the - allegedly civilized - world. It would be futile to deny that the final test of becoming a subject of international law is the recognition of that quality by the established subjects, including states. But it is completely possible to envisage that those subjects recognize mankind and future generations as subjects of international law having legal personality and limited capacity as will be explained below.

APPLICATION OF THE ANALYSIS TO MANKIND AND FUTURE GENERATIONS The foregoing analysis has proved - 1 hope - that there is no doctrinal obstacle to recognizing that mankind and future generations may be subjects of international law. A few remaining questions need clarification to supplement the review of their legal personality.

Mankind and Future Generations It may have been noted that I have frequently used mankind and future generations within one phrase, as if only that expression as a whole should appear in a given statement. I see the relationship of mankind and future generations as the simple logic of the language suggests: mankind is the broader category, encompassing all future generations, but including more, namely the present generation. A closer look reveals the importance of this asymmetry: future generations, having the specificity of not existing yet, may have particular interests, not fully identical to the interests of mankind as a whole, inasmuch as the present constituents of mankind also may wish to benefit from the resources of mankind, eventually at the expense of the future segment of mankind. In this case mankind's interests have a more complicated structure, than that of the future generations, including the competition between present and future.54 Nevertheless, pulling mankind and future generations together is justified whenever entitlements of mankind are reviewed since those entitlements by definition extend to future generations as well. Secondly in the review of the potential of mankind and future generations to be recognized as subjects of international law treating them together was justified by the fact that similar objections could be raised and had to be refuted regarding both of them.

Why Not Simply the Community of States? It is tempting to identify mankind with the community of states and not to recognize its separate existence, thereby denying the legal relevance of the concept of future generations. There are a number of arguments against this simplification. At the most abstract level the philosophical truism must be repeated according to which the whole is more than the mere sum of its constituent parts, or, expressed another way, the system cannot be reduced (deconstructed) to its elements, but entails more. Obviously mankind is a complex web of states and other entities, nations, peoples, 60

Speaking Without a Voice tribes, and other sorts of human associations, down to the individual. All the complex relationships among these elements, including their temporal dimension (extending to the past as well as to the future) and the social and other institutions produced by those elements, from legal entities to governments are part and parcel of mankind. The international community of existing states certainly does not incorporate all those relationships and mediations which constitute the social, cultural and biological existence of present and future generations, that is, mankind.55 Another level of argument is the historic, which shows that the existence of states is temporarily constrained. Mankind existed before states were formed and one does not have to be an anarchist or a communist to believe that the public good could be served without an even so civilized Leviathan. This leads to the politological issue of representation-mediation. States may or may not represent and mediate the will of their legal and natural subjects. It would certainly be a fallacy to claim that all the existing states are the best caretaker of their subjects' interests. Certain constituent elements of mankind - be it a minority in a democracy discriminating against them, or individuals living under tyranny - may wish to identify themselves as part of mankind through linkages different from the political power exercizing jurisdiction over them. Environmentally conscious inhabitants of the former socialist states of Eastern Europe certainly did not approve their states' policy and practice of ignoring the deterioration of the life-support systems of themselves and their posterity. The last major argument against identifying the international community of states with mankind as a whole including future generations stresses the time horizon contemplated in the decision-making processes. Decisions on behalf of states are made by parliaments and governments, which, in democratic regimes, are subject to electoral scrutiny in regular - from mankind's perspective minuscule - intervals. The logic of politics forces the power holder to discount anything beyond the next election and to almost ignore what does not attract public support at least in a short to medium term of 10 to 20 years. Future generations need actors whose motivation is different from those waiting for re-election.56

Identifying the Specific Interests of Future Generations We may not know the value choices of future generations, but can assume that the conservation of options, the conservation of quality and the conservation of access to natural and cultural resources is in their interest. Sustaining the life-support systems of the earth, the ecological processes and a healthy and decent environment are activities that serve their interests as well as ours. It is clear that identifying the interests of future generations now may be an extremely complicated task, and there is no chance of unanimity.57 But this is not a final argument against supposing that they do have interests which can be formulated in the appropriate process. I'm convinced that identifying the national interest within a state when determining for example, immigration law or in deciding whether or not to invade a foreign country is no less complicated than reaching a conclusion concerning basic rules of behaviour affecting future generations. Either nothing comparable to national interest exists - which is a plausible suggestion, yet generally refused as unrealistic - or the interests of future generations are just as identifiable as the national interest of countries comprising several hundred million individuals such as China or India. 61

Part 3 : Future Generations as a Subject

The Key Question: Representation The success or failure of properly identifying the interests of future generations and finally consolidating them into rights - largely depends on the issue of representation. The present international community bears a special responsibility in so far as it acts like the founding fathers laying the foundations of that representation (at least by setting the agenda). In light of the wealth of suggestions in this volume concerning how the problem of representation could be solved by a guardian I feel relieved from the duty of presenting a further elaborated project. Instead, I propose a few principles and guidance for approaching the issue. • The representation need not and probably should not be uniform in respect of the different kind of items. A single regime of guardian should not be developed but rather a set of institutions, each tailored according to the specific characteristics of the subject area. ■ Representation of future generations should not be left to state actors only, but should necessarily involve non-state actors as well. In a three-dimensional space with three axes this would lead to the space illustrated by Figure 6.2, which enables different kinds of representation in relation to different kinds of resources/assets. One axis could run from state/organized to NGO/ad hoc. One from sub-state to transnational, with state and international in between. One would comprise three types of resources and assets: natural resources within national jurisdiction, natural resources beyond national jurisdiction, cultural assets and resources. Finding the appropriate representation for future generations means identifying a point in this imaginary space which describes the best mix of state/ non-state actor at either level from sub-state to transnational, with respect to a given resource.-58 Objects Natural resources beyond state co jurisdiction Transnational International National Sub-state

o

Cultural resources

under state jurisdiction

CO

c CO

CO =3

O)

Site and stability of organization State/Organized

NGO/Ad hoc

Figure 6.1 Dimensions Determining the Position of the Guardian 62

Speaking Without a Voice

CO N C LU SIO N The aim of this paper was to prove that the preconditions for recognizing future generations as subject of international law are present. They are entitled to satisfy their needs by binding norms as well as other documents reflecting - at least emerging - customary law. There are valid moral, philosophical and other reasons supporting the development of law' into accepting future generations as a group with specific interests deserving legal protection. The analysis of mainstream views concerning subjects did not find any obstacle to the recognition of future generations as subjects of international law' which certainly has personality and also eventually limited - capacity in law. It is vital that neither mankind nor future generations be identified with the community of states. From this it follows that future generations need a representation which has to be tailored according to the specific field in which this representation occurs.

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7

SAFEGUARDING FUTURE GENERATIONS Christopher D. Stone

BACKGROUND: THE MALTESE PROPOSAL In 1992, in preparation for the 1992 Rio Earth Summit (United Nations Conference on Environment and Development (UNCED)), the delegation of Malta submitted to the preparatory committee a proposal that the world community go beyond the vague declarations of responsibilities towards future generations that are appearing in international documents with increasing frequency,1 and actually institute an official guardian to represent posterity's interests.2 The proposal contends that, just as conventional legal systems typically provide representation for infants, the mentally impaired, and others who cannot adequately speak for themselves,3 so the world order should provide for: "IA In authorized person (guardian) to represent future generations at various international fo ra ... whose decisions would affect thefuture... to argue the case on behalf o f fu tu re generations, hence bringing out the long-term implications o f proposed actions and proposing alternatives. His role would not be to decide, but to... plead fo r future generations, land to counter! the firm ly established attitude o f our civilization [to discount I the future.

"4

Such a guardianship, the proposal observes, would give our responsibilities to future generations "a practical substance and a concrete form." The recommend­ ation is distinctly preliminary - an invitation to a dialogue. In this spirit, I will react by raising several overlapping issues that the proposal inspires, issues that range from considerations of economics and institutional design to fundamental questions of moral philosophy.

FOR WHOM (OR WHAT) SHOULD A GUARDIAN SPEAK? The proposal contemplates that the guardian would represent future generations of humans.5 Those concerned with the state of the future are not, however, restricted

Part 3: Future Generations as a Subject to focusing directly on the well-being of persons. One might consider (as I have proposed) a group of guardians, one for each of several natural objects - for example, a legal spokesperson for marine mammals, another for Antarctic fauna, perhaps others for various great cultural artefacts such as the Sphinx.6 Of course, the condition of these various objects, represented by object guardians, would affect the well-being of future generations of persons indirectly. But in a specific context an argument for whales, for example, will not necessarily coincide with an argument for future persons. Social decisions commonly pose trade-offs in which the hazarding of a great habitat or artifact may appear, on balance (because of the compounding value of the alternate investment), calculated to improve the welfare of future generations. In those circumstances, a future generations guardian might consent to the project as acceptable for his human principals, while a guardian for whales might steadfastly oppose it as too risky for her cetacean clients. One might argue that where conflicts exists between the welfare of future persons and the preservation of non-human creatures and objects, our choice has to be governed by human preferences. But there is no such easy way out from under our responsibilities. The tastes of future generations are not only unformed; it is our choices that will form them. The value persons remote in time place on the existence of, say, songbirds, is not a given, but will be a function of the legacy we leave them. I personally would regard the eradication of all songbirds as a terrible loss for my remote progeny. But they may find the electronic sounds they will be able to create an entirely adequate substitute, particularly if they never have the opportunity to hear live songbirds. In other words, we cannot consistently appeal to their wants in making the very decisions that will, inescapably, form those wants. One implication is to reinforce the case for guardians for natural objects and human artefacts (rather than future persons), since our decisions on whether to make whales and songbirds planetary heirlooms will strongly influence - we might say, is logically prior to - the value future persons will place on those things; and the decisions regarding those things might most appropriately be made through decisions informed by thing-specific guardians. Organizing future orientation at least partially around objects would not compromise the spirit of the campaign to extend human foresight. Many of the concerns being voiced about the (mis)treatment of the planet are motivated as much by concern for the state of the environment as for the well-being of temporally remote persons. When people verbalize their motives, some distortion occurs because the vocabularies of familiar moral theories, based, as they are, on humanoriented terms such as pleasures, pains and dignity, are more congenial to an accounting for the welfare of unborn persons than for contemporary objects and species. As a consequence, some of the pro-nature and pro-artifact sentiment is refracted into pro-future generations sentiment. This is, in a way ironic, inasmuch as a guardian for some elements of the planet, such as whales, may be able to identify her client's interests with more confidence than a future generations guardian could speak for his - for the desires and needs of the people who will inhabit the earth in, say, 2200. In all events, none of these remarks is intended to undermine the notion of a guardian for future generations. But we should remember that such a guardian is not inconsistent with guardians pleading for other interests and values, whose contributions will in some instances carry our concerns along tangent lines of thinking.

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Safeguarding Future Generations

ARE THE MORAL ARGUMENTS ON BEHALF OF FUTURE GENERATIONS CRITICAL TO THE GUARDIANSHIP PROPOSAL? There is a wide-ranging and impressive body of literature regarding the moral status of future generations. The central inquiry is whether ethics provide any compelling reasons that we sacrifice our welfare in the interests of persons unborn. The answers are controversial and complex. A considerable body of opinion suggests that it is incoherent that we can have a duty towards any person not in being, or, alternatively, that such a person can be said to "hold" (at most, "will hold") a right against us.7 It does, indeed, seem to deform the ordinary concept of "right" to suppose that rights (that we not store nuclear waste in vulnerable deposit sites, for example) will spring into the hands of those who will live in 2200, long after the possibility of a remedy against us, the violators, has been mooted by our deaths.8 One rejoinder is that rights and duties are not the only fabric of which a morality can be woven. Whether or not a starving person in Somalia has a right that I aid him/her, and whether or not I have a duty to aid, the state of affairs in which she/ he is aided by me is surely morally superior to the state in which I do not aid her/ him. The proposal well-advisedly speaks not in terms of our posterity's rights, but of our responsibilities, which are typically viewed to run wider, and be less inflexible and imperative, than rights and duties.9 Those advocating a guardianship for future generations can thus locate a moral grounding for their position without miring in some of the most daunting conundrums that the future generations literature debates. Indeed, let me go a step further. It is quite possible for the proposal to go forward entirely independent of the moral status of future persons. That is, whether or not posterity possesses moral rights against us, and whether or not we have moral responsibilities towards them, the establishment within the international legal system of a future persons guardian can be defended without ranging beyond the welfare of those presently living. Specifically, imagine that most living people will regard insuring the well-being of future persons as a positive public good (in their own welfare functions). Put otherwise, just as people get benefit from assurances that their homes will not be robbed, so they get benefit from assurances that their descendants will be provided for. In the first instance, because we are happier if public safety is provided, through collective action we establish guardians called police officers; in the second, being happier contemplating a snug posterity, we designate a guardian to speak for them. Now, this is not to overlook that special moral pleadings in regard to posterity, for example, an argument that the unborn hold (will hold) rights, or that we have strong duties towards them, will strengthen the argument for establishing a future generations guardian, and be available to expand the powers with which the guardian ought to be invested.10 The point is merely that the guardianship notion need not stand or fall on - or be postponed until resolution of - the most perplexing philosophical objections to rights of the unborn.

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Part 3 : Future Generations as a Subject

WHICH FUTURE GENERATION IS THE GUARDIAN'S PRINCIPAL? Even if we adopt (from consideration of our own interests or of theirs) the proposal's aim to safeguard future generations directly, and other things - species of animals, cultural artifacts, etc - only indirectly, ambiguities remain. Most of the discussions that invoke future generations use the term loosely and without much consistency. Sometimes it is used to refer to the members of successive, roughly overlapping waves of populations 25 or 30 years apart; sometimes, to what we might call remote generations - people who will not come into existence for hundreds of years. One virtue of a dialogue focused on institutionalizing a guardian for future generations is that it compels us to undertake a more precise identification of whose interests, exactly, are to be protected. To begin with - the point is obvious, but bears underscoring - we ordinarily imagine individuals, rather than generations, as foci of our deliberations. Welfare, rights, duties, and so on pertain, in ordinary non-metaphorical parlance, to persons.11 What we call generations are constructed of lives that are continuously overlapping. People die and others are bom to replace them. It may be possible to give the term generation a special independent status, not reducible to expressions about individuals. But even so, a number of questions would remain about which future generation we were talking about. Simply to illustrate the range of potential issues, consider one credible climate change scenario which (rightly or not) has it that relatively unconstrained use of carbon and other greenhouse gases will, on net, benefit humankind for the next several generations. Those presently alive and their immediate descendants will be spared the costs of constraints and forego few benefits, but at some more remote period - after 200 years, say - the accumulated congestion will trigger a host of non-linear positive feedback mechanisms with dire consequences for populations then living. Where such conflicts among future generations are possible, there would be the question to resolve, which should the guardian consider his principal? Consideration has to be given to the question, which is certainly of theoretical interest. For example, one might maintain that, in cases of conflict, the guardian should weigh in behind the more remote of the conflicting generations, on the view that the nearer generations already enjoy a preferred status in our (the living's) welfare functions. The more remote the generation, the more needful it is of the guardian's voice. But arguments could undoubtedly be developed on the other side. In all events, speaking practically, and in light of the difficulties of long-term projections, one wonders how many scenarios we can identify, with an appreciable degree of confidence, which potentially pit one future generation against another, more remote future generation. The issue is one that should be identified as warranting further attention.

WHO SHOULD SERVE AS GUARDIAN? The proposal contemplates the appointment of A n eminent person, without known prejudices, and having practical wisdom, integrity, moderation and humility, with an ability to feel the pain and share the joy o f people who will live at a great distance from us in t im e ." ^

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Safeguarding Future Generations Obviously there is a problem of obtaining international concordance on which candidate best (or simply suitably) displays these agreeable qualities. And there is the obvious question, whether a single individual, rather than an agency or series of agencies (below) would not be required, merely from the weight of work. But we also might ask whether more specific expertise might not be desirable. The answer turns on the anticipated functions we expect the guardianship to provide. To illustrate, my own analogous proposals, favouring a number of distinct guardians for distinct objects (tropical forests, oceans, whales, etc), place heavier reliance on appropriate expertise, inasmuch as each object requires distinct bodies of knowledge. For example, in the case of oceans, one strong candidate would be the joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP), with lawyer staffing. Such recognized institutional bodies have several advantages. They concentrate and mobilize knowledge; their opinions are therefore authoritative, and readily enjoy a credit that may be denied the speculations of a well-respected generalist. A shift of focus from objects to persons does not necessarily undermine the case for specialized expertise. It depends. If the function is simply to speak for the general welfare of future persons, the opinions of a generalist are not inappropriate. Much can be accomplished through economic and fiscal measures, such as tempering the effective social rate of discount.13 But the more critical calls may arise when, hovering above the general ratio of global consumption to investment, there is concern over the long-term effects on human life of specific assets and activities, such as selecting techniques for long-term storage of nuclear waste. These raise highly technical, area-specific questions. Future persons might wish that those who spoke for them had more than practical wisdom and humility; even if the well-being of persons is to be the institution's dominant concern, future persons might prefer a guardian specialized in the ocean environment, who can speak authoritatively on the lasting effects of toxic material beneath the ocean floor, and so on.

WHERE SHOULD A GUARDIAN BE INSTITUTIONALLY HOUSED? The proposal appears to contemplate a guardian housed within the United Nations, which provides, of course, a prestigious base of operations. Alternatives include housing the guardian independent of any existing institution. Such a free-standing guardian might be an international body - that is, appointed by and responsible to nation states. On the other hand, particularly in view of the fact that, so often, the actions that the guardian would presumably call into question are those of nation states, a strong argument can be made for building the guardian as a nongovemmental organization (NGO), thereby providing it a freer hand to criticize and supplement official activities. And, of course, there need not be a single guardian. One could arrange a cluster of expert but institutionally free-standing guardians. Another alternative would be to establish a number of guardians, each separately housed within such agencies as the central banks,14 the World Bank, International Atomic Energy Agency Global Environmental Facility, etc. One cannot say with certainty which route would best promote the values the proponents wish to advance. There is much to be said for structuring guardians into vital slots in various of the existing bureaucracies. Doing so would promote the guardians's 69

Part 3: Future Generations as a Subject access to the flow of information and to those who are making the critical decisions; but it would also raise the risk they will be co-opted. As a practical matter, the question of guardian location is less likely to be settled by ideal theory than fortuitously, on a case by case basis. That is, we are not likely to see the question of creating a single guardian with plenary jurisdiction brought to a vote imminently. At least, while such a proposal is being advanced, in some form, we may have the prospect of a series of incremental proposals, convention by convention, and institution by institution. Such negotiations provide the opportunity to create context-specific guardians. To illustrate, the question of a special future guardian might be posed initially in furthering any of the numerous conventions that already invoke future generations terminology, such as the 1991 Arctic Environmental Protection Strategy aims to "safeguard the Arctic environment for future generations..."15, or in the context of establishing or reshaping an institutional arrangement, such as under the North Atlantic Free Trade Association (NAFTA), perhaps as an integral part of the yet to be formed Commission for Environmental Cooperation, or in the context of a United Nations Environment Programme (UNEP) Regional Seas Programme, or within the new Commission on Sustainable Development. On the other hand, to surmise how the guardianship proposal is likely to evolve historically should not distract us from examining the theoretical ideal: should we press for independent or housed guardians, so far as the two schemes are inconsistent?16 Should the guardian be a representative of nation-states, or non­ governmental? And if non-governmental (with increased independence of advocacy) how could we make it (to whom could we make it?) responsible? Why - and in what manners - might we want and expect a nominal guardian to change the processes and outcomes of institutions many of which (such as the Commission for Sustainable Development) are clearly future-oriented anyway? To resolve these questions, we have to take a closer look at the possible functions of the guardian.

W HAT O FFIC IA L FU N C TIO N S SH O U LD TH E G U A R D IA N SERVE? As concerns official functions, the proposal is clear that nothing beyond "the power of advocacy" is contemplated. "His role would not be to decide but to promote enlightened decisions. . . to put forward arguments on behalf of future generations... at various international fora, particularly the United Nations."17 As an alternative, the functions of a guardian might be further specified and expanded. For example, the guardian might be authorized: ■ to appear before the legislatures and administrative agencies of states considering actions with pronounced, long term implications; ■ to appear as a special intervenor-counsel in a variety of bilateral and multilateral disputes; and • perhaps most important, even to initiate legal and diplomatic action on the future's behalf in appropriate situations,18 for example, when there is a threat to a world cultural heritage, eg, the Pyramids Plateau, and no signatory to the UNESCO Convention for the Protection of the World Cultural and Natural Heritage19 steps forward to pursue redress.

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Safeguarding Future Generations In other words, at another extreme, the guardian might be empowered to range outside a particular agency, beyond even the United Nations system, even to the point of suing to enjoin activities that damaged the global patrimony. And there are certainly other possible entry points for the guardian. Hungary's justification for terminating its international obligations to Czechoslovakia to build a joint canal system included the following claim: "A lthough the devastation o f the natural resources and that o f the landscape is significant, the dam age is mostly reparable... [But, in] the case o f forest populations Ithe adaptation] process is considerably slower and can be measured in term s o f centuries. The answ er to quick and drastic changes is degradation and decay. F or the regeneration o f forests living in near-natural conditions, centuries would be needed at the very best... [Also, ] several grou p s o f animals have not been docum ented fu lly until now. Each year, there are a num ber o f new species fo un d . A ll o f them are o f national value: their preservation fo r the future generations is a moral obligation

,20

Perhaps in a dispute of this sort, destined for a hearing in the World Court,21 the guardian could be available as a master to make special findings. Another important question involves the guardian's power to waive rights of its ward. Suppose, for example, that a collective decision has been made that a certain species of whale is to be transmitted to posterity. Its continued existence has been made a right of future generations, invocable by the guardian. It subsequently appears that that species hosts a virus, which, if not eliminated will imperil all marine mammals. The whales must be sacrificed in order to save more of nature. Will the guardian be empowered (on certain conditions?) to waive the right-the way in which the guardian for an infant may, in some circumstances, waive a right of the child? Imaginative and expansive alternatives of these sorts are worth keeping in mind. And they also inform the discussion about the institutional placement options, discussed above. For example, regarding the power of waiver, would we tolerate waiver by an NGO-modelled guardian? In general, the more actively the role is defined, the more reason there is to preserve the guardian's independence from pre-existing institutions - but at the same time, the more concern we will have about accountability. To illustrate, if the aim is simply to promote future-sensitive decisions by the World Bank, then a guardian positioned within the World Bank will do. But if one worries that the World Bank deliberative process (even enlightened by the in-house guardian) will result in outcomes that unfairly imperil the future, what recourse would remain viable? Once the Bank has made its final decision, it is not likely that the World Bank future guardian will have a free hand in undermining, even criticizing the World Bank extramurally. Particularities of the situation are crucial. If the particular imperilment of the future's patrimony concerned the seas, then the creation of an oceans guardian would presumably reserve a valuable and pertinent voice. But if each of several guardian groups has its own ideas as to what is best for posterity, which does the decision-maker credit? In regard to these institutional questions, it is worth keeping in mind that while a designated guardian would be an original and perhaps valuable advance, the basic concept is not entirely novel. For example, in the US, the Office of Technology Assessment (OTA), the Assistant to the President for Science and Technology, 2 and various official scientific bodies have aimed to extend the time horizon of the Congress and Executive. Other comparable offices undoubtedly exist in other 71

Part 3: Future Generations as a Subject nations and in international bodies. Where they exist, the availability of such technical advisors does not displace the need for a guardian with broader ambitions. But we could profitably identify existing agencies that already supply, if not fulfill, future-orienting services and learn what we can from their successes and deficiencies. What functions currently unprovided should a guardian therefore emphasize?

WHAT SHOULD BE THE GUARDIAN'S OBJECTIVES? Let us put aside how the guardian is to be initiated, where it is to be housed, and its institutional functions (where it would be empowered to appear), etc; what is the guardian to aim for? One might say that the guardian, like any hardy advocate, is to urge the living to pass forward to future generations as much wealth, and as few risks, as he can persuade us of. But even special counsel appointed to patrol the interests of an unascertained, unborn beneficiary under a trust is constrained to fit his advocacy within certain defensible principles. There have to be some guidelines delineating the sacrifices the guardian is asking us to make. The range of principles to which the guardian could appeal is extensive. For example, we could declare that the guiding principle is to further equity among all persons, bom and unborn, across all generations.23 But even if we got that far, there are variations on equity, some demanding more sacrifice than others.

Resource-Regarding Standards It has been suggested that the guardian could aim to leave future generations a fair share of the earth's resources.24 If a per capita share of each natural resource is meant, the constraint appears odd. Technology (as well as demand) is continuously shifting the value and even the stock of accessible resources. Increased rates of consumption of many non-renewable resources has been continually more than offset by improved methods of prospecting, recycling, mining (biomining), etc.25 We may be leaving - effectively - more key resources than we inherited. Moreover, in a generation or two, many of these resources that we value - such as coal and copper - may have faded into worthlessness. My guess is that the tempering of use that those concerned about future generations want to achieve when they ask for a sharing of (or "trust accounting for") the earth's physical assets can be more sensibly secured by focusing on one of the alternatives, eg, the value or utility that the assets represent.

Utility-Regarding Standards The hazard to future persons is not merely that we may be consigning them to a shortage of resources. Major resource shortages would almost certainly be accompanied by appalling institutions (or an appalling lack of them). This is an additional reason why, if there is to be a guardian whose thoughts are trained on future persons, the better aim would be to apportion utility, or some near proxy, for example, wealth, or basic goods, across all persons born and unborn. The implicit equity argument would be that, just as (people in) richer countries might be expected to pay more for safeguarding the atmosphere than (people in) poor countries, so rich generations would be expected to pay more than poor generations; 72

Safeguarding Future Generations but of course, successive future generations may continue to display more wealth than their predecessors. Perhaps not. The guardian might conceive its role as to forecast trends and to: ■ raise average utility; ■ equalize opportunities (according to some appropriate opportunities index); ■ disregard averages, but put a floor under basic needs.26

Efficient Level of Harm and Harm-Avoidance Another approach would be to focus on the effects of our activities. The guardian could take the position that his office was not to equalize wealth or utility among generations - he would be willing to let those fall out where they may - but to internalize (negative) externalities that we the living were otherwise shouldering off on the future persons. Analysis of intertemporal conflict between the living and the unborn would be assimilated to the familiar modelling of economic conflict between contemporaries, say, two neighboring nations. To illustrate, electric utilities in the northern US are burning coal to generate electricity. Some pollution is cast southward and is borne within the US. But some pollution blows northward into Canada. The US could constrict pollution further, at a cost. But while 100 per cent of the marginal cost of further abatement would be borne by the US, only a portion of the benefit would be realized by the US (because a portion of the benefit the US paid for would inure to Canada). Under these circumstances, the level of pollution control that the US would find efficient (considering that the benefit of any further abatement would be offset by the increased costs) would result in too much pollution from the perspective of the US-Canadian populations combined.27 The literature is replete with analyses of the policy instruments available to assure that the long-term social costs of an activity are at the right level, including command and control strategies, and price and quantity restrictions, the latter possibly even fine tuned, ideally, with tradeable permits.28 Inasmuch as present and future generations cannot trade as straightforwardly as neighbours, eg, the US and Canada, the guardian might regard a tax as the appropriate instrument to temper intergenerational externalities (no doubt favouring investment of the tax proceeds in long-term capital projects). The living may defensibly resist the guardian's efforts to disaggregate our economy into distinct activities, selectively internalizing the negative externalities of those (such as our coal-fired plant), that cast a burden forward. After all, part of the savings on, for example, pollution abatement, enables increased investment in assets with positive intergenerational externalities. That is, partly because of the savings on abatement we are leaving richer legacies of infrastructure, libraries, technology, and so on. How can we be sure that they will not value the marginal benefits of added technology over the marginal costs of the unabated carbon? In regard to the issues of disaggregation and internalization, we should note that, up to a point, we do charge the unborn for their share of the costs of undertakings that benefit them. Great public works projects, such as water transportation systems and highways, are commonly financed with bonds outstanding for 50 years and longer. Trust funds, such as (to take US examples) the Highway and Social Security Trust Funds, are mechanisms to assure that the unborn bear some of the costs of producing their inheritance. But as a means of 73

Part 3 : Future Generations as a Subject reaching an equitable or efficient adjustment with future persons such measures are obviously crude. The skeptic can always argue that we are providing benefits, as well as burdens, downstream in time - "and what did they ever do for us?" Hence, the balance of credits and debits on the intergenerational ledger is not so clear. Yet, the impression lingers that there must be innumerable opportunities to protect the future at relatively low costs, if we only have the ingenuity and (prompted by a guardian) the conscience. An illustration is the US Department of Energy study examining strategies to warn our remote progeny (whose language may no more resemble ours than ours does that of ancient Greeks), away from highly dangerous storage sites.29 The costs of simple measures may be modest; the benefits, great. Moreover, the need for a guardian is underscored by the likelihood that the very process of settling intratemporal disputes may lead to the foisting off of externalities across time. To illustrate, Nation A (contemporary powers including the US and EC) want Nation B (Russia) to stop dumping nuclear wastes in the oceans. B pleads hardship and refuses unless A picks up the costs. A agrees; but the payments drive A further into debt. The debt is packaged into a burden passed forward onto a group that includes the unborn. The guardian could monitor to assure that the added burden to the unborn was not out of proportion to their added benefit: were there any more justifiable alternatives?

Precaution Against Selected Calamities Whatever support each of the various alternatives above may be able to find in abstract moral analysis, each is fraught with such serious complications that some observers may gravitate towards a more constrained ambition for the guardian. As we consider lives increasingly remote from our own, it becomes increasingly difficult, not only to identify with them morally, but also even to form an opinion about what to desire for them. With so many details veiled from us, the guardian might urge only such sacrifices as are calculated to avoid relatively cataclysmic events. In fact, the internalization model may miss some activities the future would be grateful for us undertaking, but which cannot (without some stretch) be regarded as internalizing the costs of our present activities. What they might most like from us, is that we started work on an emergency defence system capable of destroying earthbound asteroids or comets,30 even though we would not be the cause of the peril (the way in which we cause toxic wastes). Indeed, one could imagine a defence system the construction and deployment of which took so long that none of the benefits would accrue to those now living or perhaps even the now unborn persons who would foot the bill - a nice illustration of a relatively pure sacrifice for future generations.31 In other words, forsaking a quest to equalize opportunity, eliminate negative externalities, etc, the guardian might view the task as restricted to assuring only that they are not deprived of the stock of planetary goods and services requisite for an acceptable (somehow defined) human existence. As Joel Feinberg once put it, "we have a moral obligation not to leave our progeny the moral equivalent of a used-up garbage heap."32 This fourth model can be regarded as a special case of an equal resources policy. We would not be obliged to share all resources ratably, in the sense that we would have to turn over the same amount of cropland, or cropland per capita, as we inherited - or anything as problematical as that. But we would be constrained not to invade, and indeed, to defend, if need be, the corpus 74

Safeguarding Future Generations of some very critical endowments: including an atmosphere and ozone shield congenial to life, a healthy ocean ecosystem, and so on. Even this is not a clear mandate, inasmuch as there is room for considerable differences as to what constitutes the "and so on," and technical opinion varies as to the long-term risks of contemporary activities, such as the hazards various levels of carbon use pose for whatever are regarded as the critical global resources. But a virtue of the proposal is that it does not instate the guardian in the position of making the final decisions. The decision process is just that - a process. The guardian's role options all convene on gathering and presenting to decision-makers data that sheds light on the risks and clarifies the alternatives. Further, the options that would present our remote progeny a used-up garbage heap of an earth, and not also be devastating to us and our immediate progeny (therefore, hopefully, providing current institutions ample motivation, if not capacity, to avoid them), is quite limited. This would simplify the guardian's task by restricting the number of causes in which he would be required to appear.

Avoiding "Irreversible Harm" Merely to avoid gross, life-hobbling calamities may be too modest an objective. There are suggestions that the guardian should take a special stand against measures that are irreversible (or irreparable). On inspection, this concept, too, is unclear. All change is irreversible in the sense that time runs in one direction. A disturbed ecosystem does not reverse; it evolves in other ways than, but for our tampering, it would have. This is not to say that all courses are practically or ethically equivalent. It only underscores that what we are disposed to label an irreversible harm must be some sort of change we imagine future generations will deeply regret and ought not to be permitted. But that does little to advance an answer to our original question, which was how to decide which were the harms that were impermissible. A helpful way to clarify the intuition that (some) irreversible changes should trigger guardian intervention comes from the notion of option value. A social choice displays option value in circumstances where one of the choices is impossible (or extremely costly) to undo and it is also reasonable to anticipate, at some future time, improvements in knowledge of the benefits and costs of the outcomes.33 Consider, for example, a biological hot spot in a rainforest. Its present value converted to farmland is $1000/acre. Its expected present value as a "library" of genetic material for medicinal and industrial purposes is only $700/acre. The highest economic use of the forest is apparently to transform it to agriculture. However, we also know that someday, as our ability to "read" the library and synthesize and exploit the forest's material improves, the forest may have a large benefit that present conversion to farmland will make impossible to realize. Option value is the value of not extinguishing that prospect; to put it otherwise, the facial cost of forgoing conversion ($300/acre) may be merited as a sort of "flexibility premium." We bear the costs of postponing development, to "purchase" an option to exploit the possible benefits of a biological hot spot if, at some later time, with the advance of knowledge and technology, substantial benefits should materialize. Of course, in any particular case, the price we pay for the option may or may not prove to have been merited. Nonetheless, illuminating the option value would be, on this view, one of the services the guardian would perform: to speak for the option value of select assets.34 75

Part 3 : Future Generations as a Subject

SHOULD WE FAVOUR TEMPORAL AID OVER SPATIAL AID? I leave for last the issue I find most troubling. We face a severe moral conflict. On the one side, there are the unborn. We are convened here from a shared worry whether we are doing right by those who will inherit the earth in 100 years and beyond. On the other side, there are the present poor. Approximately 1.25 billion people, most of whom seem as remote from us in space as our remote progeny are in time, live in what is termed absolute poverty.35 The bottom third of these, perhaps 400 million, spend 80 per cent of their income on food but still lack sufficient calories to meet their metabolic needs.36 In the 1990s, 100 million people, 27,000 a day, principally children living in the Third World, will die of treatable diseases.37 Billions of illnesses and more than two million deaths are attributed to dirty (or scarce) water alone.38 If we recognize a layer of responsibilities to some beings who live beyond our own moral community, how do we balance the claims of strangers in space with those of strangers in time? Certainly potential conflicts between honoring temporal and geographic appeals are manifold and poignant even unpleasant. At an extreme, is it not likely that the salvation of famine-ravaged populations today increases the human cargo the planet will have to bear in 2100? The appeal on behalf of both groups stands on roughly the same moral footing. "Roughly," because there are some practical and perhaps morally salient asymmetries that a fuller discussion would have to account for. For example, certain strategies available to reduce wealth/utility disparities intratemporally are unavailable intertemporally. A reform in immigration policies - open borders - is an option that could erode wealth differentials in space, but not in time.

Which Group Deserves Our Priorities? The facile answer is "both at once": we should seek ways in which the environ­ mentalist programme (to conserve the environment in the interests of future generations and perhaps for the environment's own sake) and that of developmentalists (who want perhaps to increase but certainly to redistribute wealth) are, or can be made, congruent. There undoubtedly exists, in fact, some range of policy options that enable us to do just that. For example, carefully managed game reserves, with incentives properly structured for indigenous peoples, promise to draw a steady stream of tourists and hunters to underwrite the conservation of otherwise endangered game animals for the benefit both of impoverished natives and of posterity. But it is undeniable, too, that there is a tension: financing our efforts to conserve, in the interests of the unborn (and contemporary well-off), compete with efforts to aid and develop in the interests of the poor, largely in the under developed countries. To accentuate the poignant parallel I shall refer to the first, such as the residents of the 22nd Century, as Temporal Strangers (TSs), and the second, such as the residents of Somalia and Rwanda, as Spatial Strangers (SSs). A guardian for the contemporary poor (TSs) would undoubtedly make the following argument. First, assume (following a dominant technique in contemporary philosophy) that to construct just distribution we place ourselves behind a veil of ignorance. That is to say, we ask what rules would be deemed appropriate if we, as rule-makers did not know into which century or spot on earth they would be born - present Rwandans, New Yorkers of the 22nd Century, etc. 76

Safeguarding Future Generations Either of two guiding principles is likely to emerge. First, we might decide that justice required them to maximize expected utility; second, we might feel obliged to make special provision for those least well off or destitute, even at a reduction in the average (expected) utility. The interesting point is that on either assumption, there is reason to favour the contemporary poor. Take the first position - following, roughly, the analysis of John Harsanyi.39 There is a strong reason to favour expenditures in the present generation - the decreasing marginal utility of wealth and - the likelihood, iudgeing from the course of history, that future persons will be richer in real terms.40 On both counts, any given transfer directed forward in time may mean less to its recipients than the same transfer intertemporally. At the same time, studies reinforce the notion that there are opportunities for abnormally high social rates of return on investments in poor countries, eg, primary education (25 per cent),41 investments that promise rich returns to future generations. That is, favouring the present poor in Rwanda also benefit the remote descendants of those poor and eventually the entire global community. Suppose now that we adopt the second (risk averse) position,42 that our responsibilities are not to increase the expected utility of all persons through time, but to build in a margin of special preference for the needy. On this view, "original contractors" would be deemed willing to pay a premium so that, if they did (against the odds) wind up among the least fortunate, their plight would be cushioned. There are several reasons why we might favour the contemporary poor under this criterion also. To begin with, we know less about the plight of the TSs than we do of SSs - and are therefore less certain what, exactly, we would have to do to improve the lot of their least well-off. Nor is there any reason to believe that the least welloff in 2200 will be any less well-off than the least well-off today. On the contrary, trends suggest that aggregate, even per capita wealth will presumably increase; unless future social institutions do a worse job of levelling disparities, this should bring up the future "bottom." And of course, there is always the possibility that a meteor or ravaging virus could devastate human life, meaning we would had laid aside provisions (disregarding the plight of our own poor) for nothing. What we do know, is that there is such abject poverty right now, among our contemporary poor - what bleaker lives could the future offer? - that we could perhaps commendably exhaust our budget providing vital aid to SSs alone.43 Second, there is the question of control. As relief agencies know, not all gifts we make reach their intended beneficiaries. War lords and corrupt political agents intercept some portion of it before it sifts to the level of needy individuals. But consider how much more problematical are our endeavours to get aid into the hands of intended beneficiaries remote in time. Suppose that, faithful to a maximin posture (maximizing the position of the least well-off) we establish a fund with directions that interest be compounded and the total distributed to the least welloff billion people in 2200. How could we possibly hope that our goal would be accomplished? The same lack of control that clouds efforts to pass forward general wealth (money) hinders efforts to pass forward specific assets. Imagine that the living make a collective choice to hold whales in trust perpetually. We therefore subsidize whaling nations to dismantle their whaling vessels. How can we possibly rest confident that the policy will not be reversed, and that the corpus will not be invaded by intervening populations, in which participation by the presently living is destined increasingly to decline? (Remember, the gift, as with so many cultural 77

Part 3: Future Generations as a Subject "gifts" to posterity, is made against a background of uncertainty that the remote future will place the same value on the whales as we do.) The International Whaling Commission, consistent with the great global congress of all the living, could mandate a moratorium on whaling until 2120. Clearly, many events could intervene to nullify our investment: whale diseases, the violation of the agreement by a renegade whaling fleet, or simply a reversal of position at any intervening date by those who value protein more or whales less than we do. Hence, a TS oriented decision to maintain a particular asset, whale stocks - or the sphinx, or tropical forests - is one that subsists from day to day.44 Relief for the present needy works now. On the other hand, this same analysis suggests a basis of distinction that the guardian might be able to make something of: the special virtue of passing forward a limited - but potentially important - set of assets with practically zero or even negative consumption value. Consider investments in well safeguarded nuclear storage sites. Their lingering presence is always a risk; but it is hard to imagine a future generation motivated to break into them (increasing their own risks), the way a generation might be inclined to break into its legacy of tropical forests, for example. In the case of the storage site, invasion of the asset would be a present health hazard. In the case of other assets, ranging from libraries to the asteroid defense system, the constituency for dismantling the legacy at any time, robbing further progeny of its benefits, is apt to be insubstantial.45 This does not mean that projects with these characteristics should necessarily be favoured. Conserving forests might still be preferable. But it is one more factor to be considered. The weight we accord it depends, in large measure, on trust - trust in our own judgement, and on that (and the good will) of our progeny.

CONCLUSION Just as human activities generate externalities among contemporaries, through space, so they produce externalities among generations, through time. Some of the intertemporal externalities are negative: nuclear waste, an imperilled ozone shield, a burgeoning population (concentrated among the poor), long-term debt, a pillaged biodiversity portfolio, expanded deserts, and a carbon-congested atmosphere. Some other externalities are certainly positive, however. We are leaving those who follow us great libraries, monuments, infrastructure and technology. If the past is an indication, our progeny, barring calamity, will lead on average better lives than those now living, even with some considerable increase in population. If our munificence can be expanded, I would be hard put to make a stronger case for our temporally remote progeny, who may come off quite well, than for our spatially remote, wretched contemporaries, whose critical despair is certain. Despite these reflections, I join those who are less interested in a strict book­ keeping of credits and debits than in a cautious, well insured safeguarding of the interests of those trillions who will follow us, if we are not reckless. Yet, even then - even supposing we are inclined to lean over backwards to safeguard the future trillions from profound perils - we do not know what form their perils will take. Many contemporaries worry, on our progeny's behalf, about the risks of global warming. But we are as unlikely to foresee correctly what will be progeny's highest perils, as our forebears could have foreseen ours. (They may be more worried about global cooling, as leading jeremiahs were a few decades ago.) 78

Safeguarding Future Generations In these circumstances, the best insurance we can write for future persons has to include, as a central element, enhancing their flexibility to deal with risks presently unforeseen. Fortuitously, this means that if we devote added resources to eliminating many of the problems that bother us - including racism, poverty, nuclear weapons, illiteracy, unrestrained population and excessive nationalism we will go a long way to helping them. One of the best legacies we could leave our descendants would be, aside from wealth, a more flexible and adaptable set of economic and social institutions.46 For example, global arrangements that could overcome barriers to the movement of commodities, people and capital would be one insurance against regional crop loss and famine. An improved World Health Organization (WHO), with early warning capabilities, would mitigate the risks of fast-moving lethal viruses. Even as these institutional improvements are implemented, however, there will linger a residue of concerns. The fact that we have the increasing power to project long-range benefits does not nullify our increasing power to cast an everlengthening shadow of risk. And it is a shadow that increasingly falls across populations who have no say in the decisions that affect them. They have neither electoral voice nor bargaining power nor sword to rattle. Their only avenue of representation is through our well informed concern - well informed morally and scientifically. In this context, the Maltese proposal is absolutely right, and should go forward. In moving it forward, there are a number of institutional, philosophical and moral issues to work on, as I have indicated. At least one promising consideration arises from this brief treatment. Most of the perils that face the remote future - the perils of a nuclear holocaust, and so on - are also problems for the living, which the living already have some (albeit, from the future's perspective, somewhat imperfect) motivation to resolve from simple self-interest. In a way, this makes formulating a role for a future generations guardian easier. It means that the emphasis of the guardian (or guardians) might at least initially be concentrated on a relatively narrow range of long-term needs: those, the elimination of which, on account of prolonged latency period of risk or otherwise, is apt to be overlooked politically, ie, not calculated to marshall an effective constituency among the living. The guardian might also wish to emphasize development of a corpus of assets, such as well secured waste storage sites, that no future generation will be tempted to invade (at least, not until doing so may have become safe and valuable for them and those who follow them). As the proposal moves forward, it may be useful to keep this relatively modest and manageable model in mind. Building on the idea would be time well spent. Not the less so, because our progeny will never be able to thank us for it.

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PART 4

Practical Legal Consequences of Future Generation Provisions in Existing Treaties

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8

PROTECTING FUTURE GENERATIONS: PRECEDENTS AND PRACTICALITIES Philippe Sands

The meeting on which this volume is based addressed an idea which is now firmly implanted in international law: namely the principle that as "members of the present generation, we hold the earth in trust for future generations".1 The purpose of this chapter is to consider the practical aspects of the principle, which establishes a duty on present generations to utilize and conserve natural resources in such a way that the rights of future generations are not compromised. In particular, and perhaps provocatively, I challenge the idea that it would be desirable to establish a UN (or other intergovernmental) office of guardian for future generations. Such a challenge is not intended to belittle the international legal principle which requires the needs of future generations to be taken into account by present generations in their current activities. At both practical and theoretical levels I am convinced that the principle is of great importance. I have usefully invoked it in litigation (to justify the grant of locus standi for plaintiffs) and in the negotiation of international environmental agreements (to justify the adoption of stringent targets and timetables for cuts in carbon dioxide emissions by developed countries to protect small island developing states from the consequences of climate change). And I recognise also the enormous consequences of the international community's recognition that states are limited in what they may do or permit today in order to safeguard resources for tomorrow's generations. Rather, my concern with any effort to establish an office of guardian is whether it is the most effective way to ensure that the principle is implemented and the needs of future generations safeguarded. We do not need more international organizations, or programmes, or offices. We need to refine what we have, and enhance the role of non-govemmental actors in the processes of international law. Unfettered by the constraints of nationhood and international diplomacy, nongovemmental actors already play a guardianship role which is far more effective than any office could ever be. This is reflected in the negotiation of international instruments, as well as arguments presented to national and international courts.

Part 4: Practical Legal Consequences I therefore strongly endorse the arguments underlying the proposal by the Government of Malta, made in the UNCED preparatory committee, for the establishment of an office of guardian to represent the interests of future generations.2 The proposal continues the remarkable contribution which this country and her people have played in the progressive development of international law, especially in the context of the Law of the Sea negotiations (initiating the concept of common heritage of mankind), and now in the context of UNCED and the development of international law in the field of sustainable development (initiating the concept of common concern of mankind in the efforts of the UN General Assembly on climate change). I would like to see those very same arguments rechannelled towards an enhancement of the role of non-governmental actors in protecting the rights of future generations. This should take place especially through the grant of extended participation rights in the activities of international organizations (including treaty-making) and locus standi before national and international courts and tribunals. Such an approach would be fully consistent with current trends. These aim to limit state monopoly, enhance the role of non-governmental actors, and focus on improving implementation of existing principles and rules of international law in the field of sustainable development. Discussions about the guardians should take place in the context of enhancing the effectiveness of existing obligations, and should not distract from that primary task. The first part of this chapter identifies the rights of future generations as recognized in existing international legal instruments, including those adopted at UNCED. We then move on to consider some practical implications which flow from a recognition of the rights of future generations. And finally, we consider what institutional or other international legal reforms might be necessary to enhance the practical application of the concept, including the desirability of establishing a guardian for future generations.

RIGHTS OF FUTURE GENERATIONS IN EXISTING INTERNATIONAL LEGAL INSTRUMENTS The concept of future generations is well known in international law, having been relied upon as early as 1893 by the US in support of its case in the Pacific Fur Seal Arbitration, and subsequently reflected in treaties, and non-binding international instruments. In the context of the dispute between Hungary and Slovakia over the construction of the Gabcikovo-Nagymaros dam on the Danube, the former has invoked the concept of preserving species for future generations as a "moral obligation" (but not an international legal obligation).3 The idea of safeguarding the needs of future generations was endorsed by each of the UNCED instruments. Interest in the subject as an international legal issue is reflected in a growing literature.4

Treaties Many early environmental treaties, adopted well before the 1972 Stockholm Declaration, invoke the need to protect the rights of future generations. The best known is probably the 1946 International Whaling Convention, which recognizes 84

Protecting Future Generations the "interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks".5 The limitations inherent in recognizing that interest without creating mechanisms for acting upon it are reflected in the massive decline of the whale population around the world. Similar expressions may be found in the 1968 African Conservation Convention,6 and the 1972 World Heritage Convention.7 More recent treaties have sought, amongst their general aims, to preserve particular natural resources and other environmental assets for the benefit of present and future generations. These address, inter alia:8 wild flora and fauna;9 the marine environment;10 essential renewable natural resources;11 the environment as a whole;12 the resources of the earth;13 natural heritage;14 natural resources;15 water resources;16 biological diversity;17 and climate change.18

Declarations and Other Non-Binding International Acts International declarations also often make frequent reference to intergenerational equity as an important aspect of the concept of sustainable development. Principle 1 of the 1972 Stockholm Declaration states that man bears "a solemn responsibility to protect and improve the environment for present and future generations", and UN General Assembly Resolution 3 5 /8 proclaims the responsibility to present and future generations is a historic one for the "preservation of nature".19 According to the preamble to the 1982 World Charter for Nature natural resources are to be used in a manner which ensures the preservation of the species and ecosystems for the benefit of present and future generations.

UNCED Each of the UNCED instruments recognizes the objective of taking into account the needs of future generations, affirming the principle of intergenerational equity. UNCED also took note of, but did not act upon, a proposal to appoint a guardian for future generations.20 Thus, Principle 3 of the Rio Declaration recognizes that the "right to development must be fulfilled so as to equitably meet developmental and environmental needs of... future generations". Under the Forest Principle, forest resources and lands should be sustainably managed "to meet the social, economic, ecological cultural and spiritual needs of... future generations."21 Agenda 21 calls for national sustainable development strategies whose goals are "to ensure socially responsible economic development while protecting the resource base and the environment for the benefit of future generations."22 The preamble to the Climate Change Convention expresses a determination "to protect the climate system for... future generations",23 and the preamble to the Biodiversity Convention similarly expresses a determination "to conserve and sustainably use biological diversity for the benefit of present and future generations." There was little, if any, discussion in the negotiations of the language here referred to which indicates what practical consequences might flow from a recognition of the needs of future generations. In each case the principle appears to have been accepted as an article of faith, drawing on pre-existing language in earlier treaty and other soft law developments.

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Conclusion From this brief survey it can be concluded that all states now accept the general principle that the activities of present generations are limited by the obligation to take into account and safeguard the developmental and environmental needs of future generations. Evidence of the broad acceptance of that principle does not, however, translate easily into prescriptions as to what the principle means in practise.

RIGHTS OF FUTURE GENERATIONS: SOME PRACTICAL IMPLICATIONS Three practical legal consequences might flow from the recognition of the rights of future generations: to influence the development of new substantive standards in international legal instruments; to construe existing obligations of a substantive nature; and to enhance the legal standing of the present generation or some of its members to bring claims before national or international courts or tribunals.

Developing New Substantive Standards It is quite clear that a large body of existing international environmental law results from the application of the principled obligation to protect the rights of future generations. Whether one takes the 1946 International Whaling Convention or the 1992 Climate Change Convention, both mandate that states are required to take measures to protect the environment of future generations. As scientific evidence becomes available, increasingly in the context of the application of the precautionary principles (see Chapter 9), it is likely that the international community will take measures to protect environmental resources for future generations. This is precisely what has happened in the context of measures to protect the ozone layer and the Antarctic. In this way, therefore, the principle can be used to assist in the creation of new substantive international legal obligations.

Construing Existing Obligations Closely related to this aspect of the practical role of the principle, is its use as an aid to construing existing international legislation. Apart from reliance on the principle to construe standing provisions (see further below) one could imagine that where a substantive obligation were ambiguous, the future generations principle could be used to shift towards an interpretation which was more likely to protect the interest of future generations. Thus, in the event of a complex interpretation such as that presented by Article 4.2 (a) and (b) of the Climate Change Convention, one might rely on the future generations principle in support of the argument that those provisions established a binding obligation on states to return their emissions of carbon dioxide and other greenhouse gases to 1990 levels by the year 2000. Of course, the principle of future generations would be but one of a range of principles to be used as an aid to construction and decision-making (see Article 3 of the Climate Change Convention).

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Standing It is in relation to the question of standing that the principle of future generations is potentially most useful. Its utility in this sense was recently illustrated in a case decided by the Supreme Court of the Philippines, Minors Oposa v. Secretary o f the Department o f Environment and Natural Resources (DENR).24 In that case, 44 minors and the Philippine Ecological Network brought an action calling on the defendant to cancel all logging permits in the country, in the context of surveys showing that only 850,000 hectares of virgin old growth rainforest were left in the country (barely 2.8 per cent of the entire land mass of the Philippines archipelago and about 3 million hectares of immature and uneconomical secondary growth forest). The defendant sought to have the complaint dismissed on the grounds that the plaintiffs had no course of action and the issue raised by the plaintiffs was a political question which properly pertained to the legislative or executive branches of government. The novelty of the case was that the petitioners asserted that they represented their generations as well as generations yet unborn.25 The court stated: “ We fin d no difficulty in ruling that they can, fo r themselves, fo r others o f their generation and fo r the succeeding generations, file a class suit. Their personality to sue on behalf o f the succeeding generations can only be based on the concept o f intergenerational responsibility in so fa r as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the rhythm and harm ony o f nature... Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation o f the country's forest, mineral, land, waters, fisheries, wildlife, offshore areas and other natural resources to be aimed at their exploration, development and utilization be equitably accessible to the present as well as fu tu re generations.

"26

The court went on: "Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the fu ll enjoyment o f a balanced and helpful ecology. Put a little differently, the minors' assertion o f their right to a sound environment constitutes, at the same time, the performance o f their obligation to ensure the protection o f that right fo r the generations to come."

Of course, it is not necessarily clear that other courts could follow the approach of the Philippines Supreme Court. Justice Feliciano, who concurred in the result, nevertheless put forward a separate opinion. He noted that "the seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment". Commenting on the Supreme Court's conclusion that the plaintiff's complaint focused on "one specific fundamental legal right - the right to a balanced and healthful ecology", Justice Feliciano agreed that such a right was fundamental in character, but disagreed with its characterization as "specific"; such a characterization did "excessive violence to language".27 Justice Feliciano suggested that in their action before the trial court on the merits of the case, the petitioners should "show a more specific legal right - a right cast in language of significantly lower order of generality than Article 11(15) of the constitution - that is or may be violated by the actions, or failures to act, of the public respondent".28 It is unclear whether other courts would reach the same conclusion as the Philippines Supreme Court. I relied upon a similar argument when acting for the 87

Part 4: Practical Legal Consequences petitioners in a case before the Scottish Court of Session involving the construction of a bridge linking the Island of Skye and the Kyle of Lochalsh, on mainland Scotland. In that case, the petitioners argued against the grant of planning permission, on the grounds that the construction of that particular bridge would interfere with the United Kingdom's obligations to protect otter populations under, inter alia, the 1979 Beme Convention on the Conservation of European Wildlife and Natural Habitats, which has been acceded to by the Eur