Intergenerational Equity : Environmental and Cultural Concerns [1 ed.] 9789004388000, 9789004387997

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Intergenerational Equity

World Trade Institute Advanced Studies Series Editor Thomas Cottier Editorial Board Krista Nadavukaren Schefer Debra Steger Markus Krajeweski Rosa Lastra Mira Burri Joseph Francois Manfred Elsig

VOLUME 4

The titles published in this series are listed at brill.com/wtia

Intergenerational Equity Environmental and Cultural Concerns Edited by

Thomas Cottier Shaheeza Lalani Clarence Siziba

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Cottier, Thomas, editor. | Lalani, Shaheeza, editor. | Siziba,  Clarence, editor. Title: Intergenerational equity : environmental and cultural concerns /  edited by Thomas Cottier, Shaheeza Lalani, Clarence Siziba. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Series: World Trade  Institute advanced studies ; Volume 4 | “This book is a collection of  legal, philosophical and historical papers selected for presentation at a  Conference of 9 October 2015, which was hosted by the Rectors’ Conference  of the Swiss Universities (CRUS) joint doctoral programme between the  Universities of Fribourg and Bern.” | Includes bibliographical references  and index. Identifiers: LCCN 2018058136 (print) | LCCN 2018059274 (ebook) |  ISBN 9789004388000 (ebook) | ISBN 9789004387997 (hardback : alk. paper) Subjects: LCSH: Law—Congresses. | Intergenerational relations—Congresses. |  Distributive justice—Congresses. | Environmental law,  International—Congresses. | Sociological jurisprudence—Congresses. Classification: LCC K246 (ebook) | LCC K246 .I573 2019 (print) |  DDC 340/.115—dc23 LC record available at https://lccn.loc.gov/2018058136

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 2405-9331 ISBN 978-90-04-38799-7 (hardback) ISBN 978-90-04-38800-0 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface VII Edith Brown Weiss Acknowledgements x Notes on Contributors xii Introduction 1 Severn Cullis-Suzuki

Part 1 Intergenerational Equity Theories 1

Equity in International Law 11 Thomas Cottier

2

All-affected, Non-identity and the Political Representation of Future Generations: Linking Intergenerational Justice with Democracy 32 Michael Rose

3

Guardians for Future Generations: Bringing Intergenerational Justice into the Heart of Policy-making 52 Catherine Pearce

Part 2 Environmental Concerns 4

Intergenerational Justice and the Concept of Common Concern in Marine Resource Allocation and Ocean Governance 67 Judith Schäli

5

Equity across Generations in International and Domestic Water Law 90 Otto Spijkers

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Intergenerational Justice: Promotion of Renewables and the Water Protection Objective 109 Karolis Gudas and Simona Weber

7

Intergenerational Climate Justice 115 Anna Aseeva

8

Looking Forward: Balancing the Role and Responsibilities of Business in Society 139 Sonia Gawlick and Jean Brice Audoye

Part 3 Cultural Concerns 9

Genocide Denialism as an Intergenerational Injustice 151 Melanie Altanian

10

Intergenerational Justice and International Migration: Some Insights from Law and Economics 163 Philip C. Hanke

11

Funding the Future: Sovereign Wealth Funds as Promoters of Intergenerational Equity 179 Xenia Karametaxas

12

Striking a Balance between the Protection of Foreign Investment and the Safeguard of Cultural Heritage in International Investment Agreements: Can General Exceptions Make a Difference? 192 Roberto Claros

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Looking Forward: Intergenerational Justice in the Context of Indigenous Rights in Canada 208 Amyn Lalji

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Epilogue: Voices of the Future for Sustainability 215 Jona David Index 219

Preface Edith Brown Weiss “What impact are we having on our children and on future generations?” As our planet shrinks, we must ask ourselves that question. Scientists warn that we are exiting the Holocene geological epoch, which has prevailed for about the last 12,000 years, and that we are entering a new geological epoch, the Anthropocene, in which humans are now the major force shaping our planet. Moreover, we are doing so faster than traditional geological processes. The carbon, nitrogen and hydrological cycles appear to be speeding up. Glaciers are melting faster than expected. If critical thresholds in the Earth’s system are exceeded, abrupt and rapid changes to the integrity and robustness of our planet could occur. More than ever, we must consider the impact of our actions on the longterm stability and health of our human environment. This makes the norm of intergenerational equity relevant as never before. It applies to our use of the environment and to the conservation of our natural and cultural resources. It is also relevant to many other activities today, indeed if not to most, whether it be health care, education, or investment practices. When a principle of intergenerational equity in international law was first considered more than thirty years ago, it departed from the traditional legal focus of determining applicable law by relating the past to the present. Rather it entitled future generations to have their interests considered in decisions today that would affect them. In the succeeding years, the principle has been referenced in opinions of individual Judges at the International Court of Justice and by the Inter-American Court of Human Rights. In more than twenty countries, the national Supreme Court and lower level courts have invoked intergenerational equity. Sometimes the decisions rely upon constitutional provisions or explicit legislative provisions on intergenerational equity. Other times, they reference the principle directly. Before 2004, there were few such cases. Since 2004, the number of judicial decisions considering intergenerational equity has increased significantly. These decisions mostly relate to four major categories: natural resources (such as forests and biodiversity), pollution, construction projects, and mining permits and operations. These developments indicate a progressive recognition of the relevance of intergenerational equity to halt or reshape activities that are harmful to future generations. Climate change poses the ultimate challenge for intergenerational equity, because our actions today have profound effects upon the climate that future

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generations will experience. The First Assessment of the Intergovernmental Panel on Climate Change (IPCC) observed in 1990 that “[e]ven if all humanmade emissions of carbon dioxide were halted in the year 1990, about half of the increase in carbon dioxide concentration caused by human activities would still be evident by the year 2100.” Since then, the worst-case scenarios for climate change have become of greater concern. Many scientists despair that effective international measures to limit global warming will be implemented in time. To prevent crossing certain critical thresholds in the climate system with potentially devastating consequences, some scientists have been exploring geoengineering technologies, either through removal of carbon dioxide or through solar radiation management techniques. These pose complicated questions for the application of a principle of intergenerational equity. On the one hand, some would argue that geoengineering applies the element of conserving options as part of intergenerational equity to prevent harm. Solar radiation management in particular could be seen as a potentially attractive alternative, especially for investors, to more effective but more expensive measures for reducing emissions of greenhouse gases. On the other hand, the consequences of such geoengineering are unknown and potentially devastating for future generations. We should not be using this technology without a thorough and careful exploration of its effect on future generations, and even then great risks and uncertainties will remain. Considering the principle of intergenerational equity in the context of climate change is urgent and requires careful analysis and consideration of the interests of various actors and the effects of our actions on future generations. Implementing intergenerational equity can be difficult. The context in which the issues arise is changing. We are now living in what may be termed a kaleidoscopic world, in which many actors beyond States participate, issues emerge quickly, and interests change rapidly. Rapid change is inherent in the system. Subnational units of governments, ad hoc coalitions, informal groups and movements and especially individuals are becoming important actors influencing the development and implementation of international law, and in carrying out (or not carrying out) its obligations. While States and the increasing array of international intergovernmental organizations are essential players, the system is much more chaotic than in previous decades. This is the new individualized and globalized world. It is inherently a bottom-up world as well as a top-down one. The emergence of a kaleidoscopic world is in part the result of the revolution in information and communications technologies. These technologies let people communicate, network and collaborate across time and place through

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Facebook, YouTube, blogs, Twitter, and their analogs in various countries. They have emerged on an unprecedented scale. As of June 2018, Tumblr alone hosted more than 420 million blogs. In WordPress, 409 million people viewed more than 21.9 billion pages during June 2018, in 120 different languages. Twitter reported 336 million monthly users in spring 2018. Twitter accounts belong to the government, head of state, or foreign minister of 172 States, and using the same categories, 169 States have official pages on Facebook. Mobile phones are ubiquitous. They are the most rapidly dispersed technology in history. About 60 percent of the world’s population owned a mobile phone by 2014, with more than 5 billion mobile phone users projected by 2019. People can use mobile phones to communicate effectively and efficiently for many different purposes across many geographical scales. The emerging kaleidoscopic world has significant implications for implementing intergenerational equity. It is imperative to recognize shared norms in order to provide cohesion and trust among all actors. In particular, all actors need to share and apply the norm of intergenerational equity and to consider future generations in relevant decisions and policies. Bottom-up efforts to implement intergenerational equity can become easier and highly significant, but the reverse is also possible. Bottom-up initiatives can significantly defeat intergenerational equity, and do so without effective governmental or other interventions. Thomas Cottier and his colleagues have produced an important, broadbased volume on intergenerational equity. The authors explore the principle of intergenerational equity in many dimensions, from the theoretical to the practical. While the main overall focus is on intergenerational equity in the context of environmental resources and cultural heritage, the authors also explore the principle in a broad array of other contexts. In the last section of the volume, they consider intergenerational justice as it applies to indigenous peoples, genocide, migration, sovereign wealth funds and foreign investment. The chapters provide at the same time a critical analysis of the issues and a consideration of the difficulties in implementing intergenerational equity. One of the many interesting points is the further development of the doctrine of the common concern of humankind, which was first articulated in legal agreements in the United Nations Framework Convention on Climate Change and the Convention on Biodiversity. As we proceed in the Anthropocene in our kaleidoscopic world, we need to explore and analyze the principle of intergenerational equity in varied contexts and to address the difficult issues in its implementation. The present book undertakes this daunting task and significantly contributes to furthering deliberations on intergenerational equity.

Acknowledgements The ability to make judgements that are grounded in solid information, and employ careful analysis should be one of the most important goals for any educational endeavour. As students develop this capacity, they can begin to grapple with the most important and difficult step: to learn to place such judgements in an ethical framework. Therein lies the formation of the kind of social consciousness that our world so desperately needs. His Highness The Aga Khan

⸪ This book is a collection of legal, philosophical and historical papers select­ed for presentation at a Doctoral Conference on October 9, 2015, which was hosted by the Rectors’ Conference of the Swiss Universities (CRUS) joint doctoral programme between the Universities of Fribourg and Bern. It addresses a vast array of topics within the meaning and scope of fairness and equity across generations and tackles – from different disciplinary perspectives – questions as to what is fair and/or just within and among generations in order to obtain a better understanding of theoretical and empirical reflections on ‘intergenerational equity’. We are grateful to the CRUS and thank the following panellists, speakers and Conference participants for their comments and remarks on papers included in this collection: Wolfgang Alschner (University of Ottawa) Samantha Besson (University of Fribourg) Elisabeth Bürgi (University of Bern) Marie-Claire Cordonier Segger (University of Cambridge) Joëlle DeSepibus (University of Bern) Christine Jojarth (Stanford University) Dannie Jost (World Trade Institute) Frédéric-Paul Piguet (Institut Biosphère) Ralph Wilde (University College London)

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The editors would like to thank 10-year-old Jona David, whose compelling speech, delivered during the second half of the Conference, is reproduced in the Epilogue. Finally, we jointly express our gratitude to Marie Sheldon, Johanna Lee and Judy Pereira of Brill Publishers. They prepared the publication most carefully.

Notes on Contributors Melanie Altanian Ph.D. candidate in Philosophy at the University of Bern. Anna Aseeva Assistant Professor, Faculty of Law, School of General and Interdisciplinary Legal Studies, National Research University Higher School of Economics, Moscow, Russia. Jean Brice Audoye Graduate Manager Dirigeant, escp Europe; real-estate consultant at Starkke. Roberto Claros Ph.D. Candidate, World Trade Institute, University of Bern and Lecturer at the Pontificia Universidad Católica del Perú. Thomas Cottier Professor Emeritus of European and International Economic Law, Senior Research Fellow, World Trade Institute, University of Bern, Adjunct Professor of Law, University of Ottawa. Severn Cullis-Suzuki Vanier Scholar at the University of British Columbia. Jona David UNESCO Voices of Future Generations Child Author, Cambridge Education Awards Pupil of the Year, Justitia Fundamentum Regnorum Junior Award Laureat and Pupil, King’s College School, Cambridge, UK. Sonia Gawlick Business Consultant at Gawlick Consulting and Instructor at Vancouver Community College. Karolis Gudas Lecturer in Energy Law at Vilnius University. Philip C. Hanke NCCR on the Move – The Migration-Mobility Nexus and Department of Public Law, University of Bern.

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Xenia Karametaxas Ph.D. Candidate, University of Geneva. Shaheeza Lalani Founding Director of the Doctoral Program at the World Trade Institute, University of Bern. Program Manager of the LL.M. in International Business Law at the University of Lausanne. Amyn Lalji Partner and Past Chair Indigenous Law Group, Miller Thomson LLP. Catherine Pearce Former Future Justice Director with the World Future Council, Hamburg, Germany. Michael Rose Post-doctoral Research Associate, Institute of Sustainability Governance, Leuphana University Lüneburg. Judith Schäli Ph.D. Candidate at the Institute of European and International Economic Law and the Graduate School of Economic Globalisation and Integration of the World Trade Institute, University of Bern. Clarence Siziba Ph.D. Candidate, World Trade Institute, University of Bern. Otto Spijkers Lecturer of Public International Law at Utrecht University, and researcher at the Utrecht Centre for Water, Oceans and Sustainability Law. Simona Weber Ph.D. Candidate at the Institute for European and International Economic Law, University of Bern; attorney in the Legal Department of the Swiss Federal Office for the Environment. Edith Brown Weiss Francis Cabell Brown Professor of International Law at Georgetown University Law Center.

Introduction Severn Cullis-Suzuki Plenary session address by Severn Cullis-Suzuki, age 12, to the United Nations Conference on Environment and Development, Rio de Janeiro in June 1992. Hello, I’m Severn Suzuki speaking for E.C.O.–The Environmental Children’s Organisation. We are a group of 12 and 13-year-olds from Canada trying to make a difference: Vanessa Suttie, Morgan Geisler, Michelle Quigg and me. We raised all the money ourselves to come six thousand miles to tell you adults you must change your ways. Coming here today, I have no hidden agenda. I am fighting for my future. Losing my future is not like losing an election or a few points on the stock market. I am here to speak for all generations to come. I am here to speak on behalf of the starving children around the world whose cries go unheard. I am here to speak for the countless animals dying across this planet because they have nowhere left to go. I am afraid to go out in the sun now because of the holes in the ozone. I am afraid to breathe the air because I don’t know what chemicals are in it. I used to go fishing in Vancouver with my dad until just a few years ago we found the fish full of cancers. And now we hear about animals and plants going extinct every day – vanishing forever. In my life, I have dreamt of seeing the great herds of wild animals, jungles and rainforests full of birds and butterflies, but now I wonder if they will even exist for my children to see. Did you have to worry about these things when you were my age? All this is happening before our eyes and yet we act as if we have all the time we want and all the solutions. I’m only a child and I don’t have all the solutions, but I want you to realize, neither do you! You don’t know how to fix the holes in our ozone layer. You don’t know how to bring salmon back up a dead stream. You don’t know how to bring back an animal now extinct. And you can’t bring back forests that once grew where there is now desert. If you don’t know how to fix it, please stop breaking it! …

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At school, even in kindergarten, you teach us to behave in the world. You teach us: Not to fight with others. To work things out. To respect others. To clean up our mess. Not to hurt other creatures. To share – not be greedy. Then why do you go out and do the things you tell us not to do? Do not forget why you’re attending these conferences, who you’re doing this for – we are your own children. You are deciding what kind of world we will grow up in…. are we even on your list of priorities? My father always says “You are what you do, not what you say.” Well, what you do makes me cry at night. You grownups say you love us. I challenge you, please, make your actions reflect your words. Thank you. A generation ago, I spoke to the world representatives at a plenary session of the UN’s Earth Summit in 1992. I was there as part of a tiny group of children called ECO, to ask those in power to remember who their negotiations would actually affect – future generations. Our entire argument could be summed up by the final line: “you grownups say you love us. I challenge you, please make your actions reflect your words.” Today, 26 years later, I am a mother. And now I know why the audience (even the security guards!) cried during that speech. I understand why people are still talking about it; why the video is still making the rounds on the internet. They are still talking about a child speaking truth to power because of the most powerful force that exists amongst humans: the power of love – love for our children, for our future generations. I don’t mean to be trite, or sentimental. I mean to be practical, in the sense of our evolutionary identity. I regard us humans as another animal species with specific characteristics that have enabled our evolutionary moment in a long, 4.3 billion year story of Life. At university I studied evolutionary biology, and learned one explanation for each generation of adults’ powerful sense of love for the future – a selfish evolutionary characteristic that is a key component of the suite of strategies that ensures the survival of our species. And today, even though current society feels exempt from evolutionary (and ecological) forces, we see and feel this powerful love for the future every day. There is still nothing that individual people love more than their children. Nothing. As another mom told me, “we would not only die for our children; we would kill for our children.” The Mother Bear instinct is strong in humans in cities and rural areas alike. And yet, we are currently living in a way that is devastating future opportunities for our children. In our evolutionary context, today’s adult generations are creating a legacy of lack of resources, climate instability and social uncertainty

Introduction

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for the future of our race. This is the conundrum of our time. Why can’t we make our actions reflect our words? Children have a keen sense of justice. They recognize and call out unfairness much more readily than adults. In Rio in 1992, my argument was based on fairness – the injustice currently being enacted towards future generations. Over the following years I continued to speak out about intergenerational equity with respect to Climate Change, environmental degradation and the social conflicts the latter will cause. As I grew up, I became a jaded teenager who came to assume that humans were inherently destructive, like a bacteria that eats all the food in its test tube, inevitably starving its own offspring. Through university degrees, I became educated in evolutionary science and ecology; scientific observations of human impact further fueled my anger. But then I remembered the Pacific Northwest Coast of Canada, where I lived. As a child, through my family’s friendships with First Nations, I had been introduced to Indigenous knowledge and systems of ecology – whole civil­izations thriving in place for well over 10 000 years. And I realized that not all human cultures are inherently self-destructive. There exist other cultures that have thrived for millennia, far longer than the Western paradigm or the Capitalist economy, that have enshrined “Intergenerational Equity” as a foundational principle of culture, and indeed, regard safekeeping the future as a sacred task. Throughout our evolutionary moment, over the past 200,000 years, humans have survived climate shifts, extinction events, migrations, diseases, and disasters. One of humanity’s strongest survival assets was foresight – the ability to observe, remember, and predict. Somehow, as humans have developed increasingly complex technology and globalized society, we have dropped this foundational principle of survival. Today, a false sense of being independent from ecosystem health has been seductive and powerful – we don’t really believe that survival is at stake. In fact it seems preposterous, extreme, and very inconvenient to the current social enterprise in which we are invested. Perhaps we have invented too many distractions to remember that we are actually on the edge of the knife.1 Today we are witnessing the results of our lack of foresight as we have committed our children to living in a time of class five hurricanes, hundred-year floods, droughts and fires every other year. Political instability due to environmental conflict is real, as the war in Syria reminds us, precipitated by a six-year drought that killed 85% of the country’s livestock, the worst drought in at least 500 years. Our scientists tell us with increasing emotion (considered scientifically unbecoming), that we are heading to the point of no return. 1  An expression and teaching from the Haida Nation: The world is as sharp as the edge of a knife. As you walk along, you have to be careful not to fall off one side or the other.

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So, how do you change the course of evolution of a species? This book is a gathering of contemporary academic writing on the efforts in society to bring some accountability to future generations back into our Western, mainstream practices. These writers show where work has already begun, and potential for change in the future. As individual humans, we still connect with the emotional arguments behind acting as if the future mattered, yet our current economic and political infrastructure often works in direct opposition with these values. We need our technical experts in law and human rights (and in all fields of expertise and skill, in every dimension) to determine the tools to transform our globalized, Western Economic system into a society whose Actions reflect our Words. This book unfolds in three parts: Part 1 introduces us to Intergenerational Equity Theories. Part 2 examines Environmental Concerns, and Part 3 considers Cultural Concerns. Thomas Cottier leads off Part 1 with a discussion of “Equity in International Law” (Chapter 1). In International Law, the concept of intergenerational relationships is rooted in the principle of Equity. Equity is at the origin of the Principle of Sustainable Development, which requires a careful assessment and balancing of social, economic and ecological interests. Cottier’s chapter describes the functions of Equity, particularly in international law and its different normative layers. He emphasizes that equity, used in the allocation of resources, can and will be of great importance in newly emerging topics in intergenerational relations. Michael Rose’s philosophical chapter (2) is about the links between intergenerational justice and democrary. There is a tension between democracy and sustainable development: while democracies are jurisdictionally limited by national borders and committed to the current interests of voters, the concept of sustainable development is committed to long-term interests that go beyond specific voting populations. What is missing is an elaborated conceptual and argumentative link both to political science and to real-world democratic politics. Adapting several concepts of democratic theory, this chapter introduces the concept of ‘proxy representation’–a conceptual foundation for considering future generations in our present-day democratic institutions. This discussion sets the stage for Catherine Pearce’s “Guardians for Future Generations” (Chapter 3). Pearce argues that policy-making has been unable to address the severe global challenges threatening the wellbeing of present and future generations, due to divisions between and within governing and administrative bodies, creating policy incoherence and emphasizing short-term targets over long-term or future interests. She proposes that the appointment of a “Guardian for Future Generations”, a position that already exists in New

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Zealand, Wales, Canada and Hungary, would help provide far-sighted policymaking that enhances the wellbeing of current and future generations. Part 2 focuses on environmental concerns. Judith Schäli begins by discussing ocean resource management and the protection and conservation of marine living resources under the current framework of the UN Convention on the Law of the Sea. Schäli scrutinizes implications of the Convention’s underlying principles, including Territorial Sovereignty and Freedom of the High Seas. She exposes how these principles have large gaps and leave marine resources vulnerable to over-exploitation, biodiversity losses and marine pollution, especially for areas beyond national jurisdictions. She suggests that ocean governance and the protection and conservation of the marine environment should fall under the Concept of Common Concern for Humankind, which gives states the legal foundation to assume responsibilities beyond their territory to protect the interests in common concern. Otto Spijkers’s discussion of “Equity across Generations in International and Domestic Water Law” (Chapter 5) follows and focuses on the Principle of Intergenerational Equity in the general framework of international water law. Spijkers explores some examples of agreements regulating the shared use of a particular watercourse, and looks to examples of the principle’s application in domestic water law. Finally, his Chapter examines domestic policies which aim to apply the intergenerational equity principle to water law. Karolis Gudas and Simona Weber’s related chapter (6) is on the promotion of renewables, the water protection objective, and European Union (EU) climate change mitigation. The authors explain how the prominent focus on climate change mitigation may leave behind broader concerns for sustainable energy production. Their chapter examines the nexus of water-energy in view of sustainable development. It analyzes the nature of the problem and ways to pursue the integration of renewable energy and water protection policy objectives within the framework of sustainable development. In Chapter 7 of Part 2, Anna Aseeva moves us completely into the realm of “Intergenerational Climate Justice”. She draws on recent examples of the Paris Agreement talks and Trump’s vivid efforts to make America’s energy potential great again. Aseeva argues that attempts to resolve the issue of climate change through the constrained channels of an international environmental treaty are inevitably limited by contemporary models of State sovereignty and market economy, as well as related visions of law-making, development, growth and wealth distribution. In her view, existing environmentalism and sustainability approaches represent linear methods that ignore the highly complex realities of climate change.

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Part 3 examines cultural concerns. It begins with a chapter (9) on genocide denial by Melanie Altanian. Altanian’s chapter addresses the question of the normative importance of genocide recognition, examining the way in which genocide denial might be considered as a perpetuation of injustice against genocide survivors and their descendants. She argues that genocide denial can be considered a continuation of genocidal violence in epistemic form, that is, an epistemic injustice, whereby members of the victim group suffer negative discrimination with regard to their credibility and intelligibility. Institutional genocide denial, then, does not just prevent societies from dealing with their genocidal past, but in the first instance constitutes renewed humiliation and violation of the epistemic authority of genocide survivors and their descendants, thus becoming an instance of intergenerational injustice. Philip C. Hanke’s chapter (10) on “Intergenerational Justice and International Migration” follows. Migration has a substantial effect on a society’s demographics, and thus also affects distribution among generations. With the advent of new forms of migration, sometimes referred to as mobility in order to emphasize the more temporary and dynamic nature of these patterns, Hanke discusses how the legal migration regimes in place at different levels, that is, national policy as well as bilateral, regional, and multilateral agreements, affect transfers between generations. These various agreements and institutional arrangements thus have an effect on the demographics and economics of the host country and the country of origin, with complex distributions taking place. Hanke’s chapter is followed by Xenia Karametaxas’s chapter (11) on funding the future through Sovereign Wealth Funds (SWFs). SWFs are public investment vehicles owned and managed directly or indirectly by governments and set up to achieve a variety of macroeconomic purposes. Some SWFs are created explicitly as saving funds for future generations, with the objective to convert non-renewable assets into a more diversified portfolio of assets and, therefore, to transfer wealth from one generation to another. Karametaxas focuses on characteristics of SWFs in terms of their potential to be catalysts for change and tackles the question of establishing explicit duties to invest in sustainability. Roberto Claros ends Part 3 with a chapter (12) on the safeguarding of cultural heritage in International Investment Agreements (IIAs). In investment treaty arbitration, cultural policies may be seen as interfering and colliding with international obligations regarding the protection of foreign investments and investors under IIAs, and Claros explores and compares possible alternatives for the drafting of IIAs in order to strike an appropriate balance between the aim to protect foreign investment, on the one hand, and the necessity to preserve a regulatory space for the protection of cultural heritage, on the other.

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Looking at the ecological data, it is clear that our globalized, capitalist society has some transformation to do, in order to re-establish our children’s viability in the future. Informally, climate scientists are now anticipating a 4–6 degree Celsius increase in average global temperatures by the end of the 21st century. What this means is that the environment will not be inhabitable for humans in many regions of the world. It further means that my grandchildren will be trying to make their lives and living in a world much less hospitable than today’s. There are several things on the side of future generations, including the tools, strategies and examples cited in this volume. We need to use these tools as levers for transformation. There is also the existence of other, older, Indigenous cultures that have survived for far longer than our current paradigm. These cultures have suffered greatly from globalization and colonization. Yet even after all that we have done, if we are respectful and ask, they may help us reconnect to a deeper knowledge and wisdom for how to be responsible humans. And finally, the ecology and nature of planet Earth is incredibly resilient. The power of regeneration of this planet is profound, and must also be leveraged. As I am writing this, I look out of my window at the Pacific Ocean. Here, in front of the Haida village of Skidegate, the gray whales have returned to feed on krill and rest for a few weeks during their migration up from Mexico’s Baja towards the Bering and Chukchi seas. Their annual voyage is the longest migration of any known mammal on Earth – a round trip of 16,000–22,000km. These whales have not always returned; my husband’s parents, born here, recalled that during their youth, they never saw gray whales in front of the village. This is likely because of the commercial whale hunt. From the mid-1800s on, gray whales were hunted for their oil, causing their numbers to seriously decline. Eventually, commercial whaling was banned by the International Whaling Commission in 1949. Some 70 years later, this Northern Pacific population has regenerated, and these gray whales are back in substantial numbers not seen for generations. These ancient giants are proof that if given a chance, nature has incredible power to regenerate. There is much on our side, but time is of the essence. Let us act on the tools outlined in this compilation to transform our society from one that is sacrificing the future for our current enjoyment, to one where intergenerational justice has returned to being of our sacred human duties. Let us return to being a species that protects the future of those who are most precious to us: our children.

Part 1 Intergenerational Equity Theories

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Chapter 1

Equity in International Law Thomas Cottier 1 Introduction Law as a homocentric concept relates to the living. It addresses status, rights and obligations of humans being alive. While the inception of life remains controversial, the legal status of humans begins with life. Deaths leave behind their legacy and influence the fate of the living. While living, humans shape society, law and leave their heritage behind, yet devoid of rights beyond the protection of dignity and the law of inheritance. Once passed away, human lives essentially disappear from the realm of law while their works continue to enjoy legal status and protection until traces disappear. Past interests are entrusted to the living. Equally, future and unconceived unborn generations of humans are without the realm of law. Equally, the law does not project effects on future members of humankind. They also are in the hands and trust of the living, and the fate of future generations depends upon those acting on their behalf. They hold the future generations in trust. Likewise, forms of plant and animal lives enjoy protection as a matter of property rights during their life­ spans. Goods enjoy protection as long as they exist; no projections are made into the future except for the protection and care for exploited unexploited natural resources which – again are held in trust for future generations. It is not a coincidence that the concern for future generations was primarily expressed in terms of environmental law. It is here that the law developed the notion of intergenerational justice and equity in a domestic context. The main issue has been whether trees and other natural resources have standing, and who of the living holds them in legal trust and should be entitled to defend their interests in the law of the living.1 The law of the living is equally reflected in international law. States enjoy rights and have obligations as long as they exist; again the inception of statehood remains controversial; they come and go in history and territories pass on to different entities. The same holds true for international organisations and other, non-state juridical persons. Humans are protected or enjoy rights as 1  Christopher D. Stone, “Should Trees Have Standing?–Towards Legal Rights for Natural Objects.” Southern California Law Review 45 (1972): 450–501.

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individuals only indirectly, mainly by means of human rights or treaties to the extent that countries extend direct effect to them. In death, persons are essentially devoid of rights while again their works may enjoy continued protection under international law. Likewise, the unconceived and unborn are outside the realm of law. General public international law does not protect legitimate expectations of future generations except by treaties and instruments particularly seeking to safeguard their interests. Similarly, plant and animals not in existence enjoy protection only to the extent that legal instruments are particularly created to this effect, such as the 1992 United Nations Convention on Biodiversity2 or the 1992 Framework Convention on Climate Change, and the more recent 2015 Paris Agreement.3 These instruments and their aspirations seek protection of the legitimate interests of today’s children and future and unborn generations’ essential conditions of life on the planet. To the extent that intergenerational justice and equity is addressed in international law, it so far pertains to the realm of environmental law, protecting natural resources. Beyond that, the law has essentially remained limited to the living, to equal opportunities among living generations, and – if at all – to distributive justice among them. Other areas discussed in this book, relating to representation, culture and genocide discuss the matter in philosophical and political terms. With the 1987 Brundtland Report, a fundamentally new approach was introduced: the principle of sustainable development. It seeks to balance the rights of the living and of future generations, mainly expressed in terms of ecological preservation of natural resources of this world.4 Principle 3 of the 1992 Declaration on Environment and Development, established the linkages to intergenerational equity: “[t]he right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”5 Policy measures should seek a proper and careful balance of economic, social and ecological interests and concerns. It is a 2  Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993);https://www.cbd.int/convention/ (accessed 26 March 2018). 3  United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 7771 UNTS 107 (entered into force 21 March 1994); Paris Agreement, opened for signature 22 April 2016; https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII7-d&chapter=27&lang=_en&clang=_en; http://unfccc.int/2860.php (accessed 26 March 2018). 4  “Our Common Future”: Report of the World Commission on Environment and Development, transmitted to the General Assembly by the Secretary-General on 4 August 1987, UN Doc. A/42/427. 5  Rio Declaration on Environment and Development, principle 3. On this principle, see Claire Molinari, ‘Principle 3: from a Right to Development to Intergenerational Equity’, in

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matter of developing appropriate impact assessments of measures planned and implemented.6 The principle of sustainability or sustainable development has been largely accepted in an international process of claims and responses ever since its inception. It essentially holds in trust legitimate interests of future and otherwise unprotected generations. It obliges the living to take these interests into account and to seek intergenerational justice and equity. The eight Millennium Development Goals (MDGs)7 and the 17 targets and 169 supporting goals of the 2015 Sustainable Development Goals (SDGs)8 bring these aspirations to expression in benchmarks which current and future policies should achieve, both at home and internationally. They form part of soft law and sustainability as such only applies to the extent prescribed and implemented in treaty law. It remains controversial whether the principle has achieved the status of a general principle of law also recognised in international law or in customary international law. The question thus arises as to what extent the principle of equity, well established in international law, is able to make a self-standing contribution to the goals of intergenerational justice. The principle, for a long time, has been ignored and was superseded by aspirations of justice expressed in terms of human rights. More recently, however, it has enjoyed a renaissance in the field of natural resources and their allocation among nations. It is submitted that the principle provides an important foundation to further sustainability, challenging established patterns of law limited to the interests of the living. In shaping the law towards intergenerational justice, recourse to the principle of equity and its different layers is of importance. It assists in adjusting the conservative body of law enabling it to respond to today’s challenges and offers a particular methodology suitable to assess and solve complex regulatory issues. Equity developed a particular legal methodology in international law which is

Jorge E. Viñuales (editor), The Rio declaration on Environment and Development: A Commentary, 139–156 (Oxford: Oxford University Press, 2015). 6  Katja Gehne, Nachhaltigkeit als Rechtsprinzip (Mohr Siebeck 2011); Elisabeth Bürgi Bonanomi, Sustainable Development in International Law Making and Trade International Food Governance and Trade in Agriculture (Cheltenham: Elgar, 2015); Marie-Claire Cordonier Segger, Sustainable Development in International Law, in David Armstrong (editor), Routledge Handbook of International Law (Abingdon-on-Thames: Routledge, 2009). 7  See United Nations, The Millennium Development Goals Report 2015 (New York 2015). 8  U N GA Res/10/1 Transforming our world: the 2039 Agenda for Sustainable Development (21. October 2015); http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang =E (accessed 26 March, 2018).

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equally relevant for intergenerational relations. This chapter summarizes the history and evolution of equity.9 2

Traditional Functions and the Decline of Equity

Equity (équité, Billigkeit) has been a companion of the law ever since rulebased legal systems emerged. It offers a bridge to justice where the law itself is not able to adequately respond. Equity essentially remedies legal failings and shortcomings. Rules and principles of law are essentially and structurally of a general nature. Their prescriptions predictably apply to future constellations. They seek to steer and influence the future conduct of humans. They create expectations as to lawful conduct and stabilize human relations. Yet, the law is not complete. Sometimes answers are lacking, or application of the law fails to bring about satisfactory results in line with moral or ethical values underlying a contemporary society. It is here that the companion of the law enters the stage. Aristotle authoritatively described completing and rectifying functions of equity within the law in the Nicomachean Ethics: [A]ll law is universal, but there are some things about which it is not possible to speak correctly in universal terms…. So in a situation in which the law speaks universally, but the issue happens to fall outside the universal formula, it is correct to rectify the shortcomings, in other words, the omission and mistake of the lawgiver due to the generality of his statement. Such a rectification corresponds to what the lawgiver himself would have acted if he had known. That is why the equitable is both just and also better than the just in one sense. It is not better than the just in general, but better than the mistake due to the generality. And this is the very nature of the equitable, a rectification of its universality.10 The functions of equity, however, are not limited to a static concept of law reflected in Aristotle’s conception. It goes beyond completing and corrective functions. All legal systems face the problem that rules and principles that were shaped and developed in the past may no longer be suitable to achieve 9  The following substantially draws upon Equity revisited: an introduction, Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law 1–41 (Cambridge: Cambridge University Press 2015), reproduced with permission. 10  Aristotle, Nicomachean Ethics, trans. Martin Oswald, Book 5 Chapter 10 (New York: BobbsMerrill, 1962), pp. 141–142.

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justice under changing conditions. Moral and ethical attitudes and perceptions change as society changes. Society changes as factual conditions change due to economic or technological developments, which create new regulatory needs. For centuries, equity has served the purpose of facilitating legal adjustment and bringing laws in line with contemporary perceptions of justice and regulatory needs. The function of equity therefore equally entails the advancement of the law in light of new regulatory needs. It offers a prime response – laying foundations for new developments which eventually find their way into the body of legal institutions. Historical and comparative studies expound the point. A study published in 1972 and edited by Ralph A. Newman recalls that the functions of equity are inherent to all the World’s legal systems.11 They can be found in Greek law (Epieidia), in Roman law (Aequitas), but also in the Judaic tradition referred to as justice (Elohim) or mercy (Jhyh). They can be found in Hindu philosophy in the doctrine of righteousness (Dharma), and also in Islamic law (Istihsan). The companion is universal, and an inherent ingredient to all law based upon justice and its inherent shortcomings and deficiencies, with a view to respond to new challenges, bring about change and adjust to altered circumstances in society to which law and justice properly have to respond. Although the functions exist in different forms, they share a common relationship to rules and principles, as equity acts and enters the stage under the facts of a particular case, seeking to do justice. Ever since, equity therefore has been an instrument of the judiciary, dealing with human conduct and the specific facts of a particular situation. It inherently entails an active judicial role, either completing, or even altering law in the pursuit of ideals of justice and fairness. Equity, in other words, amounts to an important ingredient for the legitimacy of the overall legal system. Absent the possibility to take recourse to it, justice may miscarry and the authority of law as the prime organizer of human co-existence and cooperation may be undermined. From these traditions, which reflect the shared and common needs of all legal systems, the Roman law concept of Aequitas, was most influential as a foundation for equity in Western European law, which, in turn, later provided the basis for the development of equity in international law under the Westphalian State system. In 1861, Sir Henry Maine identified legal fiction, equity and legislation to be, in this order and sequence, the main drivers of

11  Ralph A. Newman (ed.), Equity in the World’s Legal Systems: A Comparative Study (Brussels: Bruylant, 1972).

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legal change and adaptation to societal developments and need.12 Legal fiction in a broad sense entails the assumption that law remains unchanged while in fact it evolves in case law and judicial law-making, the existence of which is carefully denied. Allegedly, judges merely find the law. They do not make the law: “[w]e do not admit that our tribunals legislate; we imply that they have never legislated, and we maintain that the rules of English common law, with some assistance from the Court of Chancery or from Parliament, are coextensive with the complicated interests of modern society”.13 The second engine of change, according to Maine, is equity which brought together jus gentium and the law of nature. “I think that they touch and blend through Aequitas, or Equity in its original sense; and here we seem to come to the first appearance in jurisprudence of this famous term, Equity”,14 the essence of which has been proportionate distribution and based upon that, a sense of levelling: “I imagine that the word was at first a mere description of that constant levelling or removal of irregularities which went on wherever the praetorian system was applied to the cases of foreign litigants”.15 And it is from here that it developed its ethical contents based upon natural law in Roman times and assisted in adapting praetorian law. Finally, it crystallised into rigidity, a process which could equally be observed in English equity centuries later on. “A time always comes at which the moral principles originally adopted have been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid, as unexpansive, and as liable to fall behind moral progress as the sternest code of rules avowedly legal”.16 Legislation, finally, amounts to the third form of law-making, stemming from an autocratic prince or a parliamentary assembly, owing their force to the binding authority of the legislator which allows adjustment to new realities independent of its principles. “The legislator, whatever be the actual restraints imposed on it by public opinion, is in theory empowered to impose what obligations it pleases on the members of a community”.17 It would seem that this triad of fiction, equity and legislation is inherent to all legal cultures, albeit, of course, in varying compositions. The role of equity was dependent upon, and complementary, to these other law-making functions and instruments of legal progress and adaptation. It therefore did not 12  Sir Henry Maine, ‘Ancient Law’ in Ernest Rhys (ed.), Everyman’s Library: History: [no.] 734 (London et al.: Dent, 1917 p. 15 [reprinted 1977]). 13  Id. p. 20. 14  Id. p. 34. 15  Id. p. 34. 16  Id. p. 40. 17  Id. p. 17.

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evolve in a uniform and static manner in different legal constituencies. The functions of equity varied as the underlying legal concept and traditions of fiction and legislation varied. Yet, they shared a common trait of being closely wedded to individual cases and constellations.18 The more rigid the underlying law, the more active the role of equity became. Different concepts emerged. English equity emerged under the rigidity of the common law and power constellations, leading to the independent and centralized judiciary of the Lord Chancellor. English law witnessed the emergence of an entirely separate legal system under equity, applied in parallel and by different judicial authorities, the task of which was to also secure legal uniformity and centralisation (equity courts).19 Based on a case-by-case approach, new legal institutions such as the trust emerged under this title, responding to new economic and societal needs. In addition, a set of principles; maxims of equity, emerged, constituting essential due process requirements and standards of justice.20 The two traditions were merged only in the 19th Century and became part of one and the same Anglo-Saxon and Anglo-American common law. In other systems, the law was able to absorb most of the change itself. The codification of civil law on the European continent was a response to excessive recourse to equity, which had often been perceived as arbitrary in prerevolutionary continental European aristocracy.21 The very idea of codification and democratic legislation emerged as a prime tool of the adaptation of positive law and apparently left much less room for broadly defined equitable doctrines. It was generally agreed that equity henceforth would be confined to equity infra legem, praeter legem and, exceptionally contra legem. Civil law was seen to develop in a way that was much less in need of recourse to equity outside the law, due to codification and, subsequently, to the evolution of constitutional law and the process of judicial review of legislation. While 18  See id. p. 11. 19  Harold G. Hanbury in Jill E. Martin (ed.), Hanbury & Martin: Modern Equity (London: Thomson, Sweet and Maxwell, 2009). 20  These maxims comprise: (i) Equity will not suffer a wrong to be without a remedy; (ii) Equity follows the law; (iii)He who seeks equity must do equity; (iv) He who comes to equity must come with clean hands; (v) Where the equities are equal, the law prevails; (vi) Where the equities are equal, the first in time prevails; (vii) Equity imputes an intention to fulfil an obligation; (viii) Equity regards as done that which ought to be done; (ix) Equity is equality; (x) Equity looks to the intent rather than the form; (xi) Delay defeats equities; (xii) Equity acts in personam, see Hanburry & Martin, Modern Equity, 15th. Jill E. Martin (ed.) 25–32 (London: Sweet and Maxwell, 1997. 21  See Georges Boyer, ‘La notion d’équité et son rôle dans la jurisprudence des Parlements’ in: Mélanges offerts à Jacques Maury, tome II droit comparé, théorie générale du droit et droit privé 257–282 (Paris: Librairie Dalloz et Sirey, 1960).

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English equity thus produced a host of principles and maxims, its counterparts emerged under different titles elsewhere within the law. The role of equity is much more limited in civil law. The classical description of equity infra, praeter and contra legem reflects the idea of a complete and codified system, and found its way into international law on the basis of the continental law tradition. Similar conclusions may be drawn from the analysis of other systems of law, though they have been less influential in international law. Under most codes, equity’s function remains vague and largely unexplored. Equity in continental law, therefore, was marginalized. As legal development progresses, concerns originally voiced over equity are being absorbed and integrated into the law. They no longer belong, strictly speaking, to the realm of equity infra, praeter or contra legem. They develop into principles and institutions of their own, much as English equity formalized over time and developed into a parallel body of law, complementing common law.22 The principle of proportionality, of good faith and the protection of legitimate expectations – more particularly of estoppel and acquiescence – and the doctrine of abuse of rights are prime examples of equitable doctrines turned into legal concepts and principles of their own. Once established, there is no longer a need to seek recourse through equity, and indeed principles are no longer directly based upon, or related to, equity in terms of legal foundations. Thus, the process of constitutionalisation of law and States during the 18th and 19th Centuries and the establishment of democratic representation and ongoing legislation was bound to reduce the role and functions of equity. Constitutionalism and the advent of fundamental rights fundamentally altered the equation. During the 20th Century, standards of justice in equity were increasingly replaced by recourse to human rights. They emerged, in particular after World War II, as the primary sources and standards of justice. They not only reduced the role of natural justice, but also of equity. In essence, constitutional judicial review under the bill of rights no longer made recourse to equity a necessary tool for remedying injustice and to assume the role of leveling, distributive justice and levelling in the way perceived by Maine. Law and legislation became subject to specific standards of justice and fairness embodied in the Constitution. The relationship of constitutional law and equity is hardly discussed in the literature.23 Yet, it is evident that the former 22  Hanbury, n. 19. 23  Rare and passing references to the relationship of constitutional law and equity can be found in Mario Rotoni, ‘Considerations sur la fonction de l’équité dans un système de droit positif écrit’ in: Aspects Nouveaux de la Pensée Juridique, Recueil d’études en hommage à Marc Ancel, vol. I, Etudes de droit privé, de droit public et de droit comparé 43, 46 (Paris: Pedone, 1975); Paul Kirchhof, ‘Gesetz und Billigkeit im Abgaberecht’ in Norbert

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has increasingly absorbed what in previous periods of pre-constitutional time equity was expected and assigned to bring about. Today, the adage of summum ius summa iniuria is no longer able to play to its full effect as it is tempered and controlled by human rights and constitutional law. Equity is no longer required to dampen the rigour of the law. Moreover, today’s international law itself increasingly exerts corrective functions in adapting domestic law to international commitments. Human rights provide important yardsticks, but largely lack effective judicial protection on the international level except for regional laws, such as the European Convention on Human Rights. Principles of non-discrimination can be enforced in the WTO and can help remedy inequitable domestic legislation. In Europe, European Community law emerged as a new and additional and corrective layer based upon a new sui generis legal system. Checks and balances increasingly extend to multilevel governance, assuming traditional functions of equity. 3

The Rebirth of Equity in the Law of Natural Resources

Whilst the trend in domestic legal systems has been a decline in the use of equity – for it is no longer used to its fullest extent – it is interesting to observe that the situation is entirely opposite in public international law. International arbitration was frequently asked to decide on the basis of law and equity, and the 19th and early 20th Centuries saw a stream of decisions referring to equity which often formed a basis of law in treaties ever since the 1794 Jay Treaty referred to justice, equity and international law.24 Perhaps the most important precedent was the Cayuga Indians arbitration, granting legal status in equity to a tribe who otherwise would have remained without rights and entitlement. “When a situation legally so anomalous is presented, recourse must be had to Achterberg et al. (ed.), Recht und Staat im sozialen Wandel, Festschrift für Hans Ulrich Scupin zum 80. Geburtstag 775 784 (Berlin: Dunker & Humblot, 1983); Oscar Schachter discusses the relationship in the context of natural justice: “The fact that equity and human rights have come to the forefront in contemporary international law has tended to minimize reference to „natural justice” as an operative concept, but much of its substantive content continues to influence international decisions under those other headings”, International Law in Theory and Practice 55 (Dordrecht et al.: Martinus Nijhoff, 1991). 24  See Karl Strupp, ‘Das Recht des internationalen Richters, nach Billigkeit zu entscheiden’, in F. Giese und K. Strupp (eds.) (1930) 20 Frankfurter Abhandlungen zum Völkerrecht at 17; ibid. ‘Le droit du juge international de statuer selon l’équité’ (1930) 33 Recueil des cours de l’Académie de Droit International. Vladimir-Duro Degan, L’Equité et le Droit International (The Hague: Martinus Nijhoff, 1970).

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generally recognized principles of justice and fair dealing in order to determine the rights of the individuals involved. The same considerations of equity that have repeatedly been invoked by the courts where strict regard to the legal personality of a corporation would lead to inequitable results or to results contrary to legal policy may be invoked here. In such cases courts have not hesitated to look behind the legal person and consider the human individuals who were the real beneficiaries”.25 The arbitrator was Professor Roscoe Pound who himself observed a decline in equity as it was increasingly consumed in law. He called upon lawyers and courts to fight for equity as an ever new port of entry of justice in a positivist legal order, “Ihering has told us that we must fight for our law. No less must we fight for equity.”26 The 1909 Grisbadarna Case,27 a maritime boundary delimitation case between Norway and Sweden, was decided upon historical patterns of conduct and uti possidetis, but was, according to Friedmann, in reality based on balancing the equities of that particular case.28 Recourse to equity also was implicit, rather than explicit, in the judgements of the ICJ, perhaps owing to the newly introduced clause of decision-making ex aequo et bono, which separated law and equity, but was never formally invoked under Article 38 of the Statute of the ICJ. Traces of equity and equitable doctrines can be found in different cases. It was implicit, in particular, in the reasoning of the 1937 Water from the Meuse case.29 Judge Manley Hudson in his concurring opinion, expounding the doctrine of equity, described the ruling as an application of maxims of equity in international law.30 It is submitted that the founding precedent of international environmental law, the Trail Smelter Arbitration,31 was strongly influenced by considerations of equity.

25  C  ayuga Indians (Great Britain) v. United States, reprinted in: Reports of International Arbitral Awards, Vol. VI, pp. 173–190, 179. 26  Roscoe Pound, The Decadence of Equity 5 Columbia Law Rev. 20–35, 35 (1905). 27  Arbitral award rendered on 23 October 1909 in the matter of the delimitation of a certain part of the maritime boundary between Norway and Sweden, reprinted in Scott (ed.), The Hague Court Reports (1909), pp. 487, 121 (English translation). 28  Wolfgang Friedmann, ‘The Contribution of English Equity to the Idea of an International Equity Tribunal’ in The New Commonwealth Institute Monographs Series B.N. 5 (London: Constable, 1935) at 35; The case is discussed below in Chapter 8(II)(A)(1). 29  The Diversion of Water from the Meuse (Netherlands v. Belgium), Judgment from 28 June 1937, PCIJ, Series A./B., No. 70, 1925, 4–89. 30  Id, pp. 76–79. Wilfred Jenks considers the case the locus classicus of equity of that period, The Prospects of International Adjudication 316–427, at 322 (London: Stevens, 1964). 31  Trail Smelter Case (United States, Canada), 16 April 1938 and 11 March 1941, UNIRIAA Volume 3, pp. 1905–1982.

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The interwar period witnessed an increased and explicit interest in equity in legal writing. In the United States, L.B. Orfield published a seminal article on equity in international law in 1930.32 In Europe, Karl Strupp published his work on equity in international arbitration in 1930,33 reflecting the weaknesses of the positivist tradition.34 In 1935, Max Habicht drew renewed attention to the power to adjudicate ex aequo et bono.35 These efforts culminated in the joint proposal to establish an International Equity Tribunal, based upon principles of cooperation by which decisions reached under distinct and separate positive public international law could be reviewed.36 The idea was supported at the time by eminent international lawyers within the Commonwealth Institute, A.S. de Bustamante, Karl Strupp, Wolfgang Friedmann and Georg Schwarzenberger. The proposal never saw the light of day, but equity was able to make a comeback after World War II in legal doctrine. After the war, Wilfried Jenks offered an extensive review of the case law relating to equity in 1964.37 Vladimir Degan submitted his analysis of arbitration

32  Lester B. Orfield, ‘Equity as a Concept of International Law’, 18 Kentucky Law Journal, 31–57 (1930). 33  Karl Strupp, ‘Das Recht des internationalen Richters, nach Billigkeit zu entscheiden’, in F. Giese und K. Strupp (eds.) (1930) 20 Frankfurter Abhandlungen zum Völkerrecht; Karl Strupp, ‘Le droit du juge international de statuer selon l’équité’ (1930) 33 Recueil des cours de l’Académie de Droit International. For a discussion see Christopher R. Rossi, Equity and International Law: A Legal Realist Approach to International Decisionmaking (Irvington New York: Transnational Publishers 1993) 145–148. For further references to authors of this period see also Degan, n 24, 15–40. 34  The intellectual effort criticizing positivism in international law was led, at the time, by the Commonwealth Institute; see Norman Bentwisch et al., ‘Justice and Equity in the International Sphere’ in The New Commonwealth Institute Monographs, Series B.N. 1 (London: Constable, 1936); for a discussion see Rossi n.33, p. 145. 35  Max Habicht, ‘The Power of the Judge to Give A Decision Ex Aequo et Bono’, The New Commonwealth Institute, Monographs Series B No 2 (London: Constable, 1935). 36  A.S. de Bustamante and Karl Strupp, ‘Proposals for an International Equity Tribunal’ in The New Commonwealth Institute Monographs Series B.N. 4 (London: Constable, 1935); Wolfgang Friedmann, ‘The Contribution of English Equity to the Idea of an International Equity Tribunal’ in The New Commonwealth Institute Monographs Series B.N. 5 (London: Constable, 1935); Georg Schwarzenberger and William Ladd, ‘An Examination of an American Proposal for an International Equity Tribunal’ in The New Commonwealth Institute Monographs Series B.N. 3 (London: Constable, 1936); see also Rossi, n33, p. 146. 37  Wilfred Jenks, The Prospects of International Adjudication (London: Stevens, 1964), pp. 316–427; see also Wilfred Jenks, ‘Equity as a part of the law applied by the Permanent Court of International Justice’, 53 Law Quarterly Review, 519–524 (1937).

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in 1970,38 and Charles de Visscher published a book on the subject in 1972.39 The review of these works shows a wide and diverging view on the topic and the relationship of law and equity in a broad array of topics of international law, ranging from treaty interpretation to unilateral acts, state responsibility, diplomatic protection, procedural law, territorial disputes and natural resources – in particular access to water. While at this point in time – prior to the 1969 North Sea Continental Shelf cases – it is fair to say that no consolidated doctrine and approach existed and the difference to decision-making ex aequo et bono was unclear, authors and cases showed a clear interest in equity and a common concern for individualised justice (Einzelfallgerechtigkeit) being the main feature and function of equity also within the body of public international law. Given the post war developments in constitutional law, human rights protection and the emergence of general principles of law essentially detached from equity, we can understand that the main role of equity in 20th and 21st Century international law turns to issues relating to the allocation of natural resources – a field neither governed by established legal institutions nor human rights. Indeed, it is striking to observe that recourse to equity implicitly or explicitly emerged in the context of allocation of natural resources among nations. This became equity’s primary field of application while most other areas remained untouched by it. The 1951 Fisheries Jurisdiction case took into account a number of factors and in many ways anticipated methodologies subsequently developed under the doctrine of equitable principles and relevant circumstances in the 1969 North Sea Continental Shelf case as well as the rich subsequent case law by the court and in international arbitration.40 The Helsinki Rules on equitable principles relating to the allocation of nonnavigable waters, adopted in 1966 by the International Law Association,41 introduced the concept of equitable principles relating to resource allocation in Articles IV and V of the instrument. It was subsequently taken up in treaty making by the International Law Commission of the United Nations.42 38  Vladimir-Duro Degan, L’Equité et le Droit International (The Hague: Martinus Nijhoff, 1970). 39  Charles de Visscher, De L’Equité dans le Règlement Arbitral ou Judiciaire des Litiges de Droit International Public (Paris: Editions A. Pedone, 1972). 40  For a detailed analysis see Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge: Cambridge University Press 2015). 41  See International Law Association (ed.), Report of the Fifty-second Conference, held at Helsinki, 1966 (London: 1967), pp. 484–532. 42  The effort resulted in the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted by the United Nations General Assembly Resolution 51/229 of 21 May 1997.

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The renaissance of equity in the law of natural resources in the second part of the 20th Century can be partly explained by the fact that the international law of co-existence remained a primitive system of law, devoid of effective legislative means that were able to adjust to new needs, values and economic or scientific developments. The lack of a swift and timely legislative response remains one of the main traits of international law. The principles of international law established in the Post World War II Order, such as the prohibition of the use of force, the principle of non-intervention, the obligations to peaceful settlement of disputes and permanent sovereignty over natural resources provide constitutional pillars of World Order and contemporary justice, but are often not in a position to settle complex issues on a case-by-case basis. Human rights only emerged in international law after World War II. Even today, they are still far from providing constitutional functions, in the sense that they may alter international and domestic law, assuming the role of equity. The general principles, stemming from equity and maxims of equity, which have found their way into international law and practice (good faith, pacta sunt servanda, estoppel, acquiescence and others), are not able to address all of the contentious issues that have not been dealt with sufficiently in customary law or treaty law. Again, as occurred in domestic law centuries before, recourse to equity was called upon in order to address new and pressing issues that arose in response to changes in the international community. An answer was found in turning to what will amount to equitable principles as key tools addressing pressing issues of distributive justice. Recourse to equity in jurisprudence and resource allocation in return triggered renewed interest in the functions of equity in contemporary international law. The reception of civil law concepts of equity infra, praeter and contra legem was basically recognised in international law, also by lawyers rooted in the common law tradition, albeit reluctantly.43 While many scholars dealt with equity in the context of maritime boundary delimitation, general works on equity comprise the book by Christopher Rossi, stressing the lawmaking role of courts and tribunals applying equity – very much a reminder of the fictions of the judicial role expounded by Sir Henry Maine more than 100 years before.44 Critical legal studies turned to equity in order to demonstrate the generic lack of objectivity of international law and the problem of subjectivity. Koskenniemi’s work, first published in 1989, was strongly inspired by the alleged imprecision and vagaries of equity and equitable principles 43  See Michael Akehurst, ‘Equity and General Principles of Law’ 25 International and Comparative Law Quarterly, 801 (1976). 44   Christopher R. Rossi, Equity and International Law: A Legal Realist Approach to International Decisionmaking (Irvington New York: Transnational Publishers 1993).

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in the World Court’s jurisprudence.45 The case law on maritime boundary delimitation gave rise to comprehensive legal opinions on equity in modern international law. Judge Weeramantry developed an extensive treatise on equity in the context of his separate opinion in the 1993 Jan Mayen case, essentially expounding the classical functions of equity, infra, praeter and contra legem and its different functions and methodologies in the administration of international justice.46 In conclusion, equity as applied by courts and tribunals, , has found its particular place in the context of the allocation of natural resources. It is here that the renaissance took place while other fields of traditional equity, in particular procedural equity, were absorbed in constitutional and international public law by the renaissance of human rights or developed into self-standing legal principles in customary international law. 4

The Quest for Global Equity

The renaissance of equity in the international law of natural resources inspired a broader movement of taking recourse to equity in the process of decolonization from the 1960s to 1980s and the effort to reshape international law and remedy the flaws of the colonial period. The period and process of decolonization did not merely cause the number of actors and sovereign states on the stage of international law and relations to proliferate: what were formerly largely domestic matters under colonial rule became issues and problems of international law, particularly under the umbrella of the Charter of the United Nations. This created the North-South debate. Colonial experience caused authors from the newly independent states to call for a new international economic order and a new concept of international law built upon a law of cooperation, enshrined in the United Nations Charter, and broad precepts of equity.47 The international law of coexistence, largely structured along 45  Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, Reissue with a new epilogue (Cambridge: Cambridge University Press, 2005) (originally published by the Finnish Lawyer’s Association in 1989). 46  Case Concerning the Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, Separate Opinion of Judge Weeramantry, I.C.J. Reports 1993, pp. 1, 177–245. 47  Prakash Narain Agarwala, The New International Economic Order: An Overview (New York: Pergamon Press, 1983); Ram P. Anand, New States and International Law (Delhi: Vikas Publishing House, 1972); Mohammed Bedjaoui, Towards a New International Economic Order (New York: Holmes and Meier, 1979); Francisco V. Garcia-Amador, ‘The Proposed New International Economic Order: An New Approach to the Law Governing

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colonial rule, experienced considerable difficulties in adjusting to the new map and values, and a largely positivist application by and in the ICJ reinforced suspicions, at the time.48 The term and notion of equity, similarly used in economic theory as a counterpart to economic efficiency, became a symbol and code word for new aspirations of justice in international law in order to remedy existing inequities in the allocation of wealth, income and opportunities between industrialized and developing countries. It became a basis for the quest of enhanced cooperation and development aid. It firmly established and depicted the issue of distributive justice. True, this age old theme existed before in international law, as it exists in any legal order. It was, for example, part of territorial boundary delimitations, the allocation of fishing rights or irrigable water or market shares before. Yet, it only now emerged as a global theme considered as affecting the very basics of international law. The symbol of equity helped to establish what Stone called “in terms at any rate of paper declarations and programs the establishment of standards of human welfare as [an] area of central guidance”.49 Equity assumed an important programmatic and symbolic role beyond and outside the province of law properly speaking. It became a synonym of justice at large. It essentially turned to diplomacy and the process of law-making, seeking to remedy the wrongs of the past. It sought, in other words, to enter the realm of international legislation, beyond its traditional province of the judiciary discussed above. Developing countries sought progress on the basis of national sovereignty and engaged in the quest for resource allocation and market access on the basis of equity. Oscar Schachter observed that in 1974, “the idea of equitable sharing of resources among nations had moved, almost suddenly, to the center of the world’s stage”.50 Important documents such as successive Development Decades, the 1974 Declaration on the Establishment

Nationalizations and Compensations’ (1980) 12 Lawyer of the Americas, 1; 1, Kamal Hussein (ed.), Legal Aspects of the New International Economic Order (London: Frances Pinter, 1980); see generally Patricia Buirette-Maurau, La Participation du Tiers-Monde à L’Elaboration du Droit international (Paris: Pichond et Durand-Auzias, 1983). 48  The controversial ruling of the ICJ in the South West Africa Cases essentially triggered the debate, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgement, ICJ Reports 1966, p. 6. 49  Julius Stone, ‘A Sociological Perspective on International Law’, in Roland St. J. Macdonald and Douglas M. Johnston (eds.), The Structure and Process of International Law (The Hague et al.: Martinus Nijhoff, 1983), pp. 263, 301 note 66. 50  Oscar Schachter, Sharing the World’s Resources at vii (New York: Columbia University Press, 1977).

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of a New International Economic Order51 and, in the same year, the Charter of Economic Rights and Duties of States52 rely upon equity and sovereignty as their prime foundation and the justification for bringing about distributive justice and welfare among nations.53 The New International Economic Order, combining enhanced market access for developing countries and stronger interventionism at domestic and international levels, inspired an order “which shall correct inequalities and redress existing injustices, make it possible to eliminate the widening gap between the developed and the developing countries and ensure steadily accelerating economic and social development in peace and justice for present and future generations.”54 A debate on a right to development was launched.55 Subsequently, the movement for sustainable development and ecology embraced equity. Edith Brown Weiss developed the concept of intergenerational equity.56 She laid the doctrinal groundwork of what would eventually result in sustainable development emerging as a primary foundation of international environmental law. In 2002, the International Law Association adopted the ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, placing the principle of equity at the heart of sustainable development. Principle 2.1 states: The principle of equity is central to the attainment of sustainable development. It refers to both inter-generational equity (the right of future generations to enjoy a fair level of the common patrimony) and intragenerational equity (the right of all peoples within the current generation of fair access to the current generation’s entitlement to the Earth’s natural resources.57 51  U N General Assembly Resolution 3201 (S-VI) of 1 May 1974 (UN document A/ RES/S-6/3201). 52  U N General Assembly Resolution 3281 (XXIX) of 12 December 1974 (UN document A/ RES/29/3281). 53  See P. van Dijk, ‘Nature and Function of Equity in International Economic Law’ 7 Grotiana New Series, 5–48 (1986). 54  The Preamble of UNGA Res. 3201 (S-VI). 55  See e.g. Paul de Vaart, Paul Peters and Erik Denters (eds.), International Law and Development, Dordrecht (Boston, London: Martinus Nijhoff, 1988). 56  Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Tokyo: The United Nations University, 1989); Edith Brown Weiss ‘Our Rights and Obligations to Future Generations for the Environment‘198–206 84 American Journal of International Law (1990). 57   Annex to Resolution 3/2002, Sustainable Development, ILA, Report of the 70th Conference, New Delhi, (London 2002) pp. 22, 26.

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With intergenerational equity, a new and powerful symbol was created. Equity’s role was no longer confined to the allocation of resources among nations. Excessive and careless exploitation of resources due to technological advances increasingly threatens the balance of nature and has brought about the danger of both the exhaustion of resources and also of substantial damage to natural and human environments. Increasingly, equity has become a symbol, synonymous with sharing the world’s resources, not merely amongst existing, but also amongst future generations within and outside national boundaries. The 1992 United Nations Agenda 21 refers to it as an agenda for change, both in the traditional sense of allocating resources between rich and poor, and also between present and future generations.58 The term of intergenerational equity by now was firmly adopted. Similarly, the Convention on Biological Diversity59 calls for an equitable sharing of genetic resources in this sense.60 At the same time, throughout these periods of international law, defense for the newly gained independence and self-determination perpetuated the very classical concept of national sovereignty. It was reinforced by the principle of self-determination and non-interference in domestic affairs. In fact, the quest for a new international law soon resulted in a defence of overwhelmingly traditional concepts, and therefore the core of international law has not fundamentally changed for this reason.61 The classical precepts of international law, based upon sovereignty, independence, non-intervention and international cooperation are still predominant in shaping international relations at large. In this coexistence of programmatic claims to global equity and of classical precepts of international law based upon sovereignty and independence, the impact of equity, if at all, remains indirect most of the time. It would seem that the principle of sustainable development amounts to the most direct emanation of equity in recent developments of international law.

58  See Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 (UN document A/CONF.151/26/Rev.l [Vol. I], Annex II). 59  Supra n 2. 60  Id. Article 1. 61  See generally Patricia Buirette-Maurau, La Participation du Tiers-Monde à L’Elaboration du Droit International (Paris: Pichond et Durand-Auzias, 1983).

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The Legal Nature of Equity

5.1 Different Layers A comparison between the global aspirations of equity in reshaping the World Order and its functions in dispute settlement, both discussed above, readily reveals that equity operates on different normative levels. Equity as a norm of political and moral aspiration of justice, often powerfully influencing political agendas and perceptions, is largely beyond the realm of law and the legal sphere, properly speaking.62 Global justice, in these terms, needs to be distinguished from operational equity, as it finds itself, as an ideal and programme, on a different normative layer which is not accessible in the operation of international law in negotiations and dispute settlement. It lacks the basic qualities of being wedded to a particular context. It influences the law as it influences perceptions of justice which in return may eventually redefine rights and obligations. To the extent that aspirations of global equity are expressed in declarations and resolutions of international organizations, they form part of soft law. Non-binding in principle, they nevertheless create legitimate expectations as to conduct promised which may find legal protection under the principle of good faith. To the extent that aspirations of global equity enter treaty law, equity may form part of the preamble which should be taken into account in the process of interpreting operational provisions. To the extent that equity enters operational provisions, the legal nature changes. Equity becomes part of the law. It is here that the recourse to equity or to equitable principles or equitable solutions informs subsequent processes of negotiations or dispute settlement in the process of implementing such provisions. On this level, equity may also emerge in customary international law. It may, alternatively, find its way into the law as a general principle of law, forming the starting point, influencing and shaping the law. Yet, whatever the source or legal operation of equity, it essentially remains wedded to individual constellations, to negotiations and to judicial settlement and case law. The Aristotelian doctrine has prevailed and proven appropriate. Equity cannot operate in a vacuum, but depends upon a particular problem which needs to be solved. While its programmatic functions remained limited, it developed prominently within a particular and precise context. The finding confirms that operational equity, as a legal principle, essentially requires an inductive approach. Ever since equity has influenced the course of law and international law by being applied and used in the context of specific issues 62  The normative difference is clearly expressed in Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, 9th ed. vol. I 43–44 (London/New York: Longman, 1996).

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within a particular framework, it has worked bottom-up, and thereby contributed to the evolution of individual fields of law. 5.2 A Source of New Legal Principles Over time, repeated recourse to equity in like or comparable constellations led and will lead to new principles and rules; at some point, these rules and principles will become part of the law and so will leave the realm of equity properly speaking. As discussed, this holds true for principles of natural justice, specific maxims of equity, proportionality and of protecting good faith and legitimate expectations. Estoppel and acquiescence are examples in point. Today, we add the principle of sustainable development, emanating from intergenerational equity. Whether these principles continue to be part of equity, or whether they have a life of their own, is assessed differently. Principles derived from equity partly continue to be part of equity: partly they are discussed independently henceforth. Oscar Schachter thus distinguishes different manifestations of equity: (i) equity as a basis of individualized justice tempering the rigours of strict law; (ii) equity as a consideration of fairness, reasonableness and good faith; (iii) equity as a basis for certain specific principles of legal reasoning, in particular estoppel, unjust enrichment and abuse of rights; (iv) equitable standards for sharing natural resources; (v) equity as a broad synonym for distributive justice to justify demands for economic and social arrangements and redistribution of wealth.63 Similarly, Thomas Franck in 1995 surveyed the development of equity in the international system from the turn of that century, discussing: (i) equity as an instance of “law as justice”, encompassing such concepts as “unjust enrichment”, estoppel, good faith and acquiescence; (ii) equity as a mode of introducing justice into resource allocation, distinguished into corrective equity, “broadly conceived equity” and “common heritage equity”, all the while stressing the difference between equitable decisions and decisions ex aequo et bono.64 Other authors, in particular Jörg Paul Müller and Robert Kolb, address the protection of good faith and legitimate expectations independently of equity. These principles operate, according to those authors, in their own right and terms.65 Katja Gehne found sustainable 63  Oscar Schachter, International Law in Theory and Practice 50–65, in particular 55–56 (Dordrecht et al.: Martinus Nijhoff Publishers, 1991). 64  Thomas M. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995). 65  See Jörg Paul Müller, Vertrauensschutz im Völkerrecht (Köln, Berlin: Carly Heymanns Verlag, 1971); Elisabeth Zoller, La Bonne foi en Droit International Public (Paris: Editions A. Pedone, 1977); Robert Kolb, La bonne foi en droit international public: Contribution à E’Etude des Principes Généraux de Droit 109 (Paris: Presse Universitaire de France, 2000).

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developments more in human rights than in intergenerational justice.66 As a practical matter, the difference is not of substantial importance. Invocation of more specific principles, such as estoppel, no longer depend upon recognition as equitable principles but are principles of law, and of international law, in their own right. At the same time, it is still reasonable to group them under equitable doctrines as they often contract positive rights and obligations and continue to exert their corrective functions. It is more important to demarcate equity in terms of justiciable and non-justiciable layers and components. The most important function of equity remains to be operative in new territories where rules are lacking or inappropriate to apply in a particular context, and yet fair and just answers need to be found. 5.3 The Methodology of Equity Modern equity in international law brings a new legal methodology to the table and the bench. The case law of maritime boundary delimitation developed a sophisticated and complex methodology of balancing different principles distilled, and recognising different factors and circumstances, which need to be taken into account under the particular facts and configuration of a case. This methodology expressed in international law what was called topical jurisprudence, different from simply applying rules and exceptions. Recourse to equity implies that solutions and judgments are carefully built and developed in applying relevant principles, relevant circumstances and factors.67 It offers an avenue to approach complex problems and conflicts, the settlement of which need to be left to a case by case assessment in dispute settlement, but also negotiations, taking into account relevant factors to be determined on the basis of respective foundations of the regulatory field at stake. Negotiators agreeing on treaty text invoking equity or equitable principles essentially delegate decision-making to further negotiations or dispute settlement in which precedents may play an important role. It implies that the matter is inherently justiciable. Such findings on modern equity reflect the traditional function of doing justice in a particular case. They are not only of importance with a view to still unsettled maritime boundaries: the approach is suitable for many areas entailing problems of distributive justice, such as allocation of territorial jurisdiction, the allocation of fresh water rights, navigable rivers and perhaps clean air, the allocation of compensation, the assessment of subsidies, countervailing duty determination in WTO law and anti-trust law. It is submitted that the 66  Supra n 6 pp. 113–114. 67  For a detailed analysis see Cottier supra n 40 pp. 602–690.

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methodology can also be applied in the context of intergenerational equity and the principle of sustainable development when interests of future generations, held in trust, need to be taken into account and balanced with the interests of the living and their need for distributive justice. Intergenerational equity can develop particular principles, factors and circumstances which need to be taken into account within the constraints of sovereignty and selfdetermination of nations. These principles and factors will need to be sector and area-specific; as we learn from equity in maritime boundary delimitation, they cannot be defined once and for all. Some of them may be identified on the basis of subsequent contributions to this volume, addressing diverse walks of life, all of importance and interest to future generations. Acknowledgements A special tribute is owed to Shaheeza Lalani who initiated this project within the framework of the doctoral school of the World Trade Institute and led the project with the able assistance of Clarence Siziba. Both commented on the paper and secured overall coherence of the volume.

Chapter 2

All-affected, Non-identity and the Political Representation of Future Generations: Linking Intergenerational Justice with Democracy Michael Rose 1 Introduction There is a tension between democracy and sustainable development: while democracies are jurisdictionally limited by national borders and are committed to the current interests of voters, the concept of sustainable development transcends these spatial and temporal boundaries. According to the most popular and politically powerful definition of sustainable development by the Brundtland Commission, “[h]umanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs”.1 This understanding implies the pursuance of justice (or equity) both between current (global) generations (intragenerational justice) and between present and future generations (intergenerational justice).2 In 1989, Edith Brown Weiss most prominently outlined an elaborated concept of intergenerational equity and demanded political representation of future generations, e.g. by designating commissioners or ombudsmen for future generations, to ensure its implementation.3 For her, “[i]ntergenerational equity calls for equality among generations in the sense that each generation is entitled to inherit a robust planet that on balance is at least as good as that of previous generations”.4 She proposes three basic principles of intergenerational equity, implying respective intergenerational (or planetary) rights and 1  World Commission on Environment and Development (WCED), Our Common Future: Report of the World Commission on Environment and Development (New York, Geneva: United Nations General Assembly, 1987), § 27. 2  The issue of intragenerational justice is not an exclusive one to sustainable development and is therefore neglected in the further course of the article for the benefit of parsimony. 3  Edith Brown Weiss, In Fairness to Future Generations. International Law, Common Patrimony, and Intergenerational Equity (Tokyo, Dobbs Ferry: Transnational Publishers, 1989), 119–124. 4  Edith Brown Weiss, “Our Rights and Obligations to Future Generations for the Environment,” The American Journal of International Law 84, no. 1 (1990), doi: 10.2307/2203020, 200. © koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_004

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obligations: First, the conservation of options, i.e. sustaining the natural and cultural resource base; second, the conservation of quality, i.e. passing on the planet in no worse condition than that in which it was received; and third, the conservation of access, i.e. guarding and providing equal (rights of) access to the legacy of past generations.5 Even if the urgent issue of intergenerational justice is well addressed both in philosophy and ethics, due to the mentioned tension, the conceptual and argumentative link to political science, democracy, and real-world politics is still too weak. The aim of this paper is to strengthen and, where necessary, build this link. We, therefore, have to deal with the major conceptual stumbling blocks towards the political institutionalisation of intergenerational justice that are present in philosophy as well as in political science. In order to stabilise the ethical foundation of the call for institutional political consideration of future generations, we first have to discuss the main philosophical argument against the moral and political consideration of future generations, the so called ‘non-identity problem’. With regard to the institutional political consideration of future generations, I will reject the nonidentity problem as invalid. Second, I will introduce the main democratic theoretical argument in favour of the political consideration of future generations, the so called ‘all-affected principle’, and I will reply to the critique against its application to future generations. The all-affected principle states that everyone who will be affected by collectively binding decisions should have a voice in making them.6 ‘Being affected’ can mean different things: it can be interpreted as ‘causally affected’ or as ‘legally bound’.7 However, both interpretations are applicable to future generations. Firstly, due to the expanded impact of man, our descendants will be causally affected by what we do. In order to validate this, it is not even necessary to evoke extreme cases like the long-term effects of climate change or nuclear waste disposal. More precisely, every reasonable political decision will work into the future. Secondly, future people who will be born into a jurisdiction will have to follow the rules that are made or approved there today, at least as long as they are not able to change them. Every law is made to bind the future. Third, when it comes to meeting the claim of democracy to consider all affected (interests), usually the concept of political representation is brought 5  Ibid, 201–202. However, this article will address the procedural dimension of the political consideration of future generations, rather than the substantive dimension. 6  Cf. e.g. Robert E. Goodin, “Enfranchising All Affected Interests, and Its Alternatives,” Philosophy & Public Affairs 35, no. 1 (2007), doi:10.1111/j.1088–4963.2007.00098.x. 7  Ludvig Beckman, “Democracy and Future Generations: Should the Unborn Have a Voice?,” in Spheres of Global Justice, ed. Jean-Christophe Merle (Dordrecht, London: Springer, 2013).

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up. At first sight, this makes sense regarding future generations, since the unborn are not yet able to politically participate directly by themselves. In consequence, democratic theorists and activists call for the political representation of future generations. Unfortunately, the categories of our standard concepts of political representation, like elections, authorisation, accountability, communication, and responsivity are not compatible with contemporarily unapproachable, not yet existent constituents like future generations. Hence, we have to develop a new concept of political representation that is consistent with these kinds of constituents. This new concept will be called ‘proxy representation’, since proxies are surrogates of variables or persons that are per se unmeasurable (see statistical methods), or unapproachable (in our case), respectively.8 Further discussion of the non-identity problem, the all-affected principle and the political representation of future generations begins with a preliminary discussion regarding our understanding of future generations as distinguished from other affected groups, and the implications of their political consideration. 2

Future Generations

We need to first define future generations and intergenerational justice, for these definitions are of great significance for the following analysis. An elaborate discussion of the terms, ‘future generations’ and ‘intergenerational justice’ can be found at chapter 3 of Joerg Tremmel’s Theory of Intergenerational Justice.9 Tremmel rightly argues that a generation should be “referred to as a ‘future generation’ if none of its members is [not yet] alive at the time the reference is made.”10 Who a member of a future generation is, depends on the timing of the observer’s speech. Whoever is born immediately after T0 (hereinafter referred to as ‘first future generation’), or a hundred years later (hereinafter referred to as ‘later future generations’), is a member of future generations. Intergenerational Justice then is “justice between people who lived in the past, people alive today, and people who will live in the future.” This paper does not discuss our moral relationship with the dead, but the one with people who will be born in the future.11 8   This article ends with a list of institutions representing future generations today (i.e. proxies) that were identified with the help of the concept of proxy representation. 9   Joerg Chet Tremmel, A Theory of Intergenerational Justice (London, Sterling, VA: Earthscan, 2009). 10  Ibid., 24, my emphasis. 11  Ibid., 22.

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What follows from Tremmel’s definition of future generations? On the one hand, this contemporary ‘asynchronicity of being’ results in the impossibility of future generations’ immediate influence on us, and the lack of a relationship with them at T0. On the other hand, even if the generations do not overlap at T0, immediately after T0 we observe overlapping lifetimes of large parts of the contemporary generation (all people alive at T0) and some members of the first future generation. Having said that, the people born immediately before T0 (i.e. members of the present generation) and the ones born immediately after T0 (i.e. members of the first future generation) share almost the same lifetime and are of similar age. However, the ultimate difference of existence at T0 remains. It is quite easy to recognise that the genuine interests of later future generations are, as a rule, not explicitly considered in today’s democratic decision-making processes. But the same holds true regarding the genuine interests of first future generation: politicians are first and foremost obliged to their contemporary constituency, who can vote them into and out of office, and not to some rather abstract theoretical constituents that cannot exert any influence today. That means that there still is a qualitative difference between members of the first future generation and children and future selves of members of today’s generation. We see children, build an emotional relationship with them, and we recognise their need for protection; their parents and the wider society usually identify with their well-understood self-interests, at least in our modern democratic societies.12 Children exist, future generations do not. Children have natural advocates, and can – to a certain degree – speak for themselves: they are, as such, an important part of our lifeworld (Lebenswelt in German); their interests are usually politically considered, at least better than the interests of future generations. The same is true for our future selves. Even if the future identities of the present generation’s members may not be directly considered in contemporary political decision-making processes, they benefit from their indirect representation through the current selves, i.e. voters and their representatives. Naturally, we care more for our own future well-being than for the well-being of yet intangible future generations. To put it bluntly: if we discount the future and make democratic decisions that fall back on us (i.e. our future selves) in the future, it is our own fault, but if we make collective decisions today that will affect not yet existing future generations, we do have a moral problem

12  Gregory S. Kavka and Virginia L. Warren, “Political Representation for Future Generations,” in Environmental Philosophy: A Collection of Readings, ed. Robert Elliot and Arran Gare (St. Lucia, Queensland, New York: University of Queensland Press, 1983), 26–27.

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involving not only ourselves, but other future humans, i.e. a problem of intergenerational justice.13 However, when it comes to the substance of the political consideration of future generations’ interests, we can expect that future generations may benefit from long-term policies that are actually implemented for the benefit of children or future selves of the contemporary generation. Nonetheless, these benefits are more or less coincidental and a positive side effect of the political consideration of the current generation’s interests. Furthermore, when there is a conflict of interests between future generations and the current generation (including children and future selves), e.g. in case of a policy that only benefits the current generation and imposes costs on the members of future generations, there is a lack not only of formal, but also of substantive political consideration of future generations. From the viewpoint of intergenerational justice, there is a need for modification of our current political institutional frameworks that enables the political consideration of future generations’ interests in our present-day democratic decision-making process. There is a need for democratic innovations, i.e. for new institutions for future generations. The first philosophical stumbling block towards such democratic innovations is the non-identity problem. 3

Non-Identity Problem and Future Generations’ Interests

If institutions responsible for the political consideration of future generations are set up, it is first of all necessary to answer the non-identity problem (NIP) that questions the moral relevance of future generations as such. The NIP states that future individuals cannot be morally wronged by us since their very identity depends on today’s public policies, inasmuch as these policies indirectly causally contribute to the compilation of genes that determines the specific future individual that will come into existence. According to this proposition, at what time which specific sperm fertilises which ovum depends on many factors, some of which are influenced by policies. Therefore, even if we massively compromise the quality of life of future individuals, for example, by damaging the environment, these specific future individuals would not even come into existence without our damaging policies, and that is why they cannot be wronged if they still live a life that is worth living.14 13  Ibid., 29–30. 14  Thomas Schwartz, “Welfare Judgments and Future Generations,” Theory and Decision 11, no. 2 (1979), doi:10.1007/BF00134359; Gregory S. Kavka, “The Paradox of Future

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Literature provides plausible proposals on how to deal with the NIP in order to uphold the moral relevance of future generations. Bypassing the NIP constitutes one possibility. Jeffrey Reiman and Michael MacKenzie propose abstracting from specific individuals by referring solely to rights, interests and attributes of future generations that can be ascribed to all human beings regardless of their specific individuality.15 Clare Heyward takes the same path in order to avoid problems with the application of the all-affected principle to future generations.16 Per Ariansen furthermore argues that the comparison of a policy option with the option of never having been born anyway is a ‘category mistake’. Ariansen therefore suggests viewing future generations as place holders for individuals, similar to offices and positions that are already provided with rights and obligations.17 Questioning the provability of the NIP is another option. Joerg Tremmel rejects the abstention from specific future individuals and introduces the butterfly effect argument: like the butterfly effect in chaos theory, the NIP refers to causalities that are possible, but not verifiable. A certain policy with adversarial effects on posterity is one of many factors that may, but does not have to influence the timing of conception. According to Tremmel, it is impossible to determine specific effects of specific policies on specific personal identities.18 A further argument introduced here is the ‘arbitrary status quoargument’. To get the gist of the argument, it is necessary to first explicitly refer the NIP to the question of implementing institutional mechanisms that ensure the consideration of future generations in our current demo­cratic decisionmaking processes. If I put myself in the shoes of an apologist of the NIP, I Individuals,” Philosophy & Public Affairs 11, no. 2 (1982); Derek Parfit, “Future Generations: Further Problems,” Philosophy & Public Affairs 11, no. 2 (1982). 15  Jeffrey Reiman, “Being Fair to Future People: The Non-Identity Problem in the Original Position,” Philosophy & Public Affairs 35, no. 1 (2007); Michael K. MacKenzie, “Future Publics: Long-Term Thinking and Farsighted Action in Democratic Systems,” Dissertation Thesis at the Faculty of Graduate and Postdoctoral Studies, University of British Columbia, accessed January 15, 2014, https://circle.ubc.ca/bitstream/handle/2429/45169/ ubc_2013_fall_mackenzie_michael.pdf?sequence=1, 116–17. 16   Clare Heyward, “Can the All-Affected Principle Include Future Persons? Green Deliberative Democracy and the Non-Identity Problem,” Environmental Politics 17, no. 4 (2008), doi:10.1080/09644010802193591. 17  Per Ariansen, “Beyond Parfit’s Paradox,” in Future Generations and International Law, ed. Emanuel Agius and Salvino Busuttil (London: Earthscan, 2013 [1998]). 18  Joerg C. Tremmel, “Das Nicht-Identitäts-Problem – ein schlagendes Argument gegen Nachhaltigkeitstheorien?,” in Perspektiven nachhaltiger Entwicklung: Theorien am Scheideweg, ed. Judith C. Enders and Moritz C. Remig, 1st ed., Beiträge zur sozialwissenschaftlichen Nachhaltigkeitsforschung 3 (Marburg: Metropolis, 2013), 189–202.

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would argue that a specific future individual would not exist without our current policies. As far as that future individual would counterfactually intervene into the current political decision-making process via new institutional mechanisms, the intervention would make the existence of this specific individual impossible. In this sense, it is not in the interest of any specific individual to be considered in today’s democratic decision-making process, for the consideration of the future individuals’ ostensible interests might alter the policy output and thereby the specific individuals that will come into being in the future. But what happens if we invert the status quo? According to the NIP, can we deinstitutionalise institutions that introduce future generations’ interests into our current political decision-making process? No, for from the viewpoint of the NIP the abolishment of such institutions would alter the constellation of interests in the current democratic decision-making process, for the interests of future generations (e.g., in sustainable development) would no longer be introduced. This in turn would alter the policy outputs, and as a result, the identity and thereby the existence of specific future individuals. If such institutions already exist, the specific future individuals do have an existential interest in the sustained operation of these institutions in order to avoid any alternation of the policies that will bring them into existence as specific individuals. Employing the NIP, the moral evaluation of institutions for the political consideration of future generations depends on whether they already exist or not. The NIP merely preserves the status quo and it does not care for the moral qualities of that status quo. This mere dependence on the status quo is somehow arbitrary and ethically deficient. By contrast, if we imagine a counterfactual tabula rasa state of reality where institutions for the political consideration of future generations are existent and inexistent at the same time, the institutionalisation of such institutions would clearly be the morally superior option. Furthermore, from a pragmatic point-of-view, the philosophical curiosity of the NIP loses its relevance when it comes to the practice of the political consideration of future generations’ interests. This is because the individualspecific interests of future generations cannot be introduced into the political decision-making process anyway, since the holders of these interests are not yet individualised. We are only able to introduce more general interests that can be plausibly attributed to future generations. Gregory Kavka and Virginia Warren argue that we are able to make reasonable, probabilistic estimates and forecasts of the future impact of today’s policies, as well as future generations’ interests, that yield results better than pure chance.19 19  Kavka and Warren, “Political Representation for Future Generations,” 24–25.

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For example, Dennis Thompson claims that we should at least safeguard future generations’ right of self-determination, i.e. freedom and opportunities and stable democratic institutions.20 Furthermore, basic needs are widely regarded as objective and time-independent.21 Dieter Birnbacher assumes that future people will have the same physical basic needs as we do, i.e. drinking water, oxygen, healthy food, and protection against diseases, pollutants and natural disasters. He also assumes they will have the same psychological needs as us, i.e. affection, security and recognition.22 Therefore, natural lifesupport systems as well as technical, scientific and cultural resources, which enable future generations to overcome crisis and develop further, should be sustained.23 A further decisive interest is subjective well-being, which does not fully depend on objective well-being.24 It is also plausible to assume that future generations will have an interest in the current generation’s investment in a resilient ecosystem, economy and society as well as in serious future studies and policy impact assessments. Moreover, they will not want us to make policies today that postpone costs into the future without yielding benefits in the future, too. A further argument brought forward by philosophers and law scholars is that future people will want to enjoy the same rights as us. Hence, they argue in favour of future generations’ future universal human rights, which bring about corresponding obligations on us to care for these rights today.25 So, there is no convincing argument to neglect the political consideration of future generations’ interests for reasons of identity and interests.

20   Dennis F. Thompson, “Representing Future Generations: Political Presentism and Democratic Trusteeship,” Critical Review of International Social and Political Philosophy 13, no. 1 (2010): 22–34, doi:10.1080/13698230903326232. 21  Tremmel, A Theory of Intergenerational Justice, 98–99. 22  Dieter Birnbacher, “Langzeitverantwortung – das Problem der Motivation,” in Langzeit­ verantwortung: Ethik, Technik, Ökologie, ed. Carl F. Gethmann and Jürgen Mittelstrass (Darmstadt: Wissenschaftliche Buchgesellschaft, 2008), 26–27. 23  Ibid., 27. 24  Ibid. 25  Vittorio Hösle, “Dimensionen der ökologischen Krise: Wege in eine generationengerechte Welt,” in Handbuch Generationengerechtigkeit, ed. Jörg Tremmel, 2nd ed. (München: Ökom, 2003), 139; Benedek Javor, “A Speechless Mass Behind Sustainability,” in Ethical Prospects: Economy, Society, and Environment, ed. László Zsolnai, Zsolt Boda and László Fekete, Humanities, Social Science and Law (Springer) (Dordrecht: Springer, 2009), 235; Ulrich K. Preuß, “Die Zukunft: Müllhalde der Gegenwart?,” in An den Grenzen der Mehrheitsdemokratie: Politik und Soziologie der Mehrheitsregel, ed. Bernd Guggenberger and Claus Offe (Opladen: Westdeutscher Verlag, 1984), 235; UNESCO, Declaration on the Responsibilities of the Present Generations Towards Future Generations (Paris: UNESCO); Tremmel, A Theory of Intergenerational Justice, 46–62.

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All-Affected Principle

The main reason why some democratic theorists call for the political consideration of future generations in today’s democratic decision-making processes is the all-affected principle.26 The all-affected principle, as a democratic basic concept, claims that everyone who will be affected by collectively binding decisions should have a voice in making them.27 Or, as Nadia Urbinati and Mark E. Warren state with reference to modern political theorists like Dahl, Gould, Habermas, Held, and Young: “[D]emocracy [is] any set of arrangements that instantiates the principle that all affected by collective decisions should have an opportunity to influence the outcome.”28 Mark Warren and Dario Castiglione therefore define democracy as “empowered inclusion of those affected by collective decisions”.29 For Anton Pelinka, the all-affected principle, as a defence against heteronomy, is an essential part of the basic ethics of democracy.30 The battle call of the American War of Independence, “no taxation without representation”, is an instance of the virtue of the all-affected principle both in the history of ideas and in the history of the real world.31

26  For this section on the all-affected principle, cf. also Michael Rose, “Constitutions, Democratic Self-Determination and the Institutional Empowerment of Future Generations: Mitigating an Aporia,” in Intergenerational Justice Review, no. 2 (2016): 57–59. 27  Beckman, “Democracy and Future Generations,” Goodin, “Enfranchising All Affected Interests, and Its Alternatives,” Torbjörn Tännsjö, “Future People, the All Affected Prin­ ciple, and the Limits of the Aggregation Model of Democracy,” in Hommage à Wlodek: Philosophical Papers Dedicated to Wlodek Pabinowicz, ed. T. Ronnow-Rasmussen et al. (2007), accessed July 27, 2012, http://www.fil.lu.se/hommageawlodek/site/papper/Tannsjo Torbjorn.pdf; Dennis F. Thompson, “Democracy in Time: Popular Sovereignty and Temporal Representation,” Constellations 12, no. 2 (2005), doi:10.1111/j.1351–0487.2005.00414.x. 28  Nadia Urbinati and Mark E. Warren, “The Concept of Representation in Contemporary Democratic Theory,” Annual Review of Political Science 11, no. 1 (2008): 395, doi:10.1146/ annurev.polisci.11.053006.190533. 29  Mark E. Warren and Dario Castiglione, “Rethinking Democratic Representation: Eight Theoretical Issues,” Prepared for delivery to “Rethinking Democratic Representation”, May 18–19, 2006 Centre for the Study of Democratic Institutions, University of British Columbia, accessed May 22, 2014, http://www.politics.ubc.ca/fileadmin/user_upload/ poli_sci/Faculty/warren/Rethinking_Democratic_Representation_May_2006.pdf, 18, original emphasis. 30  Anton Pelinka, “Die ethischen Grenzen der Demokratie,” in Ethik und Technik, ed. Hermann Knoflacher and Michael Schopf (Wien, Berlin: Lit Verlag, 2009), 188. 31  Please note that, even if the all-affected principle is a major argument in favour of the political consideration of future generations, its general role and implications for the theory and practice of both democracy and representation are still disputed in the scientific community.

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The real empirical affectedness of future generations by our actions is a major argument in intergenerational ethics and democratic theory.32 However, the application of the all-affected principle to future generations comes under pressure from two directions. First, Geoffrey Brennan questions the relevance of the problem by stating that “over the past three centuries or so it has been pretty much routine that each generation has done better than its predecessor.”33 The idea behind this statement is that future generations are only positively affected and, therefore, the consideration of future generations is dispensable. Having said that, even if there is an intergenerationally increasing prosperity, this does not suspend the all-affected principle and its application to future generations, for an empirical argument cannot invalidate a normative argument. This can be easily illustrated by an analogy: from the perspective of democratic theory, a well-intentioned dictator is not democratically justified by the fact that he successfully cares for the material well-being of his subordinate citizens. From the perspective of the all-affected principle, both dictatorship and the exclusion of an affected group imply a democratic deficit. Nevertheless, if Brennan is empirically right, this would weaken the demand for an institutional political consideration of future generations from an everyday-morality point-of-view. There are three points to be made here. First, even if Brennan’s evaluation of recent history is right, this positive evaluation should not be universalised and extrapolated.34 Many philosophers and scientists do not share Brennan’s optimism regarding the future.35 Second, the 32  See e.g. Gustaf Arrhenius, Future Generations and the All-affected Principle (Stockholm, 2010), http://people.su.se/~jejo7008/arrhenius.pdf; Andrew Dobson, “Representative Democracy and the Environment,” in Democracy and the Environment: Problems and Prospects, ed. William M. Lafferty and James Meadowcroft (Cheltenham, UK, Brookfield, Vt., US: Edward Elgar, 1996); Hans Jonas, Das Prinzip Verantwortung: Versuch einer Ethik für die technologische Zivilisation (Frankfurt a.M.: Insel Verlag, 1984 [1979]); Claus Leggewie, “2050: Die demokratische Frage heute,” in Politik im Klimawandel: Keine Macht für gerechte Lösungen?, ed. Suzanne S. Schüttemeyer, 1st ed. (Baden-Baden: Nomos, 2011); Thompson, “Representing Future Generations: Political Presentism and Democratic Trusteeship,” Tremmel, A Theory of Intergenerational Justice; Dieter Birnbacher, Verantwortung für zukünftige Generationen (Stuttgart: Ph. Reclam, 1988). 33  Geoffrey Brennan, “Discounting the Future, Yet Again,” Politics, Philosophy & Economics 6, no. 3 (2007): 277, doi:10.1177/1470594X07081298. 34  Eerik Lagerspetz, “Rationality and Politics in Long-Term Decisions,” Biodiversity and Conservation 8, no. 1 (1999): 152, doi:10.1023/A:1008821427812. 35  See, e.g., Stephan M. Gardiner, “Protecting Future Generations: Intergenerational BuckPassing, Theoretical Ineptitude and a Brief for a Global Core Precautionary Principle,” in Handbook of Intergenerational Justice, ed. Joerg C. Tremmel (Cheltenham, U.K., Northampton, Mass: Edward Elgar, 2006); Javor, “A Speechless Mass Behind Sustainability,”

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developments in recent history were contingent. The Cold War, for example, could have become much more dangerous and destructive than it did. And history shows no linear positive developments in all cultures. Third, if we apply our definition of current and future generations, Brennan’s hypothesis does prove wrong, if we refer T0 to, e.g., the year of 1933 in Germany. The political decisions of the current generation (people alive at T0) did affect large parts of the first future generation (people born shortly after T0) quite negatively. Second, Ludvig Beckman questions whether future generations will be affected by policies in which they had no voice.36 For that purpose, Beckman differentiates between two versions of the all-affected principle, using two interpretations of ‘being affected’: first, “[a] person is […] affected by a decision to the extent that it has a causal effect on his or her welfare or opportunities”, or second, “the decisions made by governments and legislatures define the entitlements, duties and benefits that apply to the subjects as a matter of law,” i.e. being affected means being subject to a certain jurisdiction’s legal order.37 Scholars like Dennis Thomson or Robert Dahl seem to prefer the second, legalistic, interpretation, whereas Robert Goodin vehemently argues for the first, i.e. causal interpretation.38 Beckman solely employs a strict legalistic interpretation of the all-affected principle and states that the current generation cannot legally bind the unborn, who therefore cannot be affected by today’s political decisions in this sense.39 An important underlying condition of this proposition is Beckman’s understanding of liberal democracy. According to Beckman, the sovereignty is owned by the people, and the people exert its sovereignty, mediated through elections, through the majority of their representatives.40 So, future people will be democratically self-determined, and, as sovereign, they will have the right to actively or passively approve or change the law by majority vote (or other qualified majorities).41 Beckman therefore argues that “the only laws that apply to posterity are those affirmed by future people themselves.”42 He closes his argumentation with the following statement: “[g]enerations cannot Gianfranco Pellegrino and Marcello Di Paola, “The Climatic Challenge to Global Justice,” Global Policy 5, no. 1 (2014), doi:10.1111/1758-5899.12111. 36  Beckman, “Democracy and Future Generations”. 37  Ibid., 779, my emphasis. 38  Thompson, “Democracy in Time: Popular Sovereignty and Temporal Representation,” 245; Robert A. Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), 120; Goodin, “Enfranchising All Affected Interests, and Its Alternatives.” 39  Beckman, “Democracy and Future Generations”. 40  Ibid., 783. 41  Ibid., 785. 42  Ibid., 781.

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rule one another; hence there is no basis for introducing the political representation of the unborn following the legal version of the all affected principle.”43 As a result, the intuitive argument that a legal order always binds not only current, but also future citizens, and that the current generation therefore wields power over future generations, is rejected by Beckman. However, Beckman’s conclusion is implicitly based on the premise that the lifetimes of members of the current generation do not overlap with the lifetimes of members of future generations. But this understanding of generations is not a general consensus, and it is in conflict with the definition of future generations used in this paper. Based on this definition, we end up with quite a different evaluation of Beckman’s argument. Beckman equates the sovereign with the majority of the representatives, and, via the electoral procedure, with the majority of the voters, since democratic elections are the mechanism through which the majority of representatives, voted by the majority of voters, legitimately exerts the sovereignty of the people.44 But every political decision, taken at T0, does not only legally bind the population whose majority indirectly legitimised the concerned decision; it also legally binds people born after T0, living in that jurisdiction. These people who are born after T0 are not part of the sovereign existing at T0. Furthermore, they will not become sovereign, that is democratically selfdetermined, for the time being, because they cannot actively or passively make any majority decisions regarding the validity of the legal order adopted at T0. Only a majority decision of the currently living is legitimate, according to Beckman.45 For a legitimate majority decision of the future contemporary living, the people born immediately after T0 will depend on large parts of the future selves of current generation’s members, because the people born immediately after T0 will be a minority in the society existing soon after T0. It is only after the point of time when the people born after T0 will outnumber the people who were already alive at T0 that they will be allowed to exert their sovereignty. Until that demographic turning point, the current generation will wield the same power over members of future generations that is negated by Beckman. Since every law is made to bind the future, at least those who are born timely after T0 should be considered in the democratic decision-making process. Having said that, if one stays in Beckman’s shoes, one could still argue that the legalistic version of the all-affected principle should not be applied to later future generations that will come into existence, say, in 60 years. 43  Ibid., 786. 44  Ibid., 783. 45  Ibid.

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Still, there is a further, rather empirical argument against Beckman’s claim: Beckman’s theoretical argument is far from realistic. In reality, politics are first and foremost inherited from the political ancestors, a fact that in turn strongly constrains the political scope of action of the present rulers.46 The asserted self-determination of future people, be they born shortly or lately after T0, is nothing but pseudo self-determination. However, most of the literature on intergenerational justice refers implicitly or explicitly to the causal version of the all-affected principle, which seems to be not only more intuitive and demanding, but also ethically superior.47 Policy outputs not only have legal consequences, but also causal impacts on future generations. Future generations will be affected by our political decisions, as we are affected by the political decisions of our ancestors. Besides, this fact also rebuts the liberal objection that politically considering future generations’ interests today would be an illegitimate form of heteronomy and paternalism from the current generation over future generations. Since we do affect future generations one way or the other, we cannot avoid ruling over them. From this perspective, it is better to explicitly politically consider future generations’ interests as far as we know them and thereby put in place something like a reflective paternalism, instead of not even thinking about our impact on future generations and thereby perpetuating something like myopic paternalism.48 Nevertheless, acting as a trustee for future generations surely has its epistemic and political limits. 5

Political Representation of Future Generations as ‘Proxy Representation’

If the all-affected principle reveals that future generations should be given a voice in today’s political decision-making process, how can that be conceptually realised? The implementation of intergenerational justice at the societal-political scale is framed as a problem of political representation in the following. As illustrated by the slogan of the American War of Independence, ‘[n]o taxation without representation’, political representation is a means to meet the claim of democracy that everyone who will be affected by collectively binding decisions should have a voice in making them. It is, therefore, the most plausible conceptual link between the political consideration of 46   Richard Rose, “Inheritance Before Choice in Public Policy,” Journal of Theoretical Politics 2, no. 3 (1990), doi:10.1177/0951692890002003002. 47  Goodin, “Enfranchising All Affected Interests, and Its Alternatives,” 49–55. 48  Rose, “Constitutions, Democratic Self-Determination and the Institutional Empowerment of Future Generations,” 59–60.

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future generations and our modern democratic conceptual and institutional frameworks. Indeed, in recent developments of the theory of political representation, future generations are explicitly acknowledged as constituents that need political representation.49 But how compatible are our modern standard accounts of political representation with constituents like future generations? Drawing on several scholars who tried to identify the lowest common denominator of the standard accounts of political representation, conventional political representation is characterised by the following elements: territorially defined constituents (the people, the voters) authorise, via free and fair elections, their representatives, with the purpose of having these representatives stand in for the (genuine or well-understood) interests of (at least) their voters in the political decision-making process. In this (implicit or explicit) principal-agent-relationship, the representatives are held responsible primarily through periodic elections and are thereby motivated to act responsively towards the people. The legitimacy of representation depends on the quality of the representational relationship. This quality is primarily a function of electoral equality and fairness, thereby bringing about authorisation of the representative by the represented, and the responsibility and responsiveness of the former towards the latter. These elements are condensed in the act of voting and merge into democratic legitimate political representation.50 It is obvious that the outlined standard account of political representation is not compatible with not yet existing constituents like future generations. For example, future generations cannot vote now, and they cannot have any representational relationship, since they do not exist, yet. Hence, we have to develop a new concept of representation that is consistent with these kinds of constituents. This new concept will be called ‘proxy representation’, since 49  Laura Montanaro, “The Democratic Legitimacy of ‘Self-Appointed’ Representatives,” Dissertation Thesis, University of British Columbia, accessed November 7, 2013, https://circle.ubc.ca/bitstream/handle/2429/28877/ubc_2010_fall_montanaro_laura. pdf?sequence=1, 187–88; Sofia Näsström, “Where Is the Representative Turn Going?,” European Journal of Political Theory 10, no. 4 (2011): 506, doi:10.1177/1474885111417783; Michael Saward, “The Representative Claim,” Contemporary Political Theory 5, no. 3 (2006): 297, doi:10.1057/palgrave.cpt.9300234; Michael Saward, “Authorisation and Authenticity: Representation and the Unelected,” Journal of Political Philosophy 17, no. 1 (2009): 1, doi:10.1111/j.1467–9760.2008.00309.x; Michael Saward, The Representative Claim (Oxford, New York: Oxford University Press, 2010), 112–19; Urbinati and Warren, “The Concept of Representation in Contemporary Democratic Theory,” 404. 50  Näsström, “Where Is the Representative Turn Going?,” 502; Andrew Rehfeld, “Towards a General Theory of Political Representation,” The Journal of Politics 68, no. 1 (2006): 3; Johannes Pollak et al., “On Political Representation: Myths and Challenges,” accessed May 15, 2014, http://www.ihs.ac.at/vienna/resources/Political%20Science/Publications/ RECON_wp_0903.pdf; Urbinati and Warren, “The Concept of Representation in Contemporary Democratic Theory,” 389.

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proxies are surrogates of variables or persons that are per se unmeasurable (see statistical methods), or unapproachable (in our case), respectively. The prefix distinguishes proxy representation from other forms of representation by emphasising the unique feature of its constituents: they are per se unapproachable and cannot be consulted for they do not yet exist. That is why they are not able to maintain a representational relationship with a representative. For concept building, I draw on Andrew Rehfeld’s general theory of political representation.51 Rehfeld’s theory of representation and the building of the concept of proxy representation is beyond the scope of this paper; however, the most important elements are outlined briefly below. Also, the operationalisation of the concept of proxy representation is left to another paper. Nonetheless, for the purpose of illustration, I will attach a list of ‘proxies’ (i.e. institutions representing future generations according to the concept outlined below) that I have identified with the help of the concept of proxy representation. Rehfeld develops a very general theory of political representation. For this, he rigorously and analytically discriminates between political representation as a descriptive fact and related concepts like democracy, justice, legitimacy and similar normative concepts: “[p]olitical representation, I argue, results from an audience’s judgment that some individual, rather than some other, stands in for a group in order to perform a specific function.”52 With this concept, Rehfeld is free to introduce non-elected representatives, and he puts a strong emphasis on the so-called audience which is responsible for the recognition of the claim-maker (i.e. the would-be representative) as the representative. This means that the genuine constituents, in our case future generations, do not need to be there. Consequently, Rehfeld’s formal concept of political representation is a suitable higher-level concept from which I can build the concept of proxy representation as a classical subtype.53 To do this, I first have to determine the function of proxy representation. For Rehfeld, the function is central for it determines both the activity of the representative and, via its context, the audience.54 With reference to Hannah Pitkin, it is plausible to say that the function of proxy representation is to make

51  Rehfeld, “Towards a General Theory of Political Representation”. 52  Ibid., 1. 53  For concept relations, see David Collier and Steven Levitsky, “Democracy with Adjectives: Conceptual Innovation in Comparative Research,” World Politics 49, no. 3 (1997). 54  Rehfeld, “Towards a General Theory of Political Representation,” 10.

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future generations present in today’s policy-making.55 But this mandate is rather vague. If one adopts the perspective of the all-affected principle, one could state that the function is to introduce the interests of future generations into the democratic political decision-making process. To leave enough room for specific institutions representing future generations (i.e. proxies), the function should not be narrowed down further. Therefore, I define the function as follows: proxy representation means to make future generations present in today’s policy-making, i.e. to introduce their interests into the democratic political decision-making process. This function also implies that we need institutional representation, for only institutional representation will allow for a steady, principal access to the political decision-making process, as demanded by the all-affected principle, and not solely to particular, selected decision-making processes. Furthermore, we need an agent who, once recognised by the audience, fulfils the function and thereby becomes a proxy. I distinguish permanent agents from situational agents. Permanent agents (or permanent proxies) are specific agents; they refer to offices and organisations with the task of representing future generations permanently, i.e. to fulfil the function. For example, the Israeli Parliamentary Commission for Future Generations was a permanent proxy, since it operated on a permanent basis. As is usual in offices and organisations, their members are allowed to hold other offices at the same time. Situational agents (or situational proxies), on the other hand, are unspecific agents. The term does not refer to a specific office or organisation, but to a meta-policy that prescribes the political representation of future generations, i.e. the function outlined above. To convey the difference here, I will employ an analogy: if we want to institutionalise gender equality, we could either opt for an equal opportunities officer (permanent agent) or adopt a meta-policy that prescribes gender mainstreaming as a cross-sectional task so that everyone who (situational agent), in a certain situation, handles a gender-sensitive issue, is obliged to consider the needs of the neglected gender according to the metapolicy. So, coming back to proxy representation, we could try to institutionalise the representation of future generations within the political decision-making process with the help of a meta-policy, optionally even without creating a specific office or organisation as a representative at all. Everyone who complies with the meta-policy is a situational proxy in that particular situation of his practice. For instance, a civil servant who conducts a future generations 55  Hanna F. Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967).

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impact assessment according to a meta-policy prescribing that every draft of a legal regulation has to be assessed on its impact on future generations, is in the particular situation of executing the assessment as a situational proxy. This is the case even if the civil servant does not follow the function of proxy representation during her other, unrelated tasks. The meta-policy is required to reflect the function of proxy representation. Proxy representation only exists empirically if the meta-policy is steadily being adhered to, i.e. if the political decision-making process as such is successfully addressed. If there are neither permanent nor situational agents, it lacks a necessary element of proxy representation. Without agents, proxy-representation cannot be realised. There is a further requirement that is connected to the agent. As we learn from Saward, there are singular and multiple claims.56 For us, this means that a claimant (i.e. agent) can make representative claims towards several different constituencies. But the interests of different constituencies may conflict. In order to avoid the corrosion of the function by too many constituencies, I establish the following rule: given that all other conditions are being met, we speak of proxy representation if, and only if, the claim that refers to future generations is at least as strong as the sum of additional, different claims referring to other (contemporary) constituencies, if they exist. This is to ensure that the interests of future generations are still introduced into the political decision-making process in the case of maximum conflict between the interests of future generations and the interests of other possible constituencies of the agent. The summed-up interests of possibly existing additional constituencies of the agent should not be more important to the respective agent than the interest of future generations. This rule is valid both for permanent and for situational agents. In case of situational agents, the rule has to be valid in the situation where the agents correctly perform the function according to the meta-policy. Having said that, the meta-policy is required to refer to future generations in an equilibrated manner at the minimum. Who is the audience of proxy representation? For proxy representation to happen it is necessary that the claimant (i.e. agent) is recognised by the audience so that he is allowed to perform his representative function. The function of proxy representation addresses the democratic political decision-making process. Deduced from the function, the ultimate audience members are the decisive members of the political administrative system, as the political administrative system is the forum of the collectively binding decision-making 56

 Saward, “The Representative Claim”, 58, 307.

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process. The recognition of the claimant as a representative of future generations by the political administrative system is both necessary and sufficient for the agent to be able to perform his function. The agent needs access to the political decision-making process, and the guards of the entrance to the political decision-making process are the politicians who ultimately make the collectively binding decisions. They themselves must allow proxy representation to take place. But how can we determine if the political administrative system has recognised the claimant as a representative of future generations or not? As already indicated, phenomenologically it is sufficient to demonstrate that the agent is given institutionalised access to the political decision-making process. First, this access requires an institutional channel. The executive, the legislative and certain parts of the judiciary qualify for that channel. All of them provide access to the political decision-making process. Second, this access must formally allow for influence on the political decision-making process. Proxies must be able to introduce the interests of future generations into the political decision-making process, and therefore they must be formally allowed to influence the agents that directly participate in the political decision-making process. For example, there could be a parliamentary commissioner with access to parliamentary committee meetings and plena, like in Israel. Or a federal council that gives non-ignorable recommendations to government on its own initiative, like in Belgium. Or an Ombudsman that is allowed to go to court to appeal against policies that undermine certain constitutional rights of future generations, like in Hungary. The third Rehfeldarian requirement is that the agent accepts the charge to fulfil the function.57 This happens when the agent takes over his role as a representative (i.e. proxy). This is relatively straightforward for permanent proxies where we need people who are members of an organisation obligated towards proxy representation or who take a corresponding office. However, it is equally important for situational agents, as meta-policies with which no one complies, do not generate situational proxies. If there is an agent who complies both with the function and the rule and who has sufficient access to the political decision-making process, we call this agent a proxy, and speak of proxy representation.

57  Rehfeld, “Towards a General Theory of Political Representation,” 6.

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6 Conclusion In order to build a conceptual and argumentative link from the philosophical issue of intergenerational justice to political science, democracy, and realworld politics, I dealt with the major conceptual stumbling blocks towards the political institutionalisation of intergenerational justice and developed a new concept called proxy representation. First, I defined the members of future generations as those who will be born after T0, which is the speech act, and thereby distinguished future generations from contemporary children and future selves of members of the current generation. Second, I addressed the non-identity problem and rejected it as invalid with regard to proxy representation. Third, I critically discussed the all-affected principle and demonstrated how it can be properly applied to future generations. Fourth, we learned that the standard account of political representation, which offers itself as the most suitable conceptual docking station for the political consideration of future generations, is not yet compatible with non-existing constituents like future generations. Finally, drawing on Andrew Rehfeld’s general theory of political representation, I built a new concept called proxy representation. This paper thus establishes the conceptual foundation for analysing strategies to implement intergenerational rights and obligations to future generations in our current political institutional frameworks. A list of those so-called ‘proxies’ is below. Supplement: List of Proxies58 – Parliamentary Commissioner for Future Generations (Hungary, 2008–2011) – Parliamentary Commission for Future Generations (Israel, 2001–2006) – Future Generations Commissioner for Wales (Wales, since 2015) – Deputy Commissioner for Future Generations (Hungary, since 2012) – Article P of the Constitution – Commissioner for Fundamental Rights (Hungary, since 2012) – Federal Council for Sustainable Development (Belgium, since 1997) – Maltese Sustainable Development Strategy; Sustainable Development Act – Department of Sustainable Development, Environment and Climate Change; Sustainability Coordinators; Sustainable Development Focal Points (Malta, since 2013) – Commissioner for Environment and Sustainable Development (Canada, since 1996) – Sustainable Development Office (Canada, since 2009) 58  The proxies are roughly sorted according to their impact potential. The first six proxies show a very high, high or rather high impact potential, whereas the last 23 proxies show an impact potential ranging from rather low to very low. Unfortunately, elaborating on the concept of ‘impact potential’ is beyond the scope of this article.

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– Future Office (Liechtenstein, 2004–2010) – Commissioner for Environmental Sustainability (Victoria [Australia], since 2003) – National Council for Sustainable Development (Hungary, since 2008) – Sustainability Review – civil servants conducting the Sustainability Review (Baden-Wuerttemberg, since 2011) – Guardian of Future Generations (Malta, since 2012) – Committee for the Future (Finland, since 1993, without interruptions since 2000) – Finnish National Commission on Sustainable Development (Finland, since 1993) – Council for the Rights of Future Generations (France, 1993–1995) – Sustainable Development Commission (UK, 2000–2011) – Commissioner for Sustainable Futures (Wales, 2011–2015) – Comhar Sustainable Development Council (Ireland, 1999–2011) – Commission for Sustainable Development (Estonia, since 1996) – High Council for Sustainable Development (Luxembourg, since 2006) – Interdepartmental Committee Sustainable Development (Switzerland, since 1993) – Philippine Council for Sustainable Development (Philippines, since 1992 [1996–2004]) – State Secretaries’ Committee on Sustainable Development (Germany, since 2000) – Parliamentary Advisory Council on Sustainable Development (Germany, since 2004) – Council for Sustainable Development (Germany, since 2001) – Sustainability Assessment – civil servants conducting the Sustainability Assessment (Germany, since 2013) – UK Government Sustainable Development Strategy – Agents of the Executive (UK, 2005–2010) Acknowledgements The author would like to thank the editors of this book and the other participants of the Conference on Intergenerational Justice at WTI in Bern, 2015 for their helpful comments. Large parts of this article are based on research also presented in the second and third chapter of the author’s dissertation in German, published under the title “Zukünftige Generationen in der heutigen Demokratie – Theorie und Praxis der Proxy-Repräsentation (Springer VS 2018).

Chapter 3

Guardians for Future Generations: Bringing Intergenerational Justice into the Heart of Policy-making Catherine Pearce 1 Introduction As the late Judge C.G. Weeramantry, former Vice-President of the International Court of Justice, explains in his statement to the World Future Council,1 a priority objective of any legal system claiming to be developed is the protection of those who are unable to protect themselves.2 If this amounts to an entire population, the duty becomes imperative. While the time frame of those wielding economic or political power is extremely short, little thought is given to the long-term impact of decisions made. Similarly, lawyers and judges attend to the practical nature of presenting those immediately before them. The valid assumption arises that the law should be made more responsive “to the obvious need for protection of our children’s children against the rapaciousness and unconcern which we have so long permitted to continue without adequate preventive measures from our legal systems.” Governments and delegates attending the Rio Summit in 1992 were already familiar with the 1987 Brundtland Report, Our Common Future, and well versed in its definition of sustainable development as: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Many argue3 that we have yet to fully grasp this original 1  The World Future Council consists of 50 respected personalities from around the globe. The World Future Council represents governments, parliaments, the arts, civil society, academia and the business world. Together they form a voice for the rights of future generations. The World Future Council seeks to pass on a healthy planet and just societies to our children and grandchildren, and does this through in-depth research, capacity-building and knowledge transfer of future just policy solutions. The World Future Council is an independent foundation (Legal Status: German Charitable Foundation) and was founded in 2007 by the Founder of the Right Livelihood Award (Alternative Nobel Prize), Jakob von Uexkull. 2  http://www.futurejustice.org/resources/#tabbed-nav=tab1 (last accessed 13/2/2018). 3  See for example, Sustainable Development: From Brundtland to Rio 2012 Background Paper, prepared for consideration by the High Level Panel on Global Sustainability at its first meeting, September 2010; UNECE, Sustainable development – concept and action, http://

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_005

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meaning of sustainable development, in its truest form, to emphasise our commitment to equity for future generations. Professor Edith Brown Weiss, a leading legal scholar on international environmental law, argues that “we, the human species, hold the natural environment of our planet in common with other species, other people, and with past, present and future generations. As members of the present generation, we are both trustees, responsible for the robustness and integrity of our planet, and beneficiaries, with the right to use and benefit from it for ourselves.”4 Since it is often electoral cycles which define decision-making, we have witnessed a pattern of short-term gains taking precedence over future and long-term interests. Furthermore, tensions often arise over the perceived conflict between respecting intergenerational equity and meeting the critical needs of those living now. Professor Brown Weiss argues5 that the solutions to achieve ‘intragenerational’ equity are often consistent with advancing intergenerational equity. Improving the prosperity of the lives of all, to bring dignity and sufficiency today is a pertinent precondition to protecting the opportunities of future generations. We are only now, beginning to truly acknowledge that the three dimensions of sustainable development: economic, social and environmental motivations are not detached from one another, or to be traded against one another, but are in fact mutually supportive and inextricably linked. We depend upon a healthy environment, including precious biodiversity and natural ecosystems to support our well-being and to ensure secure and stable economies. The 2011 Synthesis report compiled by the UN Secretary General6 sets out that as long as sustainable development remains separated from core policy formulation and economic thinking, and as long as gaps in implementation are not secured, sustainability challenges will not be met. During the painstaking, three year formal negotiating process to agree to the Sustainable Development Goals, ‘leave no one behind’ became the assumed slogan to help simplify and pledge an underlying commitment to a complex and often overwhelming agenda. The poor, marginalised people in vulnerable situations and living on the edge of society come to mind. Those are the voiceless and forgotten. Yet, what of future generations? They are also without a www.unece.org/oes/nutshell/2004-2005/focus_sustainable_development.html; Sustainable Development: Linking economy, society, environment, OECD, 2008. 4  Weiss, Edith Brown. ‘In Fairness To Future Generations and Sustainable Development’. American University International Law Review 8, no. 1, 1992: 19–26. 5  Ibid. 6  Synthesis report on best practices and lessons learned on the objective and themes of the United Nations Conference on Sustainable Development, paragraph 103, January 2011.

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voice, and for whom full enjoyment of their human rights looks increasingly uncertain. The transformational nature of the 2030 Agenda must be supported by a new mindset which challenges current patterns where short-term interests often override the wellbeing of future generations. It is after all, the decisions made today that will affect them. Changes are needed to address the challenges posed by climate change, environmental destruction, extreme poverty and the widening gap between rich and poor, all of which pose enormous risks, to present generations, and worsening still to create a very unstable planet for future generations too. Ending poverty – a key part of the 2030 Agenda, is as much about future generations as present day. People cannot think and act long-term if their daily life is an existential struggle. Today, the impacts of climate change are most heavily felt by the poorest, threatening people’s basic rights such as the right to food, water and shelter on a daily basis. As a result, much of the world’s population is prevented from developing sustainably in a way that doesn’t compromise future generations. The 17 goals and 169 supporting targets which comprise the Sustainable Development Goals, reflect the global response to a complex set of interlinked and connected challenges. Some would say the agenda is contradictory and incompatible in places. Future generations are recognised early on in the 35 page document: “[w]e are determined to protect the planet from degradation, including through sustainable consumption and production, sustainably managing its natural resources and taking urgent action on climate change, so that it can support the needs of the present and future generations.”7 An important element to resolve our sustainable development conflicts is therefore, the bridging of these social spheres with the help of a new kind of creative, multidisciplinary institution. As Kofi Annan, former SecretaryGeneral of the UN, states: “[g]ood governance at the local, national and international levels is perhaps the single most important factor in promoting development and advancing the cause of peace.” Good governance is recognised in transparency and accountability of decision-making procedures and the operation of the administrative system. Yet, monitoring and enforcement of agreed sustainable development strategies at all governance levels remain weak, and there are few tools by which governments are held to account on meeting these commitments. Without full representation of their needs for a liveable and healthy environment, citizens often miss an adequate voice or a legitimate means by which to 7  United Nations General Assembly, A/RES/70/1–Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015.

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question or present their concerns. Central legal tools of public participation, including Principle 10 of the Rio Declaration, offer excellent means for access and public participation in environmental decision-making. Questions remain however, for participation in those decisions which go beyond the environment, and for those who are not able to be present. This is where a Guardian for Future Generations can be complementary, by bringing the broader intergenerational justice perspective into decision-making outside just the confines of the environment. Extensive research undertaken by the World Future Council, on simple, successful solutions to implement intergenerational responsibility and justice has demonstrated the value of Guardians or Commissioners for Future Generations. Guardians for Future Generations are innovative, independent bodies, dedicated to enhance governance frameworks and processes, filling institutional gaps by actively advocating for long-term interests, helping to promote practices and introduce new means by which to implement intergenerational justice. Through offering advice, recommendations, and building capacity, such institutions have proven very effective in overcoming short-termism and policy incoherence plaguing the decisions of today, linking citizens with governments, and working as a catalyst for sustainable development implementation. 2

Political Recognition and Experience of Representing Future Generations

Looking to better represent, or include future generations in present day decision-making is often interpreted by some as a romantic notion that we can ill afford. However, this is not a new, idealistic concept. The concept of intergenerational equity can be traced back to traditional civilisations, for example the Native American Indian practice of always considering the impact of present decisions on the seventh generation.8 Many communities and traditional cultures have the experience of using a moral authority, or incorporating a conscience keeper into their decision-making to ensure that the consideration of past, present and future, as well as the protection of our environment is always taken into account. Since 1946, the international community has marked, in over 50 international treaties and conventions, the need to recognise the interests of future generations. 8  The 7th generation principal was so important to Native American cultures that it was codified in the Iroquois Great Law of Peace.

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In an attempt to bring intergenerational equity into legislation and policymaking, several countries have established specific national institutions with this as their targeted mandate. Their interventions are also often based upon the complaints and concerns from stakeholders, including NGOs, local communities and individuals. Often termed ‘Commissioners or Guardians for Future Generations’, they are institutions working at the national level, at the heart of the State system, yet independent from administrative power and, therefore unmotivated by short-term electoral cycles. They pursue an official and active advocacy role for long-term interests and have proved to function as an effective mechanism providing checks and balances for present and future interests. These institutions have frequent and broad exchanges with many organisations and communities of the present generation. For example, in Hungary, the Parliamentary Commissioner for Future Generations can directly raise concerns about the long-term impact of certain projects or policy proposals. The Hungarian Commissioner was established after a grassroots initiative by the civil society organisation, Védegylet (Protect the Future!),9 and since, the institution has enjoyed enormous support from several hundreds of Hungarian and foreign NGOs, churches and professional organisations. The Hungarian Parliament established the Parliamentary Commissioner for Future Generations in 2007, tasked “to ensure the protection of the fundamental right to a healthy environment”.10 The Commissioner examines individual decisions and monitors policy developments and legislative proposals to ensure that they will not pose a threat to the environment or harm the interests of future generations. He conducts investigations upon complaints or ex officio, can have access to all governmental documents, and his mandate includes the right to review the normative actions of municipality councils, primarily in spatial planning issues. He receives petitions from those concerned that their right to a healthy environment has been or is in danger of being violated. He must investigate proper petitions and make recommendations to the relevant public body and he can investigate violations on his own initiative. The Commissioner has said he carries out strategic development and research, covering the duty of representing the rights of future generations. The role is directly linked to defending the interests of future generations on the same level as the rights of people today – the Commissioner places future generations at the heart of the advocacy and investigative procedures.11 9  Gosseries, Axel & Jàvor, Benedek, First-ever Ombudsman for the Future, 2008. 10  Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (Ombudsman). 11  Ibid.

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The new Hungarian constitution of 2011, offers a detailed description of natural resources that should be protected in the interests of future generations, including the waters, lands, forests, genetic heritage and cultural heritage of the country. However, in 2012, the position of the Commissioner was downgraded to a deputy Ombudsperson, to the huge dismay of civil society and the global community.12 It is important to reflect upon the fact that international recognition and political support from other regional and global institutions would help to build pressure against such decisions in the future. The Well-being of Future Generations Act13 was introduced in Wales in 2015, setting a sustainable development duty on public bodies in Wales, as one of the only governments to do so. The Act requires public bodies to incorporate longterm sustainability into their thinking, and to work with each other and the public to tackle problems in a joined up approach. This includes setting and publishing well-being objectives and ensuring that they are met. The legislation sets out seven well-being goals for Wales: global responsibility, prosperity, resilience, health, equality, cohesiveness, and cultural vibrancy. The following five ways of working, provide criteria, guiding public bodies in their work, which comprise the Sustainable Development Principle: long term – balancing the needs of today with those of future generations; prevention – focusing on early intervention and early action rather than just reacting to problems; integration – aligning public body’s efforts in relation to each other’s well-being goals and objectives. collaboration – working together towards well-being objectives; involvement – involving people who reflect the community in the area where the public body operates. The Principle establishes a statutory Future Generations Commissioner, to act as a guardian for the interests of future generations in Wales, with several key responsibilities: providing advice and support to public bodies and encouraging best practice; providing advice to Public Services Boards concerning the preparation of their Local Well-Being Plan; carrying out research to include the well-being goals, the national indicators and milestones, and the sustainable development principle and how public bodies apply it; conducting reviews into how public bodies are accounting for long-term impacts and make 12  Human Rights Watch “Hungary: Constitution Changes Warrant EU Action”, https:// www.hrw.org/news/2013/03/12/hungary-constitution-changes-warrant-eu-action (last accessed 13/2/2018); BBC News, “Q&A: Hungary’s Controversial Constitutional Changes” http://www.bbc.co.uk/news/world-europe-21748878 (last accessed 13/2/2018); John Nadler, ‘http://content.time.com/time/world/article/0,8599,2103775,00.html (last accessed 13/2/2018). 13   Well-being of Future Generations (Wales) Act 2015 http://www.legislation.gov.uk/ anaw/2015/2/contents/enacted (last accessed 13/2/2018).

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recommendations based on the findings, including to public bodies.; preparing and publishing a Future Generations Report every five years to provide an assessment of the improvements public bodies should make in accordance with the sustainable development principle. In New Zealand, the first body to oversee the implementation of environmental policy goals was appointed during the country’s environmental reforms in the 1980s. The Parliamentary Commissioner for the Environment (PCE)14 was set up under the 1986 Environmental Act with a five year mandate, with authority to investigate “the effectiveness of environmental planning and management carried out by public authorities”, reviewing “the system of agencies and processes established by the Government to manage the allocation, use and preservation of natural and physical resources”. Finally, if requested by the House of Representatives, the Commissioner had the authority to hold enquiries into matters with significant environmental impact. The Commissioner from 1997–2007, placed great emphasis on the need for broader sustainability education. Today, there are proposals to change the Parliamentary Commissioner for the Environment into the Office for Sustainable Development. Some twenty or so national constitutions make explicit reference to the rights of future generations.15 For example, protecting the rights of future generations was cited as one of the reasons for the creation of a Charter of Fundamental Rights and Freedoms in the Czech Republic.16 The rights of future generations are recognised under the Ecuadorean Constitution as guaranteed principles for the State’s protection of the environment: “[t]he constitution recognises the following environmental principles: The State guarantees a sustainable model of environmentally balanced development, respectful of cultural diversity, to conserve biodiversity and the natural regeneration capacity of ecosystems, and to ensure the satisfaction of the needs of present and future generations.”17 Other similar initiatives include parliamentary committees, for example in Germany, which has such a committee for the analysis of legislative proposals before they are presented for voting. Finland also currently enjoys a parliamentary ‘Committee for the Future’. 14  Parliamentary Commissioner for the Environment, New Zealand http://www.pce.parlia ment.nz/ (last accessed 13.2.2018). 15  World Future Council & CISDL, “National Policies & International Instruments to Protect the Rights of Future Generations”, A Legal Research Paper, 2010. 16  Charter of Fundamental Rights and Freedoms of the Czech Republic, Preamble (‘The Federal Assembly, […] recalling its share of responsibility towards future generations for the fate of life on earth, […] has enacted this Charter of fundamental rights and freedom’). 17  Constitution of the Republic of Ecuador 2008 art 395.

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In March 2001, Israel’s Knesset established a ‘Commission for Future Generations’, an inter-parliamentary body to audit legislation on the impacts for coming generations. With specific focus on the creation of a dimension of the future that would be included in the primary and secondary legislation of the State of Israel, the Commission operated with a five year mandate to defend the needs and the rights of future generations. One of the first steps in establishing the ‘Commission for Future Generations’ was the need to define which policy areas were “of particular interest to future generations”, as this was the wording of the law. Even though the Commission’s initiators were apparently not familiar with the concept of sustainability, it ended up with twelve policy areas that matched the principle components of sustainability. The Commission effectively had informal veto power over lawmaking, similar to the impact of a filibuster in the US Congress. The Israeli Commission for Future Generations was a significant initiative, the first explicit representation of future generations within government. Commissioner Shlomo Shoham (2001–2006) took a systemic and integrated approach in his opinions and challenged business as usual. However, when Shoham’s term ended, no new Commissioner was appointed, apparently because the power the Commissioner’s veto had in blocking the passing of legislation did not comply with the interest of future generations. These institutions and others are now part of a formal ‘Network of Institutions for Future Generations’.18 The Network was established to share knowledge, experience and good practices on implementing intergenerational justice, providing an active platform for innovative ideas on the institutional protection of future generations and their environment. 3

Establishing Guardians for Future Generations at the National Level

Taking into account existing governance frameworks and legal architecture, there can of course be no uniform approach, nor identical institutions from one country to the next. Similar institutions which are already in place should be reformed or strengthened as necessary. A number of entry points are available to best ensure the needs of future generations are represented in the executive, legislature and the judiciary. In the case of Hungary, the institution was established by the Parliament and reports annually to the Parliament. The 18  Network of Institutions for Future Generations http://futureroundtable.org/en/web/ network-of-institutions-for-future-generations/about#_ftn1 (last accessed 13.2.18).

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budget is also debated and voted by the Parliament. The Ombudsperson can only be established by virtue of the highest law or executive available at the level concerned. However, for this institution to be effective, attention must be paid to a core set of principles upon which it must be based. These principles are drawn from research undertaken by the World Future Council, which point to optimal impact: independent; proficient, in terms of having a multidisciplinary staff; transparent; legitimate by democratic standards; with full access to all relevant information and widely accessible to external assessments and citizens’ concerns. Independence does not mean isolation: the institution of a Guardian for Future Generations is an agent of change, the performance of its duties being parallel and complementary to the three powers (legislative, executive and judiciary). As such, the work and mission of the Guardian would be integrated into the process of decision-making at all-levels. It is the Guardian for Future Generations’ independence that should shine upon the decisionmaking processes, not its authority. In the more contextual frame of politics, independence means the institution would be apolitical during the execution of its work. For instance, the Ombudsperson will be expected to be explicit about any past affiliations, support, or other link to any political party; and will have to demonstrate that he has willingly given up political positions prior to taking office. The multidisciplinary staff working for the institution would be expected to do the same. We identify a number of roles for this institution: (1) be responsive to citizens, thus increasing trust in policy implementation and government accountability and combating high levels of political apathy; (2) offer, analysis, research and recommendations on good practice for long-term interests; (3) provide space and create dialogue to share and inform others of analytical evidence and research; (3) facilitate coherence between separate pillars of government; (4) hold government departments and private actors accountable; and, (5) balance short-term interests with the long-term interests of society as a whole. What substantial benefits would Guardians bring? (1) Reinforce underlying values and facilitate a broader discourse. How long-term is long term? What do we mean by intergenerational justice? How do we put a price on ecosystem services – and should we? Do future generations have rights? (2) Ensure effective implementation. Supporting implementation (legislation, flagship initiatives etc.) with a future oriented and holistic understanding will increase acceptance of priorities and help governments deliver on their commitments. (3) Modernise tools and instruments by seeking to introduce well-being indicators beyond GDP, implementing the Precautionary Principle, and application

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of social discount rates. (4) Building a bridge with civil society. A representative to receive citizen complaints on long-term impacts of policies and legislation helps to improve people’s trust in their institutions and provides good intelligence about major concerns. 4

Role and Functions at the International Level

At the Earth Summit of 1992, it was the Government of Malta which formally tabled the resolution for ‘a guardian for future generations’. This proposal suggested the introduction of an institution at the international level that could protect future generations and advocate for their rights. The suggestion built upon the notion that the present generations have a duty to protect future generations and their needs. Three major inherent disadvantages for future generations were recognised; they are subject to the long-term consequences of our actions, they have no representatives and thus their interests are often neglected in policy and decision-making, and they cannot plead or bargain for reciprocal treatment since they cannot affect the past in any way. The “Guardian” suggested would have the power of advocacy, promoting sustainable decisions for future generations.19 The resolution was not supported. Twenty years later, proposals for a High Commissioner for Future Gen­ erations, or a High Level Representative for Sustainable Development and Future Generations was proposed at the UN Conference on Sustainable Development, Rio+20 in 2012. Unfortunately, the proposal did not make it through to the final outcome document, despite widespread support. Instead, Member States requested the UN Secretary-General to provide a report on the issue. The report, Intergenerational Solidarity and the Needs of Future Generations,20 published in 2013 provides a balanced approach, touching upon the concerns associated with taking into account the needs of future generations. It builds up a strong, compelling case for action, and presents a High Commissioner for Future Generations as its first recommendation. Priority of the role would be targeted towards acting as an advocate; offering support and advice where requested; undertaking research; fostering expertise on policy practices and interacting with Member States, UN entities, and others. 19  Maltese proposal at 1992 UN Conference on Environment and Development in Rio de Janeiro (1992), A/CONF.151/PC/WG./L.8/Rev.1/Add.2. 20  United Nations General Assembly Resolution 67/97, The Rule of Law at the National and International Levels, A/RES/67/97 (14 December 2012), available from undocs.org/A/ RES/67/97 (last accessed 13.2.18).

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Since this would be a new role without precedent, its mandate and operating guidelines require careful discussion. Most clearly, we would expect any new office for future generations to allow space and attention within the UN work and programmes to deliver global governance for the long term.21 The office would provide a knowledge platform for policy research and sustainable solutions. This platform would engage policy-making on all levels; local, regional, national and international, conducting research and policy analysis, further driving the sustainable agenda. As a knowledge bank, the office would fuel sustainable innovation and the transition from short-termism to long-termism. Other aspects of the position include the promotion of information exchange, maintaining a dialogue with Member States, UN institutions, stakeholders, civil society, and the media; and, providing an inlet for concerns, questions and opinions regarding best policies on the implementation of the SDGs and the needs of future generations.22 Through identification of policy gaps or omissions and providing early warning signals to system faults, the institution would seek to address and remove conditions that encourage inequity and social exclusion. In that sense, the office would act as an advocate for the interests of future generations across the UN organs and affiliated agencies, with other key global level institutions and working with Member States. It is important that the role represents an inspiring, visionary figure and personality to encourage and facilitate political engagement to explore the scope and practical implementation of intergenerational equity. In this regard, we would consider the office to have a strong role in nurturing learning and understanding of the challenges faced by the global community in relation to future generations, and would help to collectively identify the solutions and innovative responses. Annual reporting to the General Assembly on their activities would be one of the key functions, helping to inform on progress made and pointing to the challenges still to be met. There would, of course, be clear synergies and interlinkages with the High Level Political Forum. A number of options are available on where this body could be housed, however as pointed out at the national level, an independent office within the UN is critical. 21  Some of these thoughts are taken from a joint paper from the World Future Council: Catherine Pearce, Halina Ward & Peter Roderick, “The Mandate of a UN High Commissioner for Future Generations” Foundation for Democracy and Sustainable Development 2012 http://www.fdsd.org/publications/the-mandate-of-a-un-high-com missioner-for-future-generations/ (last accessed 13.2.18). 22   Center for International Environmental Law & World Future Council, The High Commissioner for Future Generations: The Future We Want, 2012, 6.

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Looking ahead

As the international community seek to implement the 2030 Agenda for Sustainable Development, additional support for implementation at the inter­national, national and regional levels is required. The warnings of the Brundtland Report are as urgent today as they were in 1987. The absence of real action since Brundtland has also meant the dangers for years into the future are fast encroaching on today, to the point that thousands of the vulnerable and living on the margins are facing immediate threats to their very survival. Future threats are now rushing backwards. Additional, innovative and far reaching measures that get beyond the rhetoric will be needed if we are to truly deliver our commitments for present generations, and in so doing, safeguarding a world for future generations to inherit.

Part 2 Environmental Concerns

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Chapter 4

Intergenerational Justice and the Concept of Common Concern in Marine Resource Allocation and Ocean Governance Judith Schäli The fountains mingle with the river And the rivers with the ocean, The winds of heaven mix for ever With a sweet emotion; Nothing in the world is single; All things by a law divine In one spirit meet and mingle. Why not I with thine?

Extract of “Love’s Philosophy” by Percy Bysshe Shelley

∵ 1 Introduction With the adoption of the Brundtland report1 by the UN Environment Programme’s (UNEP) Governing Council in 1987, the concept of sustainable development gained traction in public international law. By now, the concept is firmly established as an international legal concept, as it forms an integral part of a great number of international instruments and is recognised in all regions of the world.2 In the Brundtland report, sustainable development was defined as “development that meets the needs of the present without

1  Report of the World Commission on Environment and Development, Our Common Future, 1987. 2  Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, 3rd ed. (Cambridge and others: Cambridge University Press, 2012), 206–7, including references; Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Rep 1997 7 at 78 para 140.

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compromising the ability of future generations to meet their own needs”.3 The concepts of intra- and intergenerational equity are inherent to the notion of sustainable development.4 Intragenerational equity implies that in its use and allocation of natural resources, a State must take account of the needs of other States (especially developing States) and of all different classes and groups within its own population. The principle of intergenerational equity implies that there is a need to preserve natural resources for the benefit of future generations.5 The principle of sustainable development moreover requires States to integrate environmental considerations into economic and other policies and projects. Intergenerational equity – or justice – represents the temporal dimension of sustainable development. While there is a broad discussion with regard to the exact nature and content of our obligations towards future generations, or the rights that future generations hold, it follows from the Brundtland definition that current generations are not to compromise the ability of future generations to satisfy their needs and solve their problems. Three elements have been identified to be implied in this definition. They have been referred to as ‘options’, ‘quality’ and ‘equitable access’.6 Conservation of our planet’s diverse natural and cultural resources plays a crucial role in intergenerational equity considerations. Only a broad resource base will ensure that future generations will have approximately the same amount of ‘options’ that past and current generations had with regard to the fulfilment of their needs. Moreover, intergenerational justice requests each generation to maintain the ‘quality’ of the planet, so that general living conditions do not gradually deteriorate. Finally, each generation is required to grant ‘equitable access’ to the resource base and conserve it for future generations.7

3  Brundtland Report, ch. 2. According to the Commission, the principle “contains within it two key concepts: the concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs.” 4  See Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Tokyo, Japan, and Dobbs Ferry, N.Y.: Transnational Pub/United Nations University, 1989), 97. 5  See Stockholm Principle 1; Rio Principle 3. See also Nuclear Tests case (New Zealand v. France) Dissenting opinion of Judge Weeramantry, ICJ Rep 1995 317 at 341. 6  Edith Brown Weiss, “Intergenerational Equity and Rights of Future Generations,” in The Modern World of Human Rights: Essays in Honour of Thomas Buergenthal (San José, Costa Rica: Inter-American Institute of Human Rights, 1996), 608–9. 7  Ibid.

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This paper explains how our territorial understanding of resource allocation is reflected in ocean governance, and examines its potentially impeding effect on intergenerational justice. The paper argues that an allocation regime which is limited to territorial factors may hamper the effective protection and preservation of the marine environment. Such a regime might thus contribute to a gradual decrease in options, environmental quality and equitable access to marine resources for future generations. The paper will, in a first step, shed light on the importance of ocean management for all of these elements of intergenerational equity. A sound ocean is a precondition for a diverse, resource-rich and life-sustaining world while the collapse of major oceanic ecosystems may have devastating impacts well beyond marine wildlife. In a second step, the paper will examine the current regime of marine resource allocation, especially under the United Nations Convention on the Law of the Sea (UNCLOS or the “Convention”).8 It describes the role of territorial considerations in this regard: depending on where marine resources are located, the responsibility for their protection and conservation either rests with a single state exercising sovereign rights over the corresponding area, or no one is responsible for it.9 As a last step, the paper therefore analyses how an approach in support of a common responsibility could look like. This is where the concept of common concern comes in, which, among other things, may provide a suitable basis for concerted and coordinated action in this regard. The preservation and protection of resources and ecosystems, as well as the access to resources, are strongly linked to the allocation regime.10 Whoever has jurisdiction over resources is assumed to have the power of decision about their preservation, exploitation and use. The paper thus scrutinises implications of the Convention’s underlying principles of resource allocation in this regard: the principle of territorial sovereignty of States, applying to areas under national jurisdiction, and the freedom of the high seas, which is applicable to areas beyond national jurisdiction. The principle of territorial sovereignty and 8  “United Nations Convention on the Law of the Sea“ (UNCLOS) (opened for signature 10 December 1982, in force since 16 November 1994) 1833 UNTS 397. 9  As will be explained below, there are two major exceptions in this respect: one exception concerns the conservation of straddling fish stocks and highly migratory fish stocks, the other exception refers to mineral resources of the deep seabed. 10  While some obligations in UNCLOS with respect to the protection and preservation of the marine environment mainly focus on pollution prevention, the regime is not confined to pollution and necessarily includes the protection and preservation of marine living resources: see Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA (Arbitral Tribunal 2015) para 538.

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the related principle of permanent sovereignty over natural resources provide little guidance on how to protect and conserve living resources located outside national jurisdiction. To some extent, they also shield states that do not take on their environmental responsibilities from reactions by other states. The principle of freedom of the high seas, on the other hand, does not sufficiently close the conceptual gap. Based on a ‘first come, first served’ mentality, it leaves marine resources vulnerable to over-exploitation and does not stop biodiversity losses or marine pollution. Taking into account the concept of sustainable development and its inherent concepts of inter- and intragenerational equity, this paper argues that the current framework does not sufficiently promote the conservation and protection of living resources and the marine environment, especially for areas beyond national jurisdiction. In view of a conceptual shift in international law towards a general responsibility of States to protect and preserve the environment, the paper suggests that ocean governance and the protection and conservation of the marine environment should fall under the concept of common concern of humankind. The concept underpins the States’ duty to do their ‘homework’ with regard to the protection and preservation of their own environment and the conservation of the resources under their jurisdiction. It further underlines their duty to cooperate at different levels in this respect and, arguably, may give States the legal foundation to assume responsibilities beyond their territory to protect the interests of common concern. In doing so, the concept of common concern can add to the framework of sustainable development and provide important tools to better achieve intergenerational justice in ocean governance. 2

Oceans and the Future of the Planet

Covering about 70% of the Earth’s surface and with an average depth of 4 kilometres and a maximal depth of 11 kilometres, the oceans constitute some 99% of the living space on Earth.11 They hold 97% of the planet’s water and embrace 97% of the biosphere.12 While the blue world remains much of a mystery to 11  Ted Danson, Oceana: Our Endangered Oceans and What We Can Do to Save Them (New York: Rodale Books, 2011), 2; Sylvia A. Earle, The World Is Blue: How Our Fate and the Ocean’s Are One, Reprint (Washington, D.C.: National Geographic, 2010), 127. 12  The notion of the biosphere was strongly influenced by the Russian scientist Vladimir Vernadsky (1863–1945): see Vladimir I. Vernadsky, The Biosphere (Copernicus, 1998). See also James Lovelock and Lynn Margulis, “Atmospheric Homeostasis by and for the Biosphere: The Gaia Hypothesis,” Tellus XXVI, no. 1–2 (1974): 2–10.

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us, it is much older than terrestrial ecosystems, vaster, and supporting an even greater abundance and diversity of life. The Earth, one might say, is, therefore, more blue than green, and maybe Ocean would be a more appropriate name for the planet. From the shores and coasts to the high seas, from the airspace above the water surface to the dark benthic zone at the seabed, the ocean is home to countless unique (and mostly undiscovered) species and encompasses an abundance of delicate habitats.13 Some of the marine ecosystems do not have a comparable equivalent on land. An estimated ten million to a hundred million species live in marine environments.14 We, however, have explored less than 5% of the ocean, and less than 1% of the deep sea. Accordingly, we have documented but a small fraction of all marine species, while many wonders held in the ocean’s darkness are yet for us to discover – or to remain unseen. With this incredible variety of living species, the ocean provides an important source of food, including for humans.15 Food, however, is not the only or most essential service that oceans provide to terrestrial life. Three and a half billion years ago, when the first forms of life on Earth were born in the oceans, marine microscopic organisms started to build up the atmosphere by yielding oxygen. Even today, long after life has conquered the continents and covered them with wide forests, half of the atmosphere’s oxygen is generated in the oceans. At the same time, oceans absorb huge quantities of carbon dioxide, which mitigates climate change.16 To humans, oceans not only provide food and clean air, but also medicine, energy, water, mineral resources, pleasure, income, transportation routes, 13  For more information on the diversity of life within these habitats, see Michelle Allsopp et al., World Watch Report 174: Oceans in Peril: Protecting Marine Biodiversity (Washington, DC: Worldwatch Institute, 2007), 7. 14  The diversity goes beyond plant and animal species and includes all domains and kingdoms and most phyla as currently known to exist on Earth. Many of the phyla are endemic to the oceans, which means that all of the according species exclusively occur in marine environments. In contrast, only one phylum is endemic to terrestrial areas: see ibid., 7; Earle, The World Is Blue, 131–32. The estimation of 10–100 million species does, however, not necessarily include microbes: see ibid., 135. 15  For more information on human fish consumption, see, for instance, Tim Schröder, ed., “Fish – a Prized Commodity,” in World Ocean Review 2: The Future of Fish – The Fisheries of the Future, 2013, 32. 16  See United Nations General Assembly (UNGA), “Report of the Secretary-General: Oceans and the Law of the Sea,” 2007, para 158; Judith Wehrli and Thomas Cottier, “Towards a Treaty Instrument on Marine Genetic Resources,” in 30 Years After the Signature of the United Nations Convention on the Law of the Sea: The Protection of the Environment and the Future of the Law of the Sea, ed. Marta Chantal Ribeiro (Coimbra: Coimbra Editora, 2014), 518–51.

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scientific data on, for instance, the origin of life, and, for many of us, some peace of mind.17 Moreover, a lot of other land species and even remote terrestrial ecosystems strongly depend on the marine environment. In addition to the normal interdependency of different ecosystems, this is also due to the fact that the ocean ‘governs planetary chemistry’: it influences climate and weather patterns, regulates temperature and degrades oil, toxins and other pollutants.18 And so, the vast blue, but by no means void space is in fact far from being a different world, a strange and independent sphere. It is the origin and the basis of all life on Earth. It is, as it is fondly called, the ‘life-support system’ of our planet.19 The destiny of terrestrial and marine life is highly interwoven. Sustainable life on land depends on a sound marine environment (probably even more so than we currently seem to understand). And the oceans’ fate depends, in turn, on choices and actions we take on land. As the oceans have been pivotal in the development of life on land, they will play a decisive role for our future and the future of our planet. Whether future generations will benefit from the same services that oceans provide to us, and more fundamentally, from the same planetary conditions, strongly depends on our ability to sustain the ocean as our life-support system.20 With our growing awareness of the importance of a sound marine environment to human and other life, we also learn how sensitive marine ecosystems are with regard to human activities. As a matter of fact, our impact on the oceans has been detrimental and probably is, at least to some extent, irreversible.21 Marine biodiversity22 has decreased dramatically since the

17  According to the United Nations, “the potential energy output derived from oceans well exceeds current and future human energy needs”. In addition, “80% of the volume of global trade is seaborne; representing 70% of its value”: United Nations, “UNCLOS at 30” (United Nations, November 2012), 2, http://www.un.org/depts/los/convention_agree ments/pamphlet_unclos_at_30.pdf. 18  Earle, The World Is Blue, 17; UNGA, “Report of the Secretary-General: Oceans and the Law of the Sea,” para 158. 19  Astronaut Joe Allen, as cited by Earle, The World Is Blue, 265. 20  Cf. Brown Weiss, “Intergenerational Equity and Rights of Future Generations,” 605. 21  A group of experts developed a model to study anthropogenic impact on different marine ecosystems. They concluded that “no area is unaffected by human influence and that a large fraction (41%) is strongly affected by multiple drivers”: Benjamin S. Halpern et al., “A Global Map of Human Impact on Marine Ecosystems,” Science 319, no. 5865 (February 15, 2008): 948, doi:10.1126/science.1149345. 22  Biodiversity, as defined by the United Nations Convention on Biological Diversity, includes diversity within species, between species and of ecosystems: “United Nations Convention on Biological Diversity” (CBD) (opened for signature on 5 June 1992, in force since 29 December 1993) 1760 UNTS 79 article 2.

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beginning of the industrial age, and is declining at an ever increasing rate.23 Even though 90–95% of many once common fish have been extracted since the 1950s, destructive fishing techniques are still commonplace. Species close to extinction may still be fished without sanctions. Through the continuous loss of biological diversity, the ocean gradually loses its “capacity to provide food, maintain water quality, and recover from perturbations”.24 Yet, the loss of marine biodiversity is only partially caused by overfishing. There is a wide range of other factors, including the destruction of habitats by trawler fishing or pollution through marine littering, the release of oil and other persistent pollutants into the sea, eutrophication or nuclear testing. In addition, global warming increasingly affects ocean life. Anthropogenic carbon dioxide accumulated in the atmosphere dissolves in the ocean and changes its chemical equilibrium. Ocean acidification, which is the consequence, has a range of hazardous effects on marine ecosystems, including on coral reefs and other biodiversity-rich areas.25 Since the state of the ocean has major effects on the climate and weather of our planet, consequences of the changes in the oceanic chemical equilibrium for terrestrial life are hard to predict. If, however, the ocean is part of the planet’s life-support system, why do we not protect it effectively? If life on land, and human life in particular, depend in so many ways on the oceans, why do we not seem to be able to soundly manage our effect on the oceans’ health? The reason, this paper argues, lies partially in our territorial understanding of resource allocation and its manifestation in ocean governance. Despite its long historical development, the current framework does not satisfyingly answer all of the questions that arise with regard to the management of ocean resources, especially when new challenges are taken into account such as globalisation, global warming and increasing resource depletion. The current framework has not stopped marine biodiversity losses or marine pollution. It gives but little guidance on how to protect and conserve living resources located beyond national jurisdiction. Nor does it sufficiently accommodate equity concerns of States, including developing countries as well as landlocked and geographically disadvantaged States, or

23  See Tim Schröder, ed., “Marine Biodiversity – a Vital Resource,” in World Ocean Review 1: Living with the Oceans, 2010, 114. 24  Earle, The World Is Blue, 136. 25  Since the 1950s, half of the coral reefs have died or are in a state of serious decline. For more information on ocean acidification, see, for instance, Jean-Pierre Gattuso and Lina Hansson, Ocean Acidification (Oxford University Press, 2011).

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peoples, including indigenous peoples, national minorities, or future generations, who have no voice in current decision-making processes.26 3

The Allocation of Marine Resources under the United Nations Convention on the Law of the Sea

The principle of territorial sovereignty and the related principle of permanent sovereignty over natural resources allow States (or, arguably, peoples) to freely dispose of their natural resources and to control their exploration, exploitation and use.27 Traditionally, it is for the State to decide on the management of its natural wealth and resources, and with this, on their conservation and protection. State sovereignty does, however, not provide any recipe for the allocation and conservation of resources located outside the territory of any State, such as on the high seas or in the deep seabed. This conceptual gap leaves these respective areas vulnerable to the quarrel of the States and, with it, to overexploitation and destruction.28 It seems that Hardin’s theory of the tragedy of the commons29 can easily be applied to the ocean. Also, the problem of free riders impedes cooperative efforts of (some) States to protect and preserve the marine environment. With the adoption of UNCLOS in 1982, a complex regime of different jurisdictional maritime zones was put into effect: coastal States have full or limited sovereignty over their territorial sea, the adjacent contiguous zone and the 26  See Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press, 1997), 390. For a detailed discussion on equity concerns throughout the history of the law of the sea, see Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge University Press, 2015). 27  Schrijver, Sovereignty over Natural Resources, 391. 28  See Thomas Cottier and Sofya Matteotti-Berkutova, “International Environmental Law and the Evolving Concept of ‘Common Concern of Mankind,’” in International Trade Regulation and the Mitigation of Climate Change, ed. Thomas Cottier, Olga Nartova, and Sadeq Z. Bigdeli (Cambridge University Press, 2009), 25–26. 29  Garrett Hardin, “The Tragedy of the Commons,” Science 162, no. 3859 (December 13, 1968): 1243–48, doi:10.1126/science.162.3859.1243. For explaining the phenomenon of resource depletion in a system based on the freedom of the commons, Hardin uses the picture of a pasture open to all: “It is to be expected that each herdsman will try to keep as many cattle as possible on the commons (… and) seeks to maximize his gain. (…) Each man is locked into a system that compels him to increase his herd without limit – in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.”

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Exclusive Economic Zone (EEZ), extending up to 12, 24 and 200 nautical miles respectively from the baseline along the coast. Within the EEZ, the coastal State has “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living” as well as other rights and duties, including jurisdiction with respect to “the protection and preservation of the marine environment” (Article 56(1)). Coastal States enjoy similar rights with regard to their continental shelf, that is, “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin” (Article 76(1)).30 The Convention’s emphasis on the use and exploitation of resources reflects a shift of focus in the law of the sea from transportation and communication to the exploitation of natural resources.31 Two different, if not contradictory, principles govern the marine spaces beyond national jurisdiction: the high seas and deep seabed beyond the EEZ and continental shelves. The high seas, consisting of the water columns in areas beyond national jurisdiction, are governed by the principle of freedom of the high seas. While the high seas as such cannot be appropriated or occupied (Article 89), their resources, whether living or non-living, are open for use by all States, whether coastal or land-locked.32 Protection and preservation of the marine environment in the high seas can only be reached through cooperation among all States. Enforcement of corresponding rules is left to the individual States. This contrasts with the legal regime for the deep seabed (‘Area’). The deep seabed and its resources are defined as the common heritage of mankind (or humankind) (Article 136), whereas the term resources refers to mineral resources only (Article 133). The Area or its (mineral) resources cannot be appropriated by States, but belong to humankind as a whole and were to be administered by the International Seabed Authority (Article 137), an .

30  The legal continental shelf reaches a distance of at least 200 nautical miles from the baseline along the coast (even if real geological conditions are different), but may go well beyond this limit. The limits of the continental shelves exceeding 200 nautical miles are currently established by the coastal States on the basis of the recommendation of the Commission on the Limits of the Continental Shelf (UNCLOS Annex II). 31  Schrijver speaks of an evolution of the law of the sea “from a law of movement to a law of appropriation”. Schrijver, Sovereignty over Natural Resources, 204. 32  Freedom of the high seas notably includes freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines or to construct artificial islands and other installations, freedom to fish and freedom to conduct marine scientific research (Article 87(1)). The conservation and management of the living resources of the high seas is regulated by UNCLOS Articles 116–20.

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international organisation entitled to act on behalf of the international community within the scope of its jurisdiction. The notion of common heritage of mankind reflects a call for more intragenerational equity and was introduced in 1967 by the Maltese Ambassador Arvid Pardo,33 who warned of the imminent danger of a “competitive scramble for sovereign rights over the land underlying the world’s seas and oceans, surpassing (the) colonial scramble for territory in Asia and Africa”–a scenario that would be detrimental to the marine environment and would benefit only the strong and the rich.34 Three years later, in 1970, the United Nations General Assembly declared the Area together with its resources as the common heritage of mankind.35 Subsequently, the concept as drafted in the General Assembly’s resolution was embedded in UNCLOS, but even before the Convention was adopted in 1982, the application of the concept was strongly restricted. Industrialised countries opposed some allegedly interventionist elements of the regime, which were, as a consequence, eliminated by an implementing agreement adopted by the General Assembly on 28 July 1994.36 Only with the adjustments through the implementing agreement, which substantially reduced the jurisdiction of the International Seabed Authority, UNCLOS became universally acceptable.37 In light of the above, it can be said that in marine resource management, two fairly different fundamental concepts apply: national jurisdiction on the 33  Speech by Arvid Pardo at the UN General Assembly, as contained in UN doc A/C.1/PV.1515 and A/C.1/PV.1516, of 1st November 1967. Earlier in the same year, the United Nations General Assembly had declared outer space to be the province of all mankind (Article 1 of the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies” (adopted on 27 January 1967, in force since 10 October 1967) 610 UNTS 205. See Tullio Scovazzi, “The Seabed beyond the Limits of National Jurisdiction: General and Institutional Aspects,” in The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments, ed. A.G. Oude Elferink and E.J. Molenaar (Leiden: Koninklijke Brill NV, 2010), 44 fn 2. 34   A. Pardo, The Cammon Heritage – Selected Papers on Oceans and World Order (International Ocean Institute 1975) 31, as cited in Scovazzi, “The Seabed beyond the Limits of National Jurisdiction: General and Institutional Aspects,” 44. 35  U NGA Res 2749 (XXV) (17 December 1970). 36  “Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982” (adopted on 28 July 1994, in force since 28 July 1996) (1994) 33 ILM 1309. For a more detailed record of the amendments by the implementing agreement, also with regard to the original proposal as contained in the Maltese draft, see Scovazzi, “The Seabed beyond the Limits of National Jurisdiction: General and Institutional Aspects,” 45–50. 37  As of April 2017, UNCLOS has been ratified by 167 countries and the European Union. The United States is not a Party.

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one hand, with partial limitations with respect to the EEZ and the continental shelf, and the freedom of the high seas on the other hand, with two exceptions of a rather limited scope: one exception applies to the seabed beyond national jurisdiction and its mineral resources in particular, which are defined as the common heritage of humankind. The second exception limits the exploitation of living resources in the high seas according to the provisions of the Fish Stocks Agreement as adopted on 4 August 1995, which supplement, and implement, the respective provisions of the Convention on the Law of the Sea.38 To be more precise, the restrictions resulting from the second exception to the freedom of the high seas are confined to the conservation and management of ‘straddling fish stocks’ and ‘highly migratory fish stocks’, and only apply to the States Parties to the agreement. Freedom of the high seas prevails in case of non-applicability of the rules respecting the Area, basically tailored for the management of polymetallic nodules, and the rules set out for straddling and highly migratory fish stocks in the Fish Stock Agreement.39 4

The Protection of the Marine Environment under UNCLOS

UNCLOS Part XII contains a number of provisions addressing the protection and conservation of the marine environment. The chapter does not refer to a specific maritime zone in particular, but sets a general framework that obliges States to adopt a specific conduct and monitor their activities for potential environmental impacts. First and foremost, UNCLOS Article 192 provides that “States have the obligation to protect and preserve the marine environment”. The obligation is general in nature. It applies to all maritime areas and covers all types of threats to the marine environment, including both pollution and over-exploitation of living species.40 Also, the obligation as contained in Article 192 applies to all 38  “United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conserva­tion and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks” (adopted on 4 August 1995, in force since 11 December 2001) 34 ILM 1542 (1995), 2167 UNTS 88. 39  Tullio Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” in The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments, ed. A.G. Oude Elferink and E.J. Molenaar (Leiden: Koninklijke Brill NV, 2010), 13–14. 40  See Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission, ITLOS Advisory Opinion case No. 21 (2015) para 120.

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States, whether coastal or landlocked, and is owed to the international community as a whole. According to UNCLOS Article 193, States have “the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment”. The provision contains a duty of States to take into account environmental concerns in the exploitation of their natural resources. Supplementing the obligations of Articles 192 and 193, Article 206 obliges States to assess the potential effects of planned activities on the marine environment. Further provisions mainly focus on pollution prevention, reduction and control. States are clearly requested to prevent, reduce and control marine pollution, whether from land- or sea-based sources or from the atmosphere (Article 194), including through the adoption and implementation of national regulations. If States neglect their duty, they may be held liable in accordance with international law (Article 235). However, none of the provisions prohibits pollution completely. States have, therefore, some leeway in their policy choices, both with regard to the level of protection and the implementing measures. This being said, it is difficult to identify a threshold of accepted pollution beyond which State liability is triggered. The scope of Article 235 has, therefore, been confined in the past to cases of severe damage caused by pollution. Beyond this constellation, the exact nature and content of the duty to protect and preserve the environment are not quite clear. The wording of the corresponding provisions has, therefore, been repeatedly criticised, for instance for their ‘largely aspirational’ nature and lack of guidance.41 The general obligations under Part XII of the Convention are supplemented by specific obligations resulting from other parts of the Convention. The next section examines the responsibilities of States with regard to marine resource management under the concepts as described above, namely national jurisdiction and freedom of the high seas, respectively.

41  David VanderZwaag and Ann Powers, “The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance,” The International Journal of Marine and Coastal Law 23, no. 3 (September 1, 2008): 425, doi:10.1163/092735208X331872. For further critique of according obligations under UNCLOS, see Angela Williams, “Reconciling Tourism and the Environmental: A Task for International Environmental Law,” Vt. J. enVtl. L. 9 (2007): 23; Daud Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution : Towards Effective International Cooperation (Farnham, UK: Ashgate, 2006), 83; Meng Qing-Nan, Land Based Marine Pollution: International Law Development (London and Norwell: Graham & Trotman/Martinus Nijhoff, 1987), 103–5.

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States’ Environmental Responsibilities with regard to the Maritime Zones under National Jurisdiction Coastal States are responsible for ensuring the long-term sustainability of living marine resources within their EEZ.42 To guarantee this, they are required to adopt regulations and determine the allowable catch of the living resources. In doing so, States “shall ensure (…) that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation” (Article 61(2)). If the allowable catch exceeds the State’s own capacity to harvest the living resources of its EEZ, the surplus is to be made available to other States (Article 62(2)). States are moreover requested to design measures “to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield”, taking into account, among other things, the special requirements of developing States, the interdependency of fish stocks and existing international minimum standards. With regard to their continental shelf, coastal States’ environmental responsibilities are not further specified. As it is also true for territorial waters and the EEZ, they have to take environmental considerations into account when exercising their sovereign rights, including with regard to the exploitation of natural resources (Article 77(1)) or with regard to the authorisation and regulation of drilling operations (Article 81). The Convention’s provisions with regard to States’ environmental responsibilities have to be read in conjunction with existing general principles of international environmental law. Most importantly, sovereignty over natural resources is confined by the duty of States to prevent activities within their jurisdiction and control from causing significant harm43 to the environment of other States or areas beyond national jurisdiction.44 More generally, States have to prevent environmental damage with due diligence and care, cooperate with 4.1

42  U NCLOS Article 56(1); United Nations, “UNCLOS at 30,” 5. 43  The threshold of significant harm cannot be clearly defined ex ante and in a general way, but is developed on a case by case basis. 44  See, first and foremost, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Rep 1996 226 at 241–42 para 29. See also The Trail Smelter Arbitration (United States v. Canada), 3 UN Rep Int’l Arb Awards 1905 (1941) at para 49; The Iron Rhine Arbitration (Belgium v. the Netherlands), 27 UN Rep Int’l Arb Awards 35 (2005) at para 59; Corfu Channel case (United Kingdom v. Albania) Judgment, ICJ Rep 1949 4 at 14. The rule is expressed in Stockholm Principle 21 and Rio Principle 2, and has been repeatedly stressed by the General Assembly: E.g. UNGA Res. 1629 (XVI) (1961); Res. 2849 (XXVI) (1972), para 4(a); Res. 2995 (XXVII) (1972) para 1; Res. 3281 (XXIX) (1974), Article 30. See also CBD Article 3.

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each other45 and undertake an environmental impact assessment for envisaged activities that “may have a significant adverse impact in a transboundary context, in particular, on a shared resource”.46 It follows from these principles that sovereignty over natural resources entails both rights and duties, which form the legal marge the manoeuvre of a State’s resource management.47 This applies even more to the resources of the EEZ and continental shelf, which are, by definition, shared resources. In fact, with respect to marine living resources, it is usually difficult to determine into which jurisdiction they fall.48 The corollary duties of sovereign rights over natural resources have been shaped and further developed over time. Actors other than States are increasingly taken into account in the design and interpretation of rules regarding environmental responsibilities. For instance, references to humanity as a whole, including future generations, are becoming more and more common.49 This development is in line with the rising concepts of sustainable development and intergenerational justice, as referred to in universal declarations,50 45  The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS case No. 10 (2001) para 82. 46  Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Rep 2010 14 at para 204; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), ICJ General List Nos 150 and 152 (2015) at 45 para 104; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), ITLOS (Seabed Disputes Chamber) case No. 17 (2011) at 34 para 110. A request for States to undertake an environmental impact assessment for “activities that are likely to have a significant adverse impact on the environment” is also contained in Rio Principle 17. cf. UNLCOS Article 206. 47  See Island of Palmas case (Netherlands v. USA), 2 UN Rep. Int’l Arb. Awards 829 (1928) at 839; Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) Judgment, ICJ Rep 1970 3 at 33; Lac Lanoux Arbitration (Spain v. France), 7 UN Rep. Int’l Arb. Awards 281 (1957) at para 1. 48  See Sands and Peel, Principles of International Environmental Law, 193. 49  See, for instance, UNGA Res. 35/7 (1980) para 2: The General Assembly invites its Member States “in the exercise of their permanent sovereignty over natural resources, to conduct their activities in recognition of the supreme importance of protecting natural systems, maintaining the balance and quality of nature and conserving natural resources, in the interests of present and future generations.” See also UNGA Res. 1629 (XVI) (1961) para 1; Res. 3281 (XXIX) (1974), Article 30. Schrijver holds that if one reads the principles of the Stockholm Declaration in relation to each other, it could be argued that the declaration “stipulates that sovereignty over natural resources must be exercised in an environmentally responsible way and for the benefit of both present and future generations”: Schrijver, Sovereignty over Natural Resources, 127. 50   Especially of the UN Conferences on the Human Environment (1972 Stockholm Declaration) and on Environment and Development (1992 Rio Declaration): “Declaration of the United Nations Conference on the Human Environment“ (1972 Stockholm

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General Assembly resolutions and case law. Gradually, there seems to be a conceptual shift towards a general responsibility of States to protect and preserve the environment, which is due to the international community as a whole (erga omnes). In a way, this shift has been anticipated in the negotiation of UNCLOS Part XII, which contains erga omnes obligations. In order to allow the provisions to take effect, however, they have to be interpreted in light of the evolution of general international environmental law. This includes the fact that States are increasingly accountable for the way they manage their natural resources.51 Exclusive rights of States over natural resources (and, in general, “matters which are essentially within the domestic jurisdiction of any State” as protected by Article 2.7 of the UN Charter) are qualified by increasing cognizance of interests of humankind and future generations.52 Consequences for the management of marine resources within zones that UNCLOS sets under the national jurisdiction, even of limited nature, of coastal States, are straight: the shift of emphasis in international policy and law strongly suggests a strict interpretation of the duty to protect and preserve the marine environment as contained in UNCLOS Articles 192 and 193 in a sense which gives these provisions more weight than in past practice. The coastal States are responsible for a proper management of their marine resources. Principles such as sustainable development and intergenerational justice even support the importance of coastal states’ responsibility “for ensuring long-term sustainability of living marine resources” within their EEZ (Article 56(1)) and for ensuring that “the maintenance of the living resources (…) is not endangered by over-exploitation” (Article 61(2)). Accordingly, the consideration of interests of humankind as a whole, and future generations in particular, in the exercise of sovereign rights over natural resources suggests the threshold of liability for violations of the duty to protect and conserve the marine environment (Article 235) to be rather low, and not to be confined to sporadic cases of strong pollution. Instead, destructive patterns of behaviour and policies that cause, or allow, continuous resource depletion and ocean degradation should be regarded as reasons for non-compliance with the respective obligations. States have, however, no interest in such a strict regime, and would not denounce other States for non-compliance because of a behaviour that they themselves exhibit. Admittedly, it is difficult to determine to what extent Declaration) in Report of the Stockholm Conference, UN Doc. A/CONF.48/14/Rev. 1 (1972) 3, Reprinted in 11 ILM 1416 (1972); “1992 Rio Declaration on Environment and Development”, UN Doc. A/CONF.151/26/Rev.1. 51  See South China Sea Arbitration (the Philippines v. China), PCA (Arbitral Tribunal 2016) Case No 2013–19, 373–97. 52  Schrijver, Sovereignty over Natural Resources, 336.

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a specific country is responsible for the general deterioration of the state of the ocean. For these reasons, the implementation of the duty to protect and preserve the marine environment in zones under national jurisdiction remains feeble and unsatisfactory.53 States’ Environmental Responsibilities with regard to Areas Beyond National Jurisdiction On the high seas, conservation of living resources is to be achieved by international cooperation (Article 118). This is also true for the determination of the allowable catch of living resources in the high seas (Article 119). For the currently 89 Parties of the Fish Stocks Agreement of 4 August 1995, the respective provisions in UNCLOS are to be read in conjunction with those of the agreement.54 In order to provide effective mechanisms for compliance and enforcement on the high seas and to ensure coherence in the management of straddling or highly migratory fish stocks, the Fish Stocks Agreement establishes detailed minimum international standards for the conservation and management of these species. With the exception of Articles 5–7, the agreement applies exclusively to areas beyond national jurisdiction.55 This might seem contradictory to the ecosystem approach, which as a basic principle applies to the agreement’s provisions. The ecosystem approach, as “a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way”,56 would suggest ecosystems to be addressed in their entirety by a single regime. States, however, are more interested in safeguarding the limits of their national jurisdiction than to expand a regime under common control (if not out of control).57 As a consequence, 4.2

53  See Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” 11; Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution, 87. 54  In order to enhance the protection of living resources in the high seas, the UN Food and Agriculture Organization elaborated some voluntary International Guidelines for the Management of Deep-sea Fisheries in the High Seas: FAO, Report of the Technical Consultation on International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, FAO Fisheries and Aquaculture Report 881 (Rome: FAO, 2009), Appendix F. 55  See Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” 9. Article 5 of the Fish Stocks Agreement contains a list of general principles. Article 6 sets out the precautionary approach for the purpose of the agreement. Article 7 seeks to ensure compatibility of conservation and management measures taken within and beyond areas of national jurisdiction. 56  C BD Conference of the Parties (COP) Decisions V/6, Annex A (1). 57  See Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” 8 and 10.

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the separation of the ocean into different regimes within and beyond national jurisdiction, respectively, is, for the time being, a matter of fact, even if not a desirable one.58 With regard to the deep seabed, UNCLOS Article 145 provides that mea­ sures are to be taken in order to ensure that activities in the Area do not have harmful effects on the marine environment. The provision requests the International Seabed Authority to adopt appropriate rules for prevention of damage to the wild flora and fauna.59 The question of whether or not living (genetic) resources on the deep seabed and in its subsoil fall under the common heritage of mankind regime is disputed. Depending on the point-of-view, deep-seabed resources can either be freely accessed by all States (having the means to access them), and rules for the protection of intellectual property apply to processes and substances developed from these resources, or, alternatively, they can only be prospected and used for the benefit of humankind as a whole, with all the corresponding institutional implications.60 As long as the matter is not clarified and no compromise is found, the supporters of the opinion that living resources of the deep seabed fall under freedom of the high seas seem to be in a stronger position, since they can hardly be prevented from exploiting the resources and presenting their opponents with a fait accompli. The development of an international legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction is, therefore, firmly on the agenda of the United Nations General Assembly.61 At its 72nd session, it decided to convene 58  Ibid., 11, supported by the comments of Louise Angélique de La Fayette, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction – Commentary on Tullio Treves,” in The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments, ed. A.G. Oude Elferink and E.J. Molenaar (Koninklijke Brill NV, 2010), 39. 59  The General Assembly repeatedly emphasised the importance of the International Seabed Authority’s on-going work in this field, see UNGA Resolutions A/RES/63/111 (12 February 2009) para 33; A/RES/64/71 (12 March 2010) para 33; A/RES/65/37 (17 March 2011) para 42; A/RES/66/231 (5 April 2012) para 41; A/RES/67/78 (18 April 2013) para 48; A/ RES/68/70 (27 February 2014) para 45. 60  For more details on the respective debate, see Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” 16–19; Kirsten E. Zewers, “Bright Future for Marine Genetic Resources, Bleak Future for Settlement of Ownership Rights: Reflections on the United Nations Law of the Sea Consultative Process on Marine Genetic Resources,” Loy. U. Chi. Int’l L. Rev. 5 (2007): 170; Louise Angélique de La Fayette, “A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction,” The International Journal of Marine and Coastal Law 24, no. 2 (2009): 224, doi:10.1163/157180809X421752. 61  U NGA Resolution A/RES/69/292 (19 June 2015).

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an intergovernmental conference for this purpose. Yet, no agreement has been reached so far on the regime applying to these resources.62 On the whole, the legal implications of the principle of the common heritage of humankind remain vague. Arguably, the principle of non-appropriation, (limited) international management, access and benefit sharing, a reservation for peaceful purposes and the principle of sustainable development, including its reference to future generations, may be inherent to the concept.63 Yet, through the restrictions by the implementing agreement of 1994 and the limited geographical and thematic scope of the concept in UNCLOS,64 the principle of common heritage of humankind remains, for the time being, toothless and ineffective. Therefore, none of the two principles governing marine areas beyond national jurisdiction, whether they are complementary or contradictory, provides the necessary instruments for sound management and governance of ocean resources. Accordingly, they do not provide the necessary means to preserve options, the quality of the planet and access to its resource base for future generations. 5

The Protection and Preservation of the Marine Environment as a Common Concern of Humankind

The obligation to protect and preserve the marine environment is clearly a cornerstone of the UNCLOS regime and can be found as an underlying principle throughout the Convention. Implementation is, however, uneven, and, overall, unsatisfactory.65 As a matter of fact, fish stocks continue to decline throughout the world, and human activities on land and the seas put increasing stresses 62  See IISD, “Summary of the Third Session of the Preparatory Committee on Marine Biodiversity Beyond Areas of National Jurisdiction: 27 March–7 April 2017,” Earth Negotiations Bulletin: PrepCom 3 Final 25, no. 129 (April 10, 2017): 3. 63  Schrijver, Sovereignty over Natural Resources, 218–20. 64  The establishment of the EEZ and the extension of the continental shelves beyond the limit of 200 nautical miles have substantially reduced the geographical scope of the common heritage concept. The thematic scope is confined by the fact that it is, supposedly, limited to mineral resources. See ibid., 228. 65  See Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” 12. According to Hassan, UNCLOS does not provide a framework for a sustainable and sound ocean management and “does not give guidance to nations on how to govern ocean and coastal areas in an integrated manner, or how to deal with the effects of one use on other uses, or how to bring ocean and coastal management together.”: Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution, 87.

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and strains on the oceans to the extent that the capacity of the marine environment to regenerate may have passed its limit.66 Nevertheless, the attitude that the ocean is vast and sufficiently resilient, no matter ‘how much we take out of – or put into – it, still seems pervasive.67 State sovereignty is a supreme value in the current system of resource management, and its implications for the management of ocean resources are fundamental. Beyond the realm of these national jurisdictions, resources need to be managed, protected and preserved by the international community. In the absence of real stewardship by the international community, the ocean is exposed to free riding and over-exploitation and is suffering the tragedy of the commons.68 This becomes more evident since the assumptions upon which the concept of freedom of the high seas was originally based have been proven wrong: while life in the oceans is abundant and manifold, its resources are, in view of todays’ means and techniques of exploitation, not nearly as inexhaustible as it must have been assumed at times when the concept was shaped.69 Under the constant pressure of human activities, marine ecosystems seem more fragile than ever before. Presumed as non-rivalrous70 and nonexcludable,71 the oceans’ quality as a global public good is heavily qualified by unsustainable management patterns and resulting resource depletion and the deterioration of the marine environment. It becomes increasingly obvious that marine resources are limited, as is the oceans’ capacity to regenerate. As a result, conflicts of interest are intensified, both among States and within States with regard to different uses and policy concerns, including commercial exploitation and environmental protection. The uneven exploitation of marine resources also aggravates equity concerns, both with regard to landlocked and poor countries and with regard to future generations. The world of nature ignores the political boundaries and legal entities into which we have divided the planet. Global warming, ozone layer depletion and the deterioration of the marine environment on a global scale, including through massive pollution by plastic debris, acidification and biodiversity loss, 66  United Nations, “UNCLOS at 30,” 6; Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” 22. 67  Earle, The World Is Blue, 17–18: “Since the middle of the 20th century, hundreds of millions of tons of ocean wildlife have been removed from the sea, while hundreds of millions of tons of wastes have been poured into it.” 68  Hardin, “The Tragedy of the Commons.” 69  See Thomas Cottier, “The Emerging Principle of Common Concern: A Brief Outline” (Bern: WTI/NCCR Trade Regulation, May 2012), http://www.nccr-trade.org/publication/. 70  The consumption of a non-rivalrous good by one person does not diminish consumption by another person. 71  A good is non-excludable when no one can be excluded from its benefits.

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make us increasingly aware of the interdependency of natural ecosystems. Accordingly, and in line with economic and cultural globalisation processes, the perception of State sovereignty is undergoing significant changes in international law. Global concerns exceed national regulatory capacities and competences, and fall outside the scope of purely national jurisdiction. They do not fall “essentially within the domestic jurisdiction of any State” (of Article 2.7 of the UN Charter). Instead, the interests of humankind as a whole, including future generations, come into focus. At a national level, the State is the provider of public goods such as public education or healthcare systems, basic infrastructure or national defence. Cross-border issues and matters of global reach and impact, however, call for a collective answer.72 It is the international community who preserves global commons and provides global public goods. Especially in the field of the environment, States have taken recourse to the concept of common concern. They have defined climate change and the conservation of biodiversity as matters of common concern to humankind.73 In doing so, they declared these issues to “be a legitimate object of international regulation and supervision”, which go beyond the reserved domain of domestic jurisdiction.74 While the concept of common concern is not clearly defined yet, it assumingly applies to problems that cannot be solved by individual States alone and issues of common interest. Equity concerns are inherent to common concerns when there is the problem of free riders and when costs of inaction or of an undersupply of a global public good that can be traced back to a lack of cooperation, are not equally shared within or between generations. In an issue of common concern, all the States have thus an individual and collective legal interest in its protection or the supply of a global public good. The concept implies three different levels: first and foremost, it emphasises the domestic duties of States within their environmental responsibility, such as provided for in different parts of UNCLOS. Secondly, it underpins the duty to cooperate at different levels. Such a duty is already contained in UNCLOS and 72  Inge Kaul, Isabelle Grunberg, and Marc A. Stern, eds., Global Public Goods: International Cooperation in the 21st Century (New York: Oxford University Press, 1999), xii; Cottier, “The Emerging Principle of Common Concern,” 5. According to Cottier and MatteottiBerkutova, we observe a “breakdown of territoriality” in some areas of regulation, “as the principle is not able to regulate the matter effectively”. The management of marine living resources is one such area: Cottier and Matteotti-Berkutova, “The Evolving Concept of ‘Common Concern of Mankind,’” 25. 73  C BD Preamble; “United Nations Framework Convention on Climate Change“ (UNFCCC) (opened for signature on 9 May 1992, in force since 21 Mars 1994) 1771 UNTS 107, Preamble. 74  Cottier and Matteotti-Berkutova, “The Evolving Concept of ‘Common Concern of Man­ kind,’” 29.

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customary law. The fact that UNCLOS requires States to cooperate at different levels of governance in the protection and conservation of the marine environment reflects the collective nature of the interest in a sound marine environment. The third level of the concept is the most innovative one and adds the most to the current framework: if a State neglects its duty and refuses cooperation, and thereby aggravates a problem of common concern, every other State has a right to take unilateral action in protection of the issue of common concern. Such actions include trade and other measures and may affect the non-complying State. Limits to counteractions include the respect of other international obligations of States (as defined, for instance, by WTO law), the duty to consult first and proportionality of the retaliation. In view of the ocean’s vital importance for the well-being of the planet and its continuous deterioration under the current regime, sustainable ocean governance, and the protection and preservation of the marine environment and its resources in particular, is to be considered as a common concern of humankind and set under the common responsibility of the international community. While the cause of the gradual deterioration of the marine environment is diffuse and responsibilities of individual States cannot always be measured easily, main polluters and exploiters will not necessarily suffer the severest consequences of marine pollution and over-exploitation of marine resources. The degree to which States, peoples and areas are affected by unsustainable ocean governance rather depends on income level and geographical location. In any case, mitigation will benefit the community as a whole. Applying the concept of common concern to ocean governance and the protection and conservation of the marine environment and marine living resources in particular will have several possible implications. First and foremost, the concept can serve as a foundation for a legal interest of all States in the protection of the area of common concern. Under the current regime, every State has the general duty to protect and preserve the marine environment. States also have a duty to cooperate in this very field, both for areas under and even more so for areas beyond national jurisdiction. This duty to cooperate is clearly expressed in UNCLOS and has been confirmed in case law.75 The recognition of the preservation of the marine environment as an issue of common concern would allow the international community, and subsidiarily individual States, to take measures to enhance compliance. The international community would have to set up more effective institutions with the power

75  See, for instance, MOX Plant at para 82.

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to define reliable standards and monitor their implementation.76 It is also the responsibility of the international community to strengthen capacities of lowincome States in order to allow them to comply with their duties.77 In absence of stewardship by the international community and in case of non-compliance by individual States with their respective duties, States can, under the concept of common concern, take unilateral actions.78 This could mean, for instance, that a State may, when in accordance with WTO law, ban or otherwise restrict the import of overfished or endangered species from other States who do not cooperate and participate in preservation efforts. A State might also consider trade restrictions in case of significant pollution by river run-offs or coastal industries which can be traced back to a lack of effective national environmental regulations or their enforcement. Besides trade measures, States might also be entitled to patrol for illegal fishing in the EEZ of other States if they themselves neglect their duty to do so. Common concerns are to be addressed in a sustainable way, transparently integrating and balancing different interests and taking into account concerns of inter- and intragenerational justice. In this sense, the concept of common 76  Dinah Shelton, “Common Concern of Humanity,” Iustum Aequum Salutare 5 (2009): 34. See also Frank Biermann, “‘Common Concern of Humankind’: The Emergence of a New Concept of International Environmental Law,” Archiv Des Völkerrechts 34, no. 4 (December 1, 1996): 465 ff. 77   Cottier and Matteotti-Berkutova, “The Evolving Concept of ‘Common Concern of Mankind,’” 27–38. See also Schrijver, Sovereignty over Natural Resources, 250: “This would undoubtedly require a further evolution of present international law, which is mainly State-oriented and under which national resource regimes co-exist but barely interact, towards one which is humankind-oriented and under which environmental preservation and sustainable development are approached from a global perspective: in short an international law under which international co-operation will seek to ensure equitable sharing, management of the global commons and its preservation for future generations.” 78  Thomas Cottier et al., “The Principle of Common Concern and Climate Change” (WTI/ NCCR Trade Regulation, June 2014), 21–23, http://www.nccr-trade.org/publication/; Krista Nadakavukaren Schefer and Thomas Cottier, “Responsibility to Protect (R2P) and the Emerging Principle of Common Concern” (Bern: WTI/NCCR Trade Regulation, June 2012), 6, http://www.nccr-trade.org/publication/. See also United States – Import Prohibition of Certain Shrimp and Shrimp Products (US Shrimp), WT/DS58/AB/R Appellate Body Report (1998): in this case, the Appellate Body of the World Trade Organization recognised “the existence of a ‘sufficient nexus’ between migratory and endangered populations of seaturtles located in Asian waters and the United States to allow the latter to claim an interest in their conservation”. Sands and Peel argue that the Appellate Body seemed sympathetic to an approach taking into account “an ecologically interdependent world in which limits are placed on the exercise of sovereignty”: Sands and Peel, Principles of International Environmental Law, 193.

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concern constitutes a valuable framework for the realisation of sustainable development on a global scale in the context of ocean governance, including with regard to intergenerational equity considerations. The principle of sustainable development requires the world to be seen as a single system in space and time, a system in which the elements cannot be separated from one another but, “in one spirit meet and mingle”. The concept of common concern accommodates this request.

Chapter 5

Equity across Generations in International and Domestic Water Law Otto Spijkers 1 Introduction Water law regulates the use of freshwater resources, such as rivers, lakes, wetlands, aquifers, and glaciers. Many of these freshwater resources can be depleted, destroyed and polluted, like other natural resources. The most urgent problems when it comes to the sustainable utilisation of freshwater resources are water pollution, depletion of non-rechargeable underground water and fossil water, and diversion of freshwater resources in a way that negatively affects the ecosystem of which such resources often constitute the beating heart. If we care about the plight of future generations, it is necessary for the present generation to use these freshwater resources sustainably, in a way that does not compromise the ability of future generations to benefit from the same resources. There are different ways to give substance to this obligation of sustainable use.1 It could be argued that the present generation must leave 1  See e.g., Edith Brown Weiss, In fairness to future generations: international law, common patrimony, and intergenerational equity, United Nations University, 1989; Subrata Roy Chowdhury, ‘Intergenerational equity: substratum of the right to sustainable development’, in Chowdhury, Hendrikus Maria Gerardus Denters (editors), The right to development in international law, Nijhoff, 1992, pp. 233–257; Edith Brown Weiss, ‘Intergenerational equity: a legal framework for global environmental change’, in Edith Brown Weiss (editor), Environmental change and international law: New challenges and dimensions, United Nations University Press, 1992 (available at http://archive.unu.edu/); Edith Brown Weiss, ‘Intergenerational equity and rights of future generations’, in Thomas Buergenthal, Pedro Nikken (editors), The modern world of human rights: essays in honour of Thomas Buergenthal, IIDH, 1996, pp. 601– 619; K.I. Vibhute, ‘Environment, present and future generations: inter-generational equity, justice and responsibility’, in the Indian Journal of International Law , vol. 38 (1998), issue 1, pp. 65–73; Lynda M. Collins, ‘Revisiting the Doctrine of Intergenerational Equity in Global Environmental Governance’, in the Dalhousie Law Journal, vol. 30 (2007), issue 1, pp. 79–140; Malgosia Fitzmaurice, ‘Intergenerational Equity revisited’, in Gerhard Hafner and Isabelle Buffard (editors), International law between universalism and fragmentation: Festschrift in Honour of Gerhard Hafner, Nijhoff, 2008, pp. 195–229; Dinah Shelton, ‘Intergenerational Equity’, in Rüdiger Wolfrum, Chie Kojima (editors), Solidarity: a structural principle of

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_007

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freshwater resources in exactly the same condition in which they were found. According to a recent report of the United Nations Secretary-General, “nearly all human traditions recognise that the living are sojourners on Earth and temporary stewards of its resources.”2 It could also be argued that the present generation can fully exploit these resources, as long as it provides future generations with an alternative, or as long as the present generation provides future generations with the means (technologies) to repair what the present generation has destroyed. Of course, a middle position is also available: one could argue that the present generation must find an equitable balance between satisfying its own needs and those of future generations. Leaving an equitable share of the benefits and burdens of freshwater utilisation to future generations is not the same as leaving them an equal share, but it means more than leaving to future generations only the minimal resources they need to stay alive. After all, from the previous generations, we – the present generation – inherited much more than that. It could be argued that what the past generations offered to the present generation, we now owe to future generations. In short, the general question of equity across generations also resurfaces in the context of water. The aim of this paper is not to provide an answer to these big philosophical questions. This is a paper about water law; it is only indirectly about moral or philosophical obligations or theories of intergenerational equity. The purpose is to show in what way these big philosophical questions have influenced the development and continuous evolution of international and domestic water law. In essence, the research question is as follows: how is the principle of intergenerational equity applied in existing water law?

international law, Springer, 2010; Edith Brown Weiss, ‘Implementing Intergenerational Equity’, in Malgosia Fitzmaurice, David M. Ong, and Panos Merkouris (editors), Research handbook on international environmental law, Elgar, 2010; Gail E. Henderson, ‘Rawls and Sustainable Development’, in McGill international journal of sustainable development law and policy, vol. 7 (2011), issue 1, pp. 1–32; Clark Wolf, ‘Environmental Ethics, Future Generations and Environmental Law’, in Andrei Marmor (editor), The Routledge companion to philosophy of law, Routledge, 2012, pp. 397–413; Burns H. Weston, ‘The Theoretical Foundations of Intergenerational Ecological Justice: an Overview’, in the Human rights quarterly, vol. 34 (2012), issue 1, pp. 251–266; Peter Lawrence, ‘Justice for Future Generations: Environment Discourses, International Law and Climate Change’, in Brad Jessup, Kim Rubenstein (editors), Environmental discourses in public and international law, 2012, pp. 23–46; Intergenerational solidarity and the needs of future generations, Report of the Secretary-General of the United Nations, UN Doc. A/68/322, distributed 15 August 2013, etc. 2  Intergenerational solidarity and the needs of future generations, Report of the SecretaryGeneral of the United Nations, p. 4.

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Before addressing this question, it is useful to further delineate the research, by clarifying what this contribution is not about. First of all, this contribution does not analyse the principle of intergenerational equity in a general sense, but only in its application to water resources. The principle might have a different meaning depending on the natural resource and context to which it is applied – be it air, sunlight, oil, gas, forests, plants, animals, or water. Or it might permit a cross-cutting application, regardless of the resource, as is proposed for example in the so-called “sustainable landscape approach to development”.3 In this contribution, we will not take a position in this debate, and limit ourselves to an analysis of the water law context. This is not to suggest that the principle of equity has evolved in that context in splendid isolation. Indeed, developments elsewhere – for example with respect to the law of the sea – do feed into the process of evolution of the principle as applied to water resources.4 But an examination of this crossfertilisation is beyond the scope of this paper. This paper is largely descriptive in nature, not normative. At the same time, the international and domestic regulations and policies referred to in this paper might serve as examples for States that have not yet adopted similar regulations and policies. They have been selected because they contain interesting ideas on how to give meaning to intergenerational equity in the framework of water law. They are to be considered best practices, and thus do not necessarily paint a representative picture of the current state of water law. Most water laws pay much less attention to intergenerational equity than the examples referred to in this paper. This paper does not look at regional water law, such as the water law of the European Union. To do so would require an exploration of the particularities of this specific regional legal order, without which it is difficult to understand the EU legislation in this field. At the same time, it must be kept in mind, when we analyse some of the agreements between Member States of the European Union that regulate a particular transboundary watercourse, and when we analyse the domestic water law of some EU Member States, that these are heavily influenced by EU water law, especially the Water Framework Directive of 2000.5 3  See e.g., David Treguer, David and Eija Pehu, Moving toward a sustainable landscape approach to development, World Bank Group, 2014. 4  See Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: the Quest for Distributive Justice in International Law, Cambridge University Press, 2015. 5  Water Framework Directive, directive 2000/60/EC, adopted by the European Parliament and the Council of Ministers of the European Union on 23 October 2000. The aim of the Directive was to promote a more coherent water policy with the adoption of a European framework

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After a brief introduction to the principle of intergenerational equity in international (environmental) law, this paper zooms in on the role of the same principle in the general framework of international water law. It explores some examples of agreements regulating the shared use of a particular watercourse, and looks to examples of the principle’s application in domestic water law. Finally, the paper examines domestic policies which aim to apply the intergenerational equity principle to water law and offers a few general concluding remarks. 2

Future Generations in International (Environmental) Law

According to the highly influential UN report “Our Common Future”, the essence of sustainable development is that the development policy of States must meet the needs of the present generation without compromising the ability of future generations to meet their own needs.6 And the essence of the legal principle of intergenerational equity is that States ought to conserve and use the environment and natural resources for the benefit of both present and future generations.7 “Our Common Future” is a report drafted by the World Commission on Environment and Development, chaired by Gro Harlem Brundtland of Norway, and usually referred to simply as the Brundtland Report.8 The main theme of the report was that the global economy and global ecology were “locked together”: they were inseparable.9 The most pressing developmental problems, such as poverty and hunger, and the most pressing environmental problems, such as desertification and global for water management and water protection for each river basin district. We find plenty of references to sustainable development therein. Most importantly, Article 1 identified, as one of the purposes of this Directive, the establishment of a framework for the protection of water resources which “prevents further deterioration and protects and enhances the status of aquatic ecosystems”, and “promotes sustainable water use based on a long-term protection of available water resources”. 6  “Our Common Future”: Report of the World Commission on Environment and Development, transmitted to the General Assembly by the Secretary-General on 4 August 1987, UNDoc. A/42/427, para. 27. 7  Summary of Proposed Legal Principles for Environmental Protection and Sustainable Development, adopted by the WCED Experts Group on Environmental Law, published in Our Common Future, principle 2. 8  “Our Common Future”: Report of the World Commission on Environment and Development, transmitted to the General Assembly by the Secretary-General on 4 August 1987, UNDoc. A/42/427. 9  Ibid., para. 15, on p. 21.

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warming, were so closely connected that they essentially constituted different sides of the same coin. All of these problems were caused by a type of development which was unsustainable, in the sense that it left “increasing numbers of people poor and vulnerable, while at the same time degrading the environment.”10 The challenge was to make development sustainable, i.e. “to ensure that [development] meets the needs of the present [generation] without compromising the ability of future generations to meet their own needs.”11 This description of the concept of sustainable development has become the most authoritative that the international (legal) order has at its disposal, despite the fact that it is contained in a report, which is clearly not a source of international law, in the sense that it is not legally binding on States.12 In short, if we want to understand how sustainable development and intergenerational equity relate to each other in the language of international law, it is best to see the former as an objective of the international community; and the latter as one of the legal principles that must be applied in order to achieve this objective. Intergenerational equity is not the only legal principle relevant for realising the objective of sustainable development. Other relevant principles include intragenerational equity, public participation, and the principle of integration of the social, economic, environmental, and human rights aspects of development.13 10  Ibid., para. 10, on p. 20. 11  Ibid., para. 27. 12  A lot has been written, since the Brundtland Report was published, on the meaning of sustainable development in international law. See for example, Elisabeth Bürgi Bonanomi, Sustainable Development in International Law Making and Trade International Food Governance and Trade in Agriculture, Elgar, 2015; Marie-Claire Cordonier Segger and Ashfaq Khalfan (editors), Sustainable Development Law: Principles, Practices, and Prospects, Oxford University Press, 2004; Christina Voigt, Sustainable development as a principle of international law: resolving conflicts between climate measures and WTO law, Nijhoff, 2009; Christina Voigt, Rule of law for nature: new dimensions and ideas in environmental law, Cambridge University Press, 2013; Hans Christian Bugge & Christina Voigt (editors), Sustainable development in international and national law: what did the Brundtland report do to legal thinking and legal development, and where can we go from here?, Europa law publishing, 2008; Marie-Claire Cordonier Segger & Markus Gehring, The Concept of Sustainable Development and its Meaning in International Law, in Asif H. Qureshi and Xuan Gao (editors), International Economic Law: Critical Concepts in Law, Routledge, 2011; and, Marie-Claire Cordonier Segger, Sustainable Development in International Law, in David Armstrong (editor), Routledge Handbook of International Law, Routledge, 2009. 13  See especially the Rio Declaration on Environment and Development, published in the Report of the United Nations Conference on Environment and Development, held in Rio de Janeiro, between 3 and 14 June 1992, UNDoc. A/CONF.151/26/Rev.l (Vol. l) (“Rio Declaration on Environment and Development”). The General Assembly unanimously

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Both sustainable development and intergenerational equity are about balancing the developmental needs and opportunities of the present generation with those of future generations. But how exactly can we balance the two? In 1992, the Rio Declaration was adopted. In this highly influential declaration on sustainable development, the principle of intergenerational equity was formulated. According to this principle, “[t]he right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”14 It is interesting to note that this principle refers to the right to development. This is a reference to the Declaration on the Right to Development, adopted a few years earlier in 1986.15 In this declaration, development itself was described as: [an] economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom.16 Then the right to development was defined as the “inalienable human right” by virtue of which every human person and all peoples are entitled to participate in this process.17 It was primarily the States who were responsible for “the creation of national and international conditions favourable to the realisation of the right to development.”18 But the Declaration also emphasised the “responsibility for development” that all individuals have.19 endorsed this declaration in resolution 47/190, adopted 22 December 1992. And see the New Delhi Declaration of Principles of International Law relating to Sustainable Development, adopted by the International Law Association, adopted 6 April 2002, UN Doc. A/CONF.199/8, and published, with an introduction by Nico Schrijver, in the Netherlands International Law Review (2002), pp. 299–305. 14  Rio Declaration on Environment and Development, principle 3. On this principle, see Claire Molinari, ‘Principle 3: from a Right to Development to Intergenerational Equity’, in Jorge E. Viñuales (editor), The Rio declaration on environment and development: a commentary, Oxford University Press, 2015, pp. 139–156. 15  The following paragraph is based on the section on the Declaration on the Right to Development in Spijkers, The United Nations, the Evolution of Global Values and International Law. 16  Declaration on the Right to Development, General Assembly resolution 41/128, adopted 4 December 1986 (“Declaration on the Right to Development”), Preamble. 17  Ibid., Article 1. 18  Ibid., Article 3(1). 19  Declaration on the Right to Development, Article 2 (2).

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In 1986, the right to development was thus defined as a right to participate in a process of development; it was not defined as a right to be developed, whatever that might mean. In 1992, participants in this process of development were reminded to participate in this process in such a way as to “equitably meet developmental and environmental needs of present and future generations.” Future generations were not entitled to participate themselves in the process of development, nor were they entitled to the benefits of this process. Instead, the 1992 Rio Declaration imposed an additional obligation on all those presently participating in the process of development: individuals, peoples, States, and the international community as a whole. They must make use of their right to participate in the process of development in such a way that future generations, once born, can also participate meaningfully in the same process.20 What does this tell us about the meaning of intergenerational equity? It tells us that the principle of intergenerational equity requires of the current participants in the process of development that they do not compromise the ability of the future generations to participate in the same process. 3

Future Generations in General International Water Law

How does this intergenerational continuity take shape in international water law? To find the answer, the Convention on the Law of the Non-Navigational Uses of International Watercourses (“Watercourses Convention”) is the starting point.21 This multilateral treaty is generally considered to provide the global legal framework. It does not have all that many States Parties, but it is generally considered to reflect customary international law, binding on all States.22

20  An interesting declaration worth mentioning is the Declaration on the Responsibilities of the Present Generations Towards Future Generations, adopted 12 November 1997 by the United Nations Educational, Scientific and Cultural Organization (UNESCO). According to this Declaration, “the present generations have the responsibility of ensuring that the needs and interests of present and future generations are fully safeguarded” (article 1). This declaration never had the influence and authority the Rio Declaration acquired. 21  Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted in New York, 21 May 1997, entry into force 17 August 2014. Text is available as UNDoc. A/51/869, or as annex to United Nations General Assembly resolution A/ RES/51/229 of 21 May 1997. 22  In February 2018, the Convention had 36 States Parties.

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International water law deals mostly with the shared utilisation of transboundary rivers, lakes, aquifers, and their ecosystems. Traditionally, international water law was primarily about obligations one State owed to another State with whom it happened to share a particular freshwater resource. This explains the predominance, in international water law, of the no harm principle, according to which any State must take all appropriate measures to prevent any use of an international watercourse, located within its territory, from causing significant harm to another State. We find this principle in Article 7 of the Watercourses Convention, which reads as follows: [w]atercourse States shall, in utilising an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States. A similar provision is found at Article 2 of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes of the United Nations Economic Commission for Europe (“UNECE Convention”), according to which States must “prevent, control and reduce any transboundary impact.”23 Transboundary impact is defined, in Article 1(2) of the same convention, as “any significant adverse effect on the environment […] within an area under the jurisdiction of another Party”.24 The UNECE Convention is the other global convention on international water law, coexisting together with the Watercourses Convention. The no harm rule protects one State from harmful effects caused by activities of another State – or activities taking place within the territory of another State. But it does not protect the future generations from harmful effects caused by the present generation. In recent days, attention is increasingly paid to obligations the present generation owes to future generations with whom it also “shares” a freshwater resource. How can and does international water law deal with these concerns? This is a question about intergenerational equity, i.e. the relationship between the present generation and future generations, and not about intragenerational equity, i.e. the relationship between different communities (States) existing within the present generation. One could imagine a version of the no harm rule which prohibits both intra- and intergenerational harm: 23  Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted in Helsinki, 17 March 1992, entry into force 6 October 1996. The Convention had 41 States Parties in August 2017. See United Nations, Treaty Series , vol. 1936, p. 269. 24  Article 2 of the UNECE Convention.

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[w]atercourse States shall, in utilising an international watercourse situated within their territories, take all appropriate measures to prevent the causing of significant harm to both the present and future generations of other watercourse States as well as their own. Such an approach to this so-called no harm rule is as yet not reflected in existing international water law.25 But existing international water law is not formulated in such a way as to explicitly exclude such an intra- and intergenerational version of the no harm rule, or hinder its emergence through practice. Existing international water law is not entirely silent when it comes to intergenerational relations and concerns. The most relevant provision is Article 5 of the Watercourses Convention, which reads as follows:26 [w]atercourse States shall in their respective territories utilise an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilisation thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse. Article 5 does not make explicit whether the obligation of equitable utilisation is restricted to balancing the uses of different States sharing a watercourse at present times (intragenerational equity), or whether it includes an obligation to balance the rights and uses of the present and the future generation (intergenerational equity). One might expect the reference to “sustainable utilisation” in Article 5 to be of some relevance here. But the International Law Commission’s commentary to the convention’s text said very little about the intended meaning of

25  See also the Berlin Rules, Commentary to Article 8. The Berlin Rules on Water Resources, approved by the International Law Association’s Water Resources Law Committee in 2004, published in the International Law Association Reports of Conferences (2004), vol. 71, part II: Water Resources Law, pp. 334–421 (http://internationalwaterlaw.org/docu ments/intldocs/ILA_Berlin_Rules-2004.pdf). 26  According to the Convention’s Preamble, the Watercourses Convention was inspired by a shared conviction among States that “a framework convention will ensure the utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilization thereof for present and future generations.”

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“sustainable utilisation.”27 Others jumped in to provide a definition, and an interesting proposal came from the International Law Association. In 2004, it defined “sustainable use” as follows: [t]he integrated management of resources to assure efficient use of and equitable access to waters for the benefit of current and future generations while preserving renewable resources and maintaining nonrenewable resources to the maximum extent reasonably possible.28 The suggestion was to link sustainable use to equitable use in such a way that equitable use implies an obligation to ensure equitable access to waters for both present and future generations. If Article 5 of the Watercourses Convention makes one thing clear, it is that the obligation of equitable and reasonable utilisation of an international watercourse includes sustainable utilisation thereof. But what does this mean concretely? Article 6 of the Watercourses Convention might be of some help here. This provision reads as follows (where relevant): [u]tilisation of an international watercourse in an equitable and reasonable manner within the meaning of article 5 requires taking into account all relevant factors and circumstances, including […] existing and potential uses of the watercourse [emphasis added]. In the ILC commentary accompanying this provision, it is explained that inclusion of this factor in the list was done “in order to emphasize that neither [existing nor potential use] is given priority, while recognizing that one or both factors may be relevant in a given case.”29 In other words, the existing and potential uses of the watercourse must be balanced against each other. 27  I LC, Draft articles on the law of the non-navigational uses of international watercourses and commentaries thereto, published in the Yearbook of the International Law Commission, 1994, vol. II, Part Two. This has a good reason: the reference to “sustainable use” was added at the request of the Netherlands and Finland, when the ILC’s Draft articles on the law of the non-navigational uses of international watercourses, which were finished in 1994 and constituted the basis of the text of the Watercourses Convention, which was itself adopted in 1197, were discussed by the States. See the Summary records of the 15th meeting of the Sixth Committee of the UN General Assembly, held on Tuesday, 8 October 1996, UN Doc. A/C.6/51/SR.15, p. 2. 28  Berlin Rules, Article 3(19). The Commentary explains that this definition was derived from declarations on sustainable development, such as the Rio Declaration of 1992. 29  International Law Commission, Draft articles and commentaries thereto adopted by the Drafting Committee on second reading (1994), p. 101.

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The UNECE Convention has a clear reference to future generations. According to this Convention, State parties to the Convention shall be guided, inter alia, by the principle that “water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.”30 This is a clear reference to the concept of sustainable development as defined in the Brundtland Report. 4

Future Generations in Specific International Agreements

One way in which the intergenerational equity principle might crystallise into a solid legal principle is through specific agreements that States make with each other to regulate the use of a particular shared water resource. Many such agreements emphasise the importance of the protection and conservation of the shared watercourse, but these texts are not always very specific about the beneficiaries of such protection. Is it the watercourse itself, the present generation, or is protection and preservation done for the sake of the future generations? This is not always clear. For example, in the Convention on Cooperation for the Protection and Sustainable Use of the Danube River, the States proclaim to “striv[e] at a lasting improvement and protection of the Danube River”.31 It is their principal objective to “strive at achieving the goals of a sustainable and equitable water management, including the conservation, improvement and the rational use of surface waters and ground water,” and to “ensure the sustainable use of water resources for municipal, industrial and agricultural purposes as well as the conservation and restauration of ecosystems.”32 But to whom do they owe these obligations? It is unclear. Being an international agreement, it is of course true that formally the States make their pledges to each other; but the other States are not the immediate beneficiaries of these pledges.33 The immediate beneficiaries are the future generations, or the watercourse itself. But neither 30  U NECE Convention, Article 2(5)(c). See Otto Spijkers, ‘The Sustainable Development Goals as Catalyst for the Sustainable Management of Water Resources,’ in Journal of Water Law, special issue, 2015. 31  Preamble of the Convention on Co-operation for the Protection and Sustainable Use of the River Danube, text available at the official website of the International Commission for the Protection of the Danube River: http://www.icpdr.org/. 32  See Article 2, Convention on Co-operation for the Protection and Sustainable Use of the River Danube. 33  Cf. with human rights treaties, which contain pledges between states, but the beneficiary is the individual residing within the jurisdiction of those States.

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is formally a participant in the legal framework regulating the watercourse. The future generations and/or the watercourse itself have no rights to claim or obligations to fulfil. Formally, they take no part in the process. When reading the Meuse Treaty, especially the Dutch language version thereof, one gets the impression that the conservation of the river is done out of respect for the river itself. In the French version of the Preamble, the parties express a desire to “ensure the maintenance and improvement of the quality of the water and the aquatic ecosystems of the [Meuse], taking into account the value of its waters, shores, riparian zones and coastal waters [emphasis added].”34 But according to the Dutch version – which is equally authentic – the States must protect the Meuse “in order to do justice to the valuable character of its waters, shores, riparian zones and coastal waters [emphasis added].”35 This sounds like an obligation owed to the river. At the same time, it is clear that the river is not a participant in the Meuse Treaty’s legal framework. It has no legal representation. Some more recent agreements are more explicit about the beneficiaries. In the Preamble of the Guarani Aquifer Agreement, concluded between Argentina, Brazil, Paraguay, and Uruguay, the States acknowledge they are “conscious of the responsibility to promote the sustainable development [of the Guarani Aquifer System] for the benefit of present and future generations [emphasis added].”36 In February 2011, Kazakhstan and China signed an Agreement on water quality protection of transboundary waters, with the following paragraph included in the Preamble: [Kazakhstan and China are] conscious of their responsibility to present and future generations for the preservation of the aquatic environment, the protection of transboundary rivers from pollution and protection of water quality of transboundary rivers [emphasis added].37 34  Accord international sur la Meuse, concluded in 2006, available at http://www.meusemaas.be/. 35  Internationale Maasverdrag, concluded in 2006, also available at http://www.meusemaas.be/. 36  Guarani Aquifer Agreement, concluded in August 2010, available at http://faolex.fao.org/ docs/pdf/mul-143888English.pdf. Admittedly, the phrase quoted is in the Preamble. Most of the examples referred to below were found at the Faolex Legal Database of Water Law Treaties (http://faolex.fao.org). The agreement has not (yet) entered into force. 37  Preamble of the Agreement between the Government of the Republic of Kazakhstan and the People’s Republic of China on water quality protection of transboundary waters, available at http://faolex.fao.org/docs/texts/bi-110874.doc (only in Chinese and Russian).

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This comes very close to the legal principle of intergenerational equity, as defined above, which requires States to preserve their natural resources – including freshwater resources – for the benefit of both present and future generations. Another interesting example is the Convention on the Sustainable Management of Lake Tanganyika. One of the general principles is that “[t]he natural resources of Lake Tanganyika shall be protected, conserved, managed, and used for sustainable development to meet the needs of present and future generations in an equitable manner.”38 This way, the Convention nicely links the principle of equitable use with the concept of sustainable development, with the result that it contains a wonderful reference to the principle of intergenerational equity. In conclusion, it can be said that, even in some of the most sustainable legal frameworks around (those discussed in this section), only the present generation takes part in the legal framework regulating the utilisation of a shared watercourse. It is true that the participants have accepted a responsibility towards future generations: the participants must use the watercourse in such a way as not to compromise the ability of future generations – future participants – to make use of the same resources. But the latter have no corresponding rights, or legal entitlements. Future generations do not in any way take part in the process. The future generations could be represented by a guardian, ombudsperson, or any kind of entity representing the interests of the future generations. However, it is a policy choice of the present generation to exclude this option from the Conventions described above.39 5

Future Generations in Domestic Water Law

References to the interests of future generations in the utilisation of freshwater resources can also be found in the domestic law of various States. In this section, a selection is offered of more recent examples of such domestic See also Otto Spijkers, Xian Li and Liping Dai, ‘Sustainable development in China’s international and domestic water law,’ Journal of Water Law, 2015, especially section 2.1. 38  Convention on the Sustainable Management of Lake Tanganyika, Article 5(2), available at http://lta.iwlearn.org/documents/the-convention-on-the-sustainable-management-oflake-tanganyika-eng.pdf. The text was adopted 12 June 2003 by Burundi, the Democratic Republic of Congo, Tanzania and Zambia. The Convention entered into force in 2005. 39  For an overview of some such proposals, see Intergenerational solidarity and the needs of future generations, Report of the Secretary-General of the United Nations, pp. 14–18.

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legislation.40 The examples have been selected to show the great variety of States involved.41 The first provision of the recently adopted Austrian Federal Constitutional Act on Sustainability, states that: “[t]he Republic of Austria is committed to the principle of sustainability in using natural resources to ensure that future generations will also benefit from optimal quality of life.”42 The word “also” indicates the commitment to search for a balance in order to ensure an optimal quality of life for both present and future generations. One of the principal objectives of the recently adopted Water Law of the Central African Republic is to “[m]obilize and manage water resources, to ensure the conditions for sustainable development, through rational use, while preserving the interest of current and future generations.”43 Likewise, Article 36 of the Congolese law on the planning and development of the territory and its natural resources, proclaims that: “[t]he exploitation of natural resources must take into account the indispensable preservation of the environment, so as to meet the needs of present and future generations.”44 Similarly, the new Land Law of the Macao Special Administrative Region of the People’s Republic of China, adopted in 2013, refers to the principle of sustainability as requiring a “coordinated and balanced” development policy “[…] so as to ensure meeting the needs of the present generation whilst transmitting to the future generations a properly planned and ordered region.”45 The Code of the Environment in Burkina Faso also calls for sustainable production and consumption, defined as: “[m]echanisms of production and use of goods and services that meet basic needs, and contribute to improving 40  Not all examples apply to the utilisation of freshwater resources alone. Examples of domestic environmental law applicable inter alia to freshwater resources – but also to other natural resources – are also included. 41  For more examples, see e.g. Intergenerational solidarity and the needs of future generations, Report of the Secretary-General of the United Nations, pp. 10–11. 42  Federal Constitutional Act on sustainability, animal protection, comprehensive environmental protection, on water and food security as well as research, adopted 11 July 2013, available at http://www.ris.bka.gv.at/Dokumente/Erv/ERV_2013_1_111/ERV_2013_1_111 .html, para. 1. 43  Article 2, Water Law of the Central African Republic, adopted in April 2006, available in French at http://faolex.fao.org/docs/pdf/caf107433.pdf. 44  Law No. 43–2014 of 10 October 2014, on the Planning and Development of the Territory, available in French at http://faolex.fao.org/docs/pdf/con143310.pdf, Article 36. 45  Land Law of the Special Administrative Region of Macau, Law No. 10/2013, published in 2 September 2013, available in Chinese and Portuguese at http://images.io.gov.mo/ bo/i/2013/36/lei-10-2013.pdf, Article 2(1).

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the quality of life, while minimizing the use of natural resources, so as not to endanger needs of future generations.”46 The same code also makes explicit reference to the principle of sustainable development, according to which “the present generation should meet its needs without compromising the ability of future generations to meet their own needs”.47 And “natural resources which contribute to the satisfaction of human needs must be exploited to meet the needs of the present generation without compromising the ability of future generations to meet their own needs.”48 Finally, the Maltese Sustainable Development Act includes the following provision: “[t]here shall be a Guardian of Future Generations with the aim of safeguarding intergenerational and intragenerational sustainable development in Malta.”49 This Guardian has the mandate to, inter alia, “direct the focus of the competent authority to safeguard future generations.”50 This is similar to the Hungarian Parliamentary Commissioner for Future Generations, a position established in 2008 and replaced by a Deputy Commissioner for Fundamental Rights responsible for the protection of the interests of future generations in 2012.51 A handful of States have established similar institutions.52 Future generations do not play a role in the process of utilising the State’s freshwater resources. Instead, those presently participating in this process must refrain from endangering or compromising the interests of future generations in the same freshwater resources.

46  Environmental Code of Burkina Faso, Law No 006–2013, available in French at http:// www.assembleenationale.bf/IMG/pdf/loi_no006_portant_code_de_l_environnement .pdf, Article 4. 47  Ibid. Article 9. 48  Ibid. Article 18. 49  Maltese Sustainable Development Act (Chapter 521), Act X of 10 July 2012, available at http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=11917&l=1, Part IV, Article 8. 50  Idem, Article 8, 4, j. 51  See the Hungarian Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (Ombudsman), provision 27; and Hungarian Act CXI of 2011 on the Commissioner for Fundamental Rights, as amended by Act CCXXIII of 2013, available in English at http:// www.ajbh.hu/en/web/ajbh-en/act-cxi-of-2011, Chapter I, Section 3. 52  See Intergenerational solidarity and the needs of future generations, Report of the Secretary-General of the United Nations, pp. 11–13.

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Future Generations in Domestic Water Plans and Policies

Many national water resource plans and policies also increasingly refer to the need to balance the interests of present and future generations. It is interesting to examine how this balance is sought in various cases. An early example is the national water policy of Bangladesh, adopted in 1999. This policy begins with the following proclamation: [e]very public agency, every community, village and each individual has an important role to play in ensuring that the water and associated natural resources of Bangladesh are used judiciously so that the future generations can be assured of at least the same, if not better, availability and quality of those resources.53 Here the balance between the benefits and burdens of freshwater resources utilisation tilts in favour of the future generations, which is somewhat unusual. There are very few examples of such an approach. It is also difficult to beat the Bangladeshi formulation in terms of clarity and specificity. The National Water Sector Strategy and Investment Program of Yemen, adopted in 2004, clearly surpasses the Bangladeshi report in terms of the urgency with which the protection of the interests of future generations is described. The various working groups that prepared this strategy departed from a series of considerations, one of which was that “[e]xhausting and wasting or polluting water is considered a criminal act, contravening all religions and can almost be considered an act of terror against the rights of present and future generations.”54 Here, the act of unsustainable exploitation of freshwater resources is condemned in extremely strong terms, but this in itself does not mean the interests of future generations are preferred over those of the present. The Ghanaian National Water Policy of 2007 is a more cautiously formulated example. Its overall goal is to “[a]chieve the sustainable development, management and use of Ghana’s water resources, to improve health and livelihoods, 53  National Water Policy, published in 1999 by the Ministry of Water Resources of the Government of the People’s Republic of Bangladesh, and available at http://faolex.fao .org/docs/pdf/bgd146075.pdf, p. 4. 54  National Water Sector Strategy and Investment Program (NWSSIP) of Yemen, published in December 2004 by the Ministry of Water and Environment, available at http://www .yemenwater.org/wp-content/uploads/2013/05/NWSSIP_2004_English1.pdf, p. 3.

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reduce vulnerability, while assuring good governance for present and future generations.”55 If the reference to future generations refers back to only good governance, then this quote says little about the exact intergenerational balance of burdens and benefits. A Croatian regulation referred, in 2008, to the principle of sustainable development, according to which water should be managed in such a way as to “[m]eet the needs of the present generation without compromising the right and ability of future generations to realize their needs for themselves.”56 We clearly see the Croatian authorities took their inspiration from the Brundtland Report. The National Action Plan for Integrated Management of Water Resources of Cape Verde, adopted in November 2010, also advocated for sustainable development, interpreted as an “[e]conomic and social policy that respects the environment, is specifically focused on the prudent and rational utilization of natural resources and respect for safeguarding the interests of future generations.”57 In the same year, the Water Conservation Strategy of the United Arab Emirates was adopted. This strategy identified eight initiatives that needed to be implemented, of which the first was to [d]evelop legislation, standards and Federal mechanisms for integrated water resources management [in order to] preserve, protect and enhance water resources management in UAE, and to appropriately allocate and effectively use water resources for the benefit of current and future generations.58

55  National Water Policy, adopted in 2007 by the Ghanaian Ministry of Water Resources, Works and Housing, available at http://www.purc.com.gh/purc/sites/default/files/ WATERPOLICY.pdf, p. 19. 56  Croatian Regulation on the water management strategy, published 15 July 2008, available at http://faolex.fao.org/docs/texts/cro129713.doc. 57  National Action Plan for Integrated Water Resources Management of Cape Verde, annexed to resolution No. 66/2010 of 24 November 2010, available in Portuguese at http:// faolex.fao.org/docs/pdf/cvi119727.pdf, p. 33. 58  United Arab Emirates, Water Conservation Strategy, 2010, available at http://faolex.fao .org/docs/pdf/uae147095.pdf, p. 68.

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The Guatemalan National Plan of 2014 identified five axes, of which the fourth was “[t]he development of a natural resources plan for today and for the future [requiring, inter alia, the] sustainable management of lake and river systems.”59 There are many other examples of water plans and policies which make reference to future generations, such as the Panamanian National Water Resources Policy, adopted 23 April 2013,60 and the Sustainable and Integrated Water and Sanitation Policy 2012–2021 of Tuvalu.61 All of these water plans and policies seek to give meaning to the intergenerational equity principle in their own way by searching for an acceptable distribution of burdens and benefits between present and future generations. They all do it in their own way, influenced by local culture and drafting practices. One can be skeptical about the actual implementation of (some of) these laws and policies, but that is beyond the scope of this paper. Here we just look at the texts. 7 Conclusion This paper provides an overview of how the principle of intergenerational equity has been embedded in existing international and domestic water law and policies. All examples cited have attempted to find a way to share the burdens and benefits of freshwater resource management and utilisation among the present and future generations. The exact formulation of this balance differs from one State to another. According to some policies, the present generation has an obligation to ensure that future generations have at least as many resources and opportunities; according to others, the present generation must merely keep the interests of future generations in mind when utilising currently available freshwater resources.

59  See pp. 12–13, 59, and 239–295 of the Plan Nacional de Desarrollo K’atun: nuestra Guatemala 2032, published by Guatemala in 2014, available at http://faolex.fao.org/docs/ pdf/gua143736.pdf. 60  Panamanian National Water Resources Policy, adopted 23 April 2013, available at http:// faolex.fao.org/docs/pdf/pan123087.pdf. 61  Adopted by the Office of the Deputy Prime Minister and Ministry of Public Utilities in 2012, and available at http://faolex.fao.org/docs/pdf/tuv143758.pdf. Faolex is a legislative database with domestic laws and regulation relating to renewable natural resources. It has an excellent collection, which is easily searchable.

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Very few legal frameworks give a role to representatives of future generations as participants; it is more common for the present generation to simply accept an obligation for itself to take into account the interests of future generations, without giving the latter any means to ensure compliance with this commitment. If we take all these examples together, we find an interesting laboratory of intellectual experiments, most of them very recent, which can be used by others as a source of inspiration. The next step is to faithfully carry out those plans, and to respect commitments made.

Chapter 6

Intergenerational Justice: Promotion of Renewables and the Water Protection Objective Karolis Gudas and Simona Weber 1 Introduction Intergenerational justice should be among the core principles guiding the policies, governing the energy transition. The intergenerational dimension of the principle of sustainable development is especially important in the case of electricity production as the demand for energy is predicted to increase further.1 According to the European Environmental Agency, nine countries in Europe are already considered to be water-stressed, namely Cyprus, Bulgaria, Belgium, Spain, Malta, FYR Macedonia, Italy, the UK and Germany.2 Some parts of southeast Spain and some areas in Southern Europe are drying out.3 In the European Union, climate change mitigation has been one of the major drivers for the promotion of renewable energy sources (RES). While a transition to low-carbon energy requires renewables promotion, it may undermine the objectives pursued in the water sector. In particular, promotion of certain renewables may place significant constraints on water. Growing water constraints may threaten the feasibility of energy investments and adversely impact other sectors depending on energy and water, such as agriculture.4 Water-intensive energy production has now become a widely recognised challenge. The European Environmental Agency, International Energy Agency, 1  International Energy Agency and Organisation for Economic Co-operation and Development, World Energy Outlook, 2012, 502. 2  European Environment Agency, “Water Scarcity” http://www.eea.europa.eu/themes/water/ featured-articles/water-scarcity (last accessed 19.03.2018). 3  “Resource Shortages: Water Shortages Turning Spain into the New Africa” http://wotfigo .tumblr.com/post/64893707463/resource-shortages-water-shortages-turning-spain (last accessed 19.03.2018). 4  International Energy Agency and Organisation for Economic Co-operation and Development, World Energy Outlook, 2012, 49; Brahma Chellaney, Water, Peace, and War: Water, Peace, and War: Confronting the Global Water Crisis (New York: Rowman & Littlefield 2013), 101; van Vliet M.T.H., Vögele S., and Rübbelke D., “Water Constraints on European Power Supply under Climate Change: Impacts on Electricity Prices,” Environmental Research Letters 8 (2013)3 6.

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World Bank and United Nations5 identified a range of challenges related to the energy production and water supplies. The conclusions in one way or another are related to the fact that availability of water for energy production will become more constrained in future; and that states need to rely more on energy technologies that do not use much water, as well as to deploy more advanced and water-saving cooling systems.6 2

Water Protection Objective is Hardly Reflected in Energy Policies Promoting Renewable Energies

The Renewable Energy Directive of 2009 (RES Directive) stipulates forms of renewable energies that can be supported in the EU.7 These forms include wind, solar, aerothermal, geothermal, hydrothermal and ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas and biogases.8 The use of any of these forms of renewable energy may be promoted by any instrument, scheme or mechanism at the discretion of the Member State, for instance, by increasing the price at which it can be sold, or increasing the volume of such energy purchased.9 There are no EU-wide rules governing implementation of RES support schemes,10 with the exception of the recent ‘Guidelines on state aid for environmental protection and energy 2014–2020’ (the Guidelines) of the European Commission and Commission’s working documents. Therefore, on one hand, Member States of the EU may choose to promote water-intensive electricity generating technologies, such as geothermal or 5  See International Energy Agency and Organisation for Economic Co-operation and Development, World Energy Outlook, 2012, 514–528; Werner and European Environment Agency, European Waters, 27, 33–34; European Environment Agency, Water Resources across Europe, 25; European Environment Agency, Climate Change, Impacts and Vulnerability in Europe 2012, 201; Wouter Vanneuville; Werner, Beate; Kjeldsen, Thomas; Miller, James; Kossida, Maggie; Tekidou, Anastasia; Kakava, Anastasia; Crouzet, Philippe. 2012 Water resources in Europe in the context of vulnerability: EEA 2012 state of water assessment.Copenhagen, European Environment Agency, 54. 6   International Energy Agency and Organisation for Economic Co-operation and Development, World Energy Outlook, 2012, 514–528; World Bank, “Thirsty Energy: Securing Energy in a Water-Constrained World,” 17–22; UN Water, The United Nations World Water Development Report 2014–Facing the Challenges, 103 and 105. 7  R ES Directive Recital 1. On November 13, 2018, the EU parliament adopted new directives on the promotion of renewables and energy governance. 8  Art. 2a of the RES Directive. 9  Art. 2k of the RES Directive. 10  Case C-573/12 Ålands Vindkraft AB v Energimyndigheten, 62 (Court of Justice of the European Union 2014).

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concentrated solar power. On the other, Member States may promote such water-neutral technologies as solar photovoltaic or wind energy, which convert sun and wind directly into electricity.11 Notably, in the 2012 final report of the ‘Impact Assessment of the Blueprint to Safeguard Europe’s Waters’ addressed to the European Commission, it was concluded that there are environmentally harmful subsidies in the energy sector which stimulate activities with negative effects on water bodies. The authors proposed among other measures to the European Commission to develop criteria for the sustainable production of bio-energy crops with specific reference to water protection.12 It appears that the Guidelines pay very little attention to the issue of water protection. The Guidelines exclude only the hydropower, as the technology, that may have a negative impact on the water; though there are other technologies which might have adverse implications on the water, including: 1. concentrated solar power (CSP), 2. biofuels, 3. geothermal power production, and 4. carbon capture and storage technology (CCS):13 CSP requires water from 2,800–3,500 litres/MWh depending on the technology used.14 This technology can use five times more water than a gas-fired power plant and twice as much as a nuclear power plant.15 Biofuels produced from corn or soy can use 9,000–270,000 litres/GJ depending on irrigation needs. Therefore, grain and oilseed crops grown for biofuels can be much more water-intensive than petroleum, which is estimated to use 3–9,000 litres/GJ for mining and processing of raw material.16 The water withdrawal and consumption for geothermal power production range widely and can go up to more than 10,000 litres/MWh depending on the production technique and the well depth.17 The water consumption from 11   International Energy Agency and Organisation for Economic Co-operation and Development, World Energy Outlook, 2012, 509–510. 12  Farmer et al., “Assessment of Policy Options for the Blueprint,” 43 and 442. 13  See International Energy Agency and Organisation for Economic Co-operation and Development, World Energy Outlook, 2012, 514–517. 14   Waughray, Water Security the Water-Food-Energy-Climate Nexus, 509–510; World Economic Forum, Thirsty Energy: Water and Energy in The 21st Century, 21; U.S. Department on Energy, “Energy Demands on Water Resources: Report to the Congress on the Interdependency of Energy and Water,” 65 Table B–1. 15  U N Water, The United Nations World Water Development Report 2014–Water and Energy, 40. 16   Dominic Waughray, Water Security the Water-Food-Energy-Climate Nexus, World Economic Forum 2011, 47. 17   International Energy Agency and Organisation for Economic Co-operation and Development, World Energy Outlook, 2012, 510; UN Water, The United Nations World Water Development Report 2014–Water and Energy, 41; United Nation – Economic

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hydropower is caused by evaporation loss, which is on average 17,000 litres per MWh, depending significantly on the local climate and dimension of the reservoir.18 Notably, the RES Directive establishes sustainability criteria for biofuels and bio liquids avoiding excessive water consumption. The Impact Assessment carried out by the Commission on the support for electricity from renewable energy sources in preparation for the promulgation of the RES Directive only refers to the negative impact of hydropower on ecosystems and water quality, and does not assess the water-energy-nexus as whole.19 3

Operationalising the Principle of Sustainable Development

The EU has developed the concept of sustainable development in both primary and secondary law20 with an emphasis that it is an overarching objective21 of the EU, governing all the Union’s policies and activities.22 The foundations of the establishment of an internal market based on sustainable development are set under Article 3.3 of the Treaty on the European Union (TEU) with the objective demanding to incorporate balanced economic growth and price stability, and a high level of protection of the quality of the environment. There is no definition of sustainable development in European Law, which would outline its concrete content. The concept of sustainable development is in its reception in European Law based on a ‘three-pillar model’, which seeks to reconcile environmental, social and economic objectives.23 As far as environCommission for Europe, “accessed 27 March 2015.” 18  World Bank, “Thirsty Energy: Securing Energy in a Water-Constrained World,” 21–22. 19  European Commission, Staff Working Document SEC (2005) 1571, 27. 20  For instance, Regulation No/2493/2000 on measures to promote the full integration of the environmental dimension in the development process of developing countries defines sustainable development as the improvement of the standard of living and welfare of the relevant populations within the limits of the capacity of the ecosystems by maintaining natural assets and their biological diversity for the benefit of present and future generations. EU Sustainable Development Strategy (2001) defines sustainable development as “a fundamental objective under the Treaties”, which “requires dealing with economic, social and environmental policies in a mutually reinforcing way”. 21  See for instance: EU Sustainable Development Strategy (2006). 22  The Sustainable Development Strategy 2006 was developed based on the Sustainable Development Strategy 2001. 23  Meßerschmidt, Europäisches Umweltrecht ein Studienbuch, (München, Beck: 2011) para. 3 Rz. 39 und 45–47; Monien, “Nachhaltige Entwicklung als Umweltprinzip,” 157;

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mental objectives are concerned, Article 11 TFEU requires integrating them into European Community policies and activities. Notably, in the Helsinki Bus and Wienstrom cases the Court of Justice of the EU ruled in favour of promotion of renewable electricity production, reasoning that EU law requires integrating environmental protection requirements in its policies and activities. Therefore, there is policy space to argue that environmental aspects of electricity may also imply the duty on EU Member States to take into account the relevant factors related to water use in different electricity generating technologies if adverse implications on water are proven. Such reasoning would be in line with studies arguing that sustainable development implies a duty for decision-makers to integrate, to seek efficiency regarding all relevant factors and to weight in the sense of normative standards of sustainable development.24 More particularly, in the context of production and promotion of energy from renewable sources the ecological aspect of electricity would require assessing how environmental and natural resources, including water, are affected by the measure. Therefore, if Member States jeopardise the achievement of the objectives set out in the Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy” (Water Framework Directive) or beyond its regulation, to the extent of affecting water availability in future, sustainable development could serve as an interpretative norm to challenge these measures. 4 Conclusion The low-carbon renewable electricity policy scenario could be a much less water-intensive one. However, this is not the case under the existing regulatory framework in the EU. In particular, the production of biopower, geothermal, vgl. auch Rates der Sachverständigen für Umweltfragen, Umweltgutachten 2002, n. 4 und 30; Johanna Monien, “Nachhaltige Entwicklung als Umweltprinzip.” In Nachhaltigkeit, Energiewende, Klimawandel, Welternährung: politische und rechtliche Herausforderungen des 21. Jahrhunderts, edited by Ines Härtel, 1. Aufl. Forum Umwelt-, Agrar- und Klimaschutzrecht 1. Baden-Baden: Nomos-Verl.-Ges, 2014 147 ff.; Kahl, W.: Einleitung: Nachhaltigkeit als Verbundbegriff, in ders. (Hrsg.): Nachhaltigkeit als Verbundbegriff, (Tübingen: 2008) 25–30. 24  Katja Gehne, Nachhaltige Entwicklung als Rechtsprinzip: Normativer Aussagegehalt, rechtstheoretische Einordnung, Funktionen im Recht. Tübingen: Mohr Siebeck, 2011, 217– 220; Elisabeth Bürgi Bonanomi, Sustainable Development in International Law Making: International Food Governance and Trade in Agriculture, (Edward Elgar: 2015)168 ff.; cf. Kahl, “Einleitung: Nachhaltigkeit Als Verbundbegriff,” 13–15.

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concentrating solar power and hydropower can use a lot of water and have adverse effects on the aquatic ecosystem. Member States subsidise these forms of energy regardless of the potential impact on waters. In our view, different policy objectives of promotion of renewable energy and protection of water may be integrated within the concept of sustainable development.

Chapter 7

Intergenerational Climate Justice Anna Aseeva 1 Introduction In December 2015, the United Nations Framework Convention on Climate Change (UNFCCC) officials, most of the delegations of advanced economies, and many climate activists were rejoicing the conclusion of the Paris Agreement at the end of the COP 21, and the related breakthroughs that many among them qualified as ‘commitments’ and a ‘binding’ agreement.1 In November 2016, breaking news on the result of the US presidential election brought a coup de froid to Marrakesh, where the COP 22 and the very first meeting of the parties to the Paris Agreement were taking place.2 On 27 March 2017, the US President Donald Trump, as a part of the bid to make America’s energy potential great again, signed an executive order obliterating the climate measures taken by his predecessor Barack Obama, thus undermining country’s already modest commitments to the Paris Agreement.3 Curiously, at the moment of writing this chapter, when asked about his intention to withdraw from the Paris Agreement, Trump seems to be still considering.4 At this point, questions of vocabulary and particular narratives remain important. Firstly, the above-mentioned ‘commitments’, or ‘undertakings’ should be qualified as ‘promises’: that is, promises of contributions. The 1  The twenty-first session of the Conference of the Parties (COP) and the eleventh session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP) took place from 30 November to 11 December 2015, in Paris, France, accessed March 28, 2017, http://unfccc.int/meetings/paris_nov_2015/meeting/8926.php. This paper does not take into account the results of COP 24, held in Katowice, Poland from December 2 to December 15, 2018. 2  The twenty-second session of the Conference of the Parties (COP 22), the twelfth session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP 12), and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1) were held in Bab Ighli, Marrakech, Morocco from 7–18 November 2016, accessed March 28, 2017, http://unfccc.int/meetings/marrakech_nov_ 2016/meeting/9567.php. 3  The Guardian, “Trump moves to dismantle Obama’s climate legacy with executive order,” March 28, 2017, accessed March 28, 2017, www.theguardian.com/us-news/2017/mar/28/ trump-clean-power-plan-executive-order-coal-industry. 4  Ibid. © koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_009

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Independent Nationally Determined Contributions (INDCs), put forward by the IPCCC secretariat, were adopted following the COP 21.5 Those are voluntary contribution pledges from the Paris Agreement countries, outlining their future plans to cut emissions and adapt to climate impacts. Secondly, Obama’s widely avowed ‘climate legacy’ concerning the Paris deal (i.e. his climate commitments) has, since its inception, seemed to promise a very limited potential for global climate improvement, as well as an actual reach. In fact, in its NDC plan, the Obama administration promised to reduce US emissions by 26–28 % below 2005 levels by 2025.6 During the COP 22, the US presented a mid-century strategy for deep decarbonization, including the Clean Power Plan and outlining pathways to reduce net greenhouse gases (GHG) emissions by 2050 to one fifth of 2005 levels.7 A question that immediately arises is why the US’ promises to cut emissions were fixed to the year 2005 and not 1990 as those of the European Union (EU) and most of industrial­ ized countries were. The US’s invocation of the Kyoto Protocol might be only a ceremonial and rather shallow rationale. After all, given the Obama administration’s declared climate enthusiasm, the fact that the US is not part to the Kyoto Protocol does not theoretically preclude the US from substantiating its more recent active climate pledges by linking its reduction targets to 1990, that is, to the year which is a baseline for most of other important global GHG emitters. Carbon dioxide (CO2) accounts for more than 80% of total US GHG emissions, the latter being almost entirely attributable to energy production and use.8 Consequently, an actual reason for the choice of the particular year 2005 might simply lie in its practical usefulness for concerned US domestic energy producers and operators, hence major US polluters. To better illustrate this hypothesis, it is revealing to analyze the pertinent data from the US Energy information administration’s (EIA) latest annual energy outlook, produced 5  I NDCs that were created by the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) as a means to get voluntary contribution plans from countries for inclusion in a mandatory agreement at COPs 19 and 20, now make part of the Paris Agreement, accessed March 28, 2017, http://unfccc.int/focus/indc_portal/items/8766.php. 6  European Parliament, “Outcomes of COP 22 climate change conference,” accessed March 28, 2017, http://www.europarl.europa.eu/RegData/etudes/ATAG/2016/593547/EPRS_ATA(2016) 593547_EN.pdf. 7  The White House, “Mid-century strategy for deep decarbonisation,” accessed March 28, 2017, https://www.whitehouse.gov/sites/default/files/docs/mid_century_strategy_report-final .pdf. 8  U S Global Change Research Program, “Third National Climate Assessment Highlights: Responses,” GLOBAL CHANGE (2014), accessed March 28, 2017, http://nca2014.global change.gov/highlights/reportfindings/responses.

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under the outgoing Obama administration.9 The tables demonstrating past, current and projected energy-related 1990–2040 CO2 emissions from various fossil fuels show that the year 2005 was on average the peak year of the US emissions (to wit, the peak year for the emissions from petroleum and one of the two peak years for those from coal).10 Therefore, by tying the national reduction targets to the year of the peak of national CO2 emissions, Obama merely granted the US with an additional margin in the global climate deal. And, by promising to dismantle Obama’s Clean Power Plant, Trump made real the possibility of maintaining the 2040 emissions at the same levels as those of 2016 and roughly similar to those of 1990.11 The above demonstrates a considerable gap between the UNFCCC COPs objectives, and in particular those of the Paris Agreement, and the US future emissions projections and current policies – something that is seen as a major threat to the whole global climate deal. After Trump’s adoption of the aforementioned executive order in March 2017, many stakeholders expressed their fears that the US will in effect exit the Paris Agreement, thus putting both the relevant American promises and global climate policies on a precarious perch.12 Such a configuration also looks generally imbalanced and simply unfair. I identify, however, a more pressing question: what if the US remains a party to the Paris Agreement? In that eventuality, the US could lawfully (from its domestic perspective) enact policy impairing any meaningful cuts of national GHG emissions. This is because the Paris Agreement text and its pragmatic reading – i.e. an understanding that the agreement is not legally binding and the commitments are voluntary promises – allow that possibility. No sanctions are foreseen for a country that does not fulfil the promises made in Paris. And possibly no other State will seek to require the US to withdraw from the Paris Agreement on the above grounds. Here, the intricacy might lie in the following epistemological understandings of ‘climate change’ that seem to underpin and justify the current global climate deal. These include the nature of the commitments under the Paris Agreement, its questionable bindingness, and, most importantly, the highly contingent nature of the universal and futureorientated form of global jurisdiction that sanctions the UNFCCC regime, 9   Energy information administration (EIA), “Annual Energy Outlook 2017,” accessed March 28, 2017, https://www.eia.gov/outlooks/aeo/. 10  E IA, “Projected carbon dioxide emissions are sensitive to factors driving fossil fuel use”, accessed March 28, 2017, https://www.eia.gov/todayinenergy/detail.php?id=30172. 11  Follow the ‘No Clean Power Plan’ pink variable in the aforementioned tables, EIA, id. 12  The Guardian, “EU leads attacks on Trump’s rollback of Obama climate policy,” 28 March 2017, accessed March 28, 2017, https://www.theguardian.com/environment/2017/mar/28/ climate-change-eu-leader-trump-executive-order.

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thereby empowering only a particular set of regulatory actors and endorsing particular modes of regulation, as well as particular means regarding their marge de manoeuvre. The above example of recent global climate goings-on demonstrates that any attempts to resolve the issue of climate change through the constrained channels of an international environmental treaty would eventually fail. This is because such efforts are inevitably limited by contemporary models of State sovereignty and market economy, and related visions of law-making, development, growth and wealth distribution. And hence the tools of international environmental law are no more apt to ‘solve’ the climate problems alone than any other method that existing environmentalism and sustainability approaches are beset with, as they represent linear methods that ignore the highly complex realities that shape the issue of climate change.13 This chapter recounts the history of the international climate regime from the present standpoint in order to highlight the extremely contingent nature of the current configuration. In particular, it highlights the times when there was potential for alternative thinking in order to disrupt a narrative in which the present appears as the inevitable outcome of the global climate regime process, which is reflective of market and economic prescriptions. The chapter traces how the regime initially operates on a social conception of inter-State community and a universal ‘common’ interest, and thereby grounds an international mitigation jurisdiction through a specific understanding of the problem of climate change as a matter of global future common concern. The example of the climate regime best illustrates a broader configuration of contemporary environmentalism and sustainable development narratives, and I suggest that today there is little place for intergenerational climate justice – not only between the present and future generations, but also with respect to the past generations of the 20th century. 2

The Evolution of Environmentalism and Sustainability Discourse

Although transnational attempts to sustainably regulate the climate and overall ecology of our planet increased alongside contemporary environmental problems during the post-war industrial globalization era, i.e. the ‘great acceleration’–for many, environmentalism was born in the early 1960’s in Rachel Carson’s Silent Spring. The latter is a series of articles published in 1962 in 13  Cinnamon Carlarne, “Delinking International Environmental Law & Climate Change,” Mich. J. Envtl. & Admin. L. 4(1) (2014): 4.

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the New Yorker that then became an international bestseller highlighting in an unprecedented manner the political nature of environmental problems.14 While Carson was a sort of a ‘social prophet’ for environmentalism, the first true ‘social entrepreneurs’ of global environmentalism were Maurice Strong, a businessman and public servant from Canada, and George Kennan, an American diplomat and conservative realist. Strong left his public position to serve as Secretary-General of the famous 1972 Conference on the Human Environment in Stockholm.15 Since the year 1970, Strong began a worldwide tour to personally persuade every reluctant country’s decision-makers to send a delegation to the Stockholm Conference,16 which gave birth to the Stockholm Declaration – one of the first soft law instruments of the existing international environmental law.17 Kennan first started moonlighting as environmentalist with the publication of an article, “To prevent a World Wasteland”, in Foreign Affairs in 1970,18 and then proposed the creation of an International Environmental Agency. Both men, the former by promoting the Stockholm Conference, and the latter by advocating for a new intergovernmental environmental institution contributed to the creation of the United Nations Environment Programme (UNEP) in 1972.19 Both social entrepreneurs have contributed to not only shaping a new global state of intergenerational morals – environmentalism, but, through the creation of the UNEP, also the creation of some binding legal norms of international environmental law.20 14  The story is about the compelled use of DDT, a chemical used to kill mosquitos, which is very harmful to humans and animals. Corporations producing and using this chemical were misinforming consumers and a wider public about its harmful effects, and politicians had helped the industry and companies to conceal the externalities.  Silent Spring initially appeared as serialised in three parts in the June 16, June 23, and June 30, 1962 issues of The New Yorker magazine. Rachel Carson, Silent Spring, (Mariner Books, 2002 [1st. Pub. Houghton Mifflin, 1962]). 15  See Thomas Hale, David Held and Kevin Young, Gridlock. Why global cooperation fails when we need it most, (Cambridge: Polity Press, 2013), 204–206. 16  Ibid., 205. 17  See the UNEP Ozone Layer Depletion-related Conference, Washington D.C., 1977; UNEP Ozone Layer Action Plan of 1977; Vienna Convention for the Protection of the Ozone Layer, 1987; United Nations Framework Convention on Climate Change, May 9, 1982; Rio Declaration of Principles on Environment and Development, 1995; Kyoto Protocol to the United Nations Framework Convention on 1998, op.cit. 18  George Kennan, “To prevent a World Wasteland,” Foreign Affairs (April 1970), accessed April 19, 2017, https://www.foreignaffairs.com/articles/1970-04-01/prevent-world-waste land. 19  Hale et al., Gridlock, 205–206, 212–215 and 272. 20  For example, in February 2009, the Governing Council of UNEP adopted Decision 25/5 on the development of a global legally binding instrument on mercury. See UNEP (DTIE)/Hg/INC.5/7, Report of the intergovernmental negotiating committee to prepare

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The Silent Spring, and Kennan’s and Strong’s activities gave impetus to the recognition of the conservation of natural resources as a global priority in the 1970s, as the United Nations (UN) first articulated the dire need to incorporate the protection of Earth with poverty alleviation and development efforts. Namely, at the 1972 Conference on the Human Environment in Stockholm, two of the twenty-six principles of the Stockholm Declaration addressed the use of natural resources, particularly in terms of not exhausting and sharing of nonrenewable natural resources. More than a decade later, in 1987, the World Commission on Environment and Development published the Brundtland Report, Our Common Future, which embodied the spirit of the Stockholm Declaration, yet with greater focus on multilateralism for reaching sustainable development, defined for the first time as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”21 With the conceptualization of sustainability now on the world stage, the groundwork for the first UN Earth Summit had been fortified. Working with a myriad of international stakeholders, the Brundtland Report assimilated and synthesized information into a mandate that was the first of its kind to explicitly recognize the interconnectivity of humans, non-renewable natural resources, and the environment.22 One of the latest meanings of sustainable (claimed to be ‘universally accepted’23) is “to create and maintain conditions, under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic and environmental requirements of present and future generations (my emphasis)”.24 Finally, and importantly, the post-2015 Sustainable Development Goals (SDGs) call in one of their core objectives to “[i]mprove progressively, through 2030, global resource efficiency in consumption and production and endeavour to decouple economic growth from environmental degradation (my emphasis)”.25 a global legally binding instrument on mercury on the work of its fifth session, accessed March 19, 2017, http://www.unep.org/chemicalsandwaste/Mercury/Negotiations/INC5/ INC5Report/tabid/3496/Default.aspx. 21  World Commission on the Environment and Development (WCED), Our Common Future [‘Brundtland Report‘], (Oxford/New York: Oxford University Press, 1987), 53. 22  Brundtland Report, Mandate 2. 23  James K. Summers and Lisa M. Smith, “The Role of Social and Intergenerational Equity in Making Changes in Human Well-Being Sustainable,” AMBIO Journal of the Human Environment 43(6) (2014): 718–728, 720. 24  Ibid. 25  U N Sustainable Development Goals, Goal No.8 Decent work and economic growth: “Promote sustained, inclusive and sustainable economic growth, full and productive

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The discursive retrospect of the idioms of sustainable development discloses a particular path. Namely, it starts from a vision that ecological concern posed inevitable externally imposed biophysical limits, or ‘planetary boundaries’,26 onto economic growth dependent on present technologies and social organization (1987); then continues with a heading of universal growth through productive harmony (2013); and, finally and most importantly, arrives to the global resource efficiency in consumption and production, and the decoupling economic ‘goods’ from environmental ‘bads’ (by 2030). The most striking moments in the latter vision are the fact that the matters of environmental degradation are placed in the global normative basket of economic growth, as well as an assumption that environmental degradation and economic growth can and should be de-linked through somewhat more ‘ecoefficient’ growth patterns. Here we are, arrived to a kind of ‘market’ sustainability and environmentalism. Were there warning signs to choose an alternative path for the environmental, sustainability and particular climate discourse, politics, practice, and justice? From the history of environmentalism and sustainability, and using the specific example of the global climate crisis as a lesson, the story begins. There is ample evidence and scientific consensus that anthropogenic GHG emissions are affecting the climate in ways that have serious consequences on planetary habitability. This chapter recounts the history of the global climate regime by tracing a series of developments in the structure of that regime (3). The chapter continues by recognizing the seriousness of the climate crisis while simultaneously narrating how the issue of climate change has been understood and problematized in a specific way in the current global climate jurisdiction. Namely, it unpacks the market-based solutions to the climate crisis: ones that provide a basis upon which market and economic growth discourse converge and come up as a solution (4). Lastly, it discusses other, perhaps more political and pluralistic ways to think of the climate crisis, and offers final conclusions (5).

employment and decent work for all”, see at point 8.4, accessed September 27, 2016, https://sustainabledevelopment.un.org/topics. 26  Brundtland Report, 44–46, 205. For biophysical thresholds, ‘planetary boundaries’, and other related limits, see in particular Donella H. Meadows, Dennis L. Meadows, Jørgen Randers, and William W. Behrens III, The limits to growth (The Club of Rome: Universe Books, 1972); and Jørgen Randers, 2052, Report for the Club of Rome, (Chelsea Green Publishing, 2012).

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Growth as a Normative Framework of the Contemporary Concept of Sustainability: the Example of the Climate Change Regime

Currently, the correlation between economic development and intensity of energy use is maintained by the unsustainable use of Earth’s exhaustible resources. This particular paradigm, traditionally advanced by the industrialized world, underlines dependence on the exploitation of Earth to grow the economy. This vision and related policies and practices have equally brought the humanity to this perplexing place in which the daily activities of a handful of the most industrialized actors, private and public alike, threaten not only the whole human species, but equally all other forms of life on our planet. Such situation has the far-reaching implications, both at inter- and intragenerational levels, and does concern humans and non-human life forms alike. This section looks at the particular problem of degradation of our climate and the global legal framework that was created to prevent dangerous anthropogenic interference with the climate (1); as well as at the discursive framing of this problem that sees the emergence and empowering of global climate governance through the market as a unique possible option to save the planet (2). The United Nations Framework Convention on Climate Change Regime The UNFCCC, in its Article 2, sets an ultimate objective regarding the environment: to prevent dangerous anthropogenic interference with the climate system. Simply put, the UNFCCC is an international treaty aiming at cooperatively considering what States parties to the treaty should do to limit average global temperature increases and the resulting climate change.27 The treaty itself sets no mandatory limits on GHG emissions for its members and contains no enforcement mechanisms. Instead, it provides for updates – or protocols – that set mandatory emissions limits. The most famous and relevant is the Kyoto Protocol.28 Article 2.2 of the Kyoto Protocol sets quantitative targets and legally-binding commitments, and requires parties, listed at its Annex I,29 to limit or reduce 3.1

27  See UNFCCC website, accessed March 28, 2017, http://unfccc.int/essential_background/ items/6031.php. 28  See Kyoto Protocol‘s website, accessed March 28, 2017, http://unfccc.int/kyoto_protocol/ items/2830.php. 29  The industrialised countries that were members of the OECD as of 1992, plus countries with economies in transition (the EIT Parties), including the Russian Federation, the Baltic States, and several Central and Eastern European States. The Annex 1 countries

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their GHG emissions. This also implies that non-Annex I States do not have to respect quantitative targets and related legally-binding commitments.30 According to the Kyoto Protocol, concerned members shall meet their targets primarily through national measures.31 Under the UNFCCC, potential national measures include three market-based mechanisms: (i) emissions trading, or cap-and-trade; (ii) the Clean Development Mechanism (CDM); and (iii) Joint Implementation (JI). I will mostly concentrate here on emissions trading. Emissions trading systems (ETSs) include a number of economic sectors. Such systems put on each covered sector an established limit (‘cap’) of overall GHG emissions that the sector is allowed to generate. Accordingly, the primary aim of an ETS is to reduce emissions of certain GHGs.32 Cap-and-trade approach is said to be a cost-effective one.33 That is, within a cap-and-trade, all entities of covered sectors receive individual emissions quotas, or allowances, which they can trade with one another as needed; the limit on the total number of allowances available ensures that they have a value.34 Hence, emissions trading is just another kind of market where, instead of bonds or commodities, emission allowances are traded.35 The cost of compliance could be seen as the rationale for ETS-type regulations. Namely, whereas under the ‘command-andcontrol’ approach (technology standards or performance requirements) a firm (with a few exceptions such as the US) took on binding reduction targets under the Kyoto Protocol. See the UNFCCC website. 30  This distinction originates in the principle of “common but differentiated responsibilities (CBDR) and respective capabilities”. Namely, non-Annex I countries are mostly developing countries. Certain groups of developing countries are recognised by the Convention as being especially vulnerable to the adverse impacts of climate change or to the potential economic impacts of climate change response measures. See the UNFCCC website. 31  See detailed rules for the implementation of the Kyoto Protocol, “Marrakesh Accords”, accessed March 28, 2017, http://unfccc.int/kyoto_protocol/items/2830.php. See also WTOUNEP report Trade and Climate Change, (Geneva: WTO Secretariat, 2009), “Executive Summary”, xv. 32  Those are mostly the carbon dioxide (CO2) emissions. More precisely, there is a so-called Kyoto basket of greenhouse gases, which includes carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6); in order to allow the global warming potential of each of the gases to be compared, the information is often converted into “CO2-equivalents.” European Commission, Climate Change Statistics (2011), accessed March 28, 2017, http://epp.euro stat.ec.europa.eu/statistics_explained/index.php/Climate_change_statistics. 33  See e.g. IATA, “What You Need to Know About Emissions Trading” (2007) accessed March 28, 2017: http://web.archive.org/web/20070303092647/http://www.iata.org/NR/ rdonlyres/95D34D98-7906-4A23-8884-1FA561709037/53257/EmissionsTrading.pdf. 34  See the European Commission, Climate Action: Policies, “Emissions Trading System”, accessed March 28, 2017, http://ec.europa.eu/clima/policies/ets/index_en.htm. 35  I ATA, “Emissions Trading”.

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has to comply with strict rules, under ETS the polluting entities can choose their levels of emissions based on the cost of abatement and the price of emissions quotas.36 The first key development of emissions trading was theoretical,37 i.e. it is practice that caught up with theory, and not vice versa. In 1968, a Canadian economist John Harkness Dales has suggested, in his Pollution, property & prices, to introduce transferable pollution rights to tackle pollution externalities.38 The first practical step towards emissions trading was equally done in North America. In other words, the US, although well known for its typical pessimism about the whole system of mutually recognized allowances, and especially its retreat from Kyoto negotiations, is nevertheless the original architect of emissions trading.39 Notably, the US Clean Air Act amendments of 1970 and the Federal Water Pollution Control Act amendments of 1972 have set new national standards40 that were technology forcing because they were much higher, and thus unattainable with existing heavily polluting technologies. In these articulations of the hegemony of that time, there emerged an 36  European Commission, “Emissions Trading System”; IATA, id.; W. David Montgomery, “Markets in licenses and efficient pollution control programs,” Journal of Economic Theory, 5 (1972): 395–418. 37  “Economists spend much of their time attempting to understand how markets work. In the case of tradable permit schemes, the reverse is true: these markets have been created from theoretical considerations. Their origins are usually traced back to a famous article by Ronald Coase (1960)–a sharp criticism of the “Pigouvian1 tradition” that gave birth to environmental taxes. This led J.H. Dales (1968) to suggest introducing transferable pollution rights to deal with pollution … Various economists further developed that concept or backed it by demonstrating that current command-and-control policies dealing with pollution or other environment or natural resources problems were needlessly costly and could be dealt with more cost-effectively with tradable permits.” Cédric Philibert and Julia Reinaud, OECD, “Emissions Trading: Taking Stock and Looking Forward Environment Directorate/International Energy Agency,” (Paris: OECD), 9. 38  “If it is feasible to establish a market to implement a policy, no policy-maker can afford to do without one. Unless I am very much mistaken, markets can be used to implement any anti-pollution policy that you or I can dream up (original emphasis).” John H. Dales, Pollution, Property & Prices: An Essay in Policy-making and Economics, (Northampton, MA: Edward Edgar Publishing, [1968] 2002), 100. 39  The US initially inspired environmental policies, starting in 1970 with Nixon’s environmental decade and following the creation of the Environmental Protection Agency (EPA) and other agencies, and regulations covering primarily first-generation pollutants in the air, surface water, groundwater, and solid waste disposal. Notably, the 1970 Clean Air Act set binding benchmarks for automobile emission standards in new cars, resulting in the development and adoption of catalytic converters and greatly reducing automobile pollution. Jack Lewis, “The birth of EPA,” EPA Journal, 11(9) (1985). 40  Id.

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ever-growing race to efficiency, and a vitalism driven by a ‘technology forcing’ policy drift: i.e. the creativity, innovation and the growth ‘with no limits’ that coincided with the peak of neo-liberalism.41 In the 1990s, the US first designed a programme using a ‘cap-and-trade’ method (instead of the traditional ‘command-and-control’ line) that was established as a result of the enactment of the 1990 Clean Air Act Amendments (1990 CAAA) and consisted of a two-phase, market-based measure for reducing sulphur dioxide (SO2) emissions from fossil-fuel burning power plants located in the American continental forty-eight states.42 During the Kyoto Protocol talks, the US successfully negotiated for an analogous scheme to be enacted within the UNFCCC framework, based on arguments that if the commandand-control was preferred, the cost of abatement would be ‘unbearable’ for developed countries.43 First, the EU (EC at that time), G77 and China were against the ETS option; but following the sudden withdrawal of the US from the negotiations, European delegates felt somewhat compelled to assume the leadership, and finally supported and even insisted on the ETS proposal.44 Thus, by passing through the OECD negotiations, the cap-and-trade ended up in the UN – namely, in 1997, emissions trading between States became part of

41  See e.g. Andrew Lang, World Trade Law after Neoliberalism, (Cambridge: Cambridge University Press, 2011), 4; Robert Howse, “Introduction”, in Research handbook on the WTO and technical barriers to trade, ed. Tracey Epps and Michael J.Trebilcock (Edward Edgar, 2013), 2. 42  See Denny A. Ellerman, Richard Schmalensee, Elizabeth M. Bailey, Paul L. Joskow and Juan-Pablo Montero, Markets for Clean Air: The U.S. Acid Rain Program, (Cambridge: Cambridge University Press, 2006); Denny A. Ellerman, “The U.S. SO2 Cap-and-Trade Programme,” in OECD, Tradeable Permits: Policy Evaluation, Design and Reform, (Paris: Éditions OECD, 2004); Dallas Burtraw, David A. Evans, Alan Krupnick, Karen Palmer, and Russell Toth, “Economics of Pollution Trading for SO2 and NOx,” Annual Review of Environment and Resources, 30 (2005): 253–289. 43  See Michael Grubb, Christiaan Vrolijk, Duncan Brack, The Kyoto protocol: a guide and assessment, (London: Royal Institute of International Affairs, 1999), 87; Ricardo Sequeiros Coelho, “Deconstructing abstract carbon: All carbon emissions were not created equal,” Centre for Social Studies, University of Coimbra, accessed March 28, 2017, http://www .esee2011.org/registration/fullpapers/esee2011_a554f8_2_1304971940_2990_2392.pdf. 44  Marcel Braun, “The evolution of emissions trading in the European Union – The role of policy networks, knowledge and policy entrepreneurs,” Accounting, Organizations and Society, 34(3–4):469–487, in Coelho, “Deconstructing …”; Philibert and Reinaud, “Emmissions Trading”, 9. For a general discussion, see also OECD, The Economics of Climate Change Mitigation. Policies and Options for Global Action beyond 2012, (OECD Publishing, 2009). For more details, see e.g. Denny A. Ellerman and Ian Sue Wing, “Absolute vs. Intensity-Based Emission Caps”, Massachusetts Institute of Technology, MIT Joint Program on the Science and Policy of Global Change, Report No.100 (2003).

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the Kyoto Protocol, and its operating rules were agreed at the COP 7 (2001) in Marrakech. The end of the story to date is that more than 20 years after a heavy US lobbying within the UNFCCC talks in favour of market-driven climate change mitigation, 17 years after the agreement on the ETS operations at the COP 7, and some time after the enactment of the EU ETS, lately the overall greenhouse gas concentrations in the atmosphere had reached a new record height, as did the annual GHG emissions.45 That is, the ultimate objective of the UNFCCC – to prevent dangerous anthropogenic interference with the climate system – has failed to be attained and seems hardly ever attainable. Indeed, regarding the EU ETS,46 for example, it was initially calculated that it would reduce GHG emissions, and also that the declining cap would give rise to a price signal to generate low-carbon investments. The puzzling part of the story is that the initially projected CO2 price is ten times higher than the actual market price of carbon. That is, instead of the price projected in the early 2000s, namely EUR 40 per ton of carbon,47 in 2017 the price fluctuates between EUR 4 and 4.95 per ton, but never rises above EUR 5.48 45  The most recent data from the UN World Meteorological Organisation (WMO) shows that GHG concentrations in the atmosphere are now 400 parts per million (ppm). CO2 levels had previously reached the 400 ppm barrier for certain months of the year 2016 and in certain locations but never before on a global average basis for the entire year (that is, the year 2016). The longest-established WMO GHG monitoring station at Mauna Loa, Hawaii, predicts that CO2 concentrations will stay above 400 ppm and will not dip below that level for many generations. Between 1990 and 2015 there was a 37% increase in radiative forcing – the warming effect on Earth climate – because of long-lived GHGs such as CO2, methane and N2O (nitrous oxide). “The year 2015 ushered in a new era of optimism and climate action with the Paris climate change agreement. But it will also make history as marking a new era of climate change reality with record high greenhouse gas concentrations,” says WMO Secretary-General Petteri Taalas. WMO, “The El Niño event has disappeared. Climate change has not,” accessed April 28, 2017, https://public.wmo.int/en/ media/press-release/globally-averaged-co2-levels-reach-400-parts-million-2015. 46  Consolidated version of the Directive 2003/87/EC establishing a scheme for GHG emission allowance trading within the Community [OJ 2003, L 275/32]. 47  In retrospect, in the first EU ETS trading period the CO2 price collapsed to zero as a result of the over-allocation of allowances. In the second phase (2008–2012), the carbon price just started to rise – up to EUR30/tonne in June 2008–but was severely hit by the recession; the price has not fallen to zero but was floating between EUR6 and 7. See http://www .europeanenergyreview.eu/site/pagina.php?id_mailing=267&toegang=eda80a3d5b344bc 40f3bc04f65b7a357&id=3642. Then, in late January 2013, the EU carbon price fell to a new record low of EUR2.81 following the Energy and Industry Committee of the European Parliament opposition to a proposal to withhold 900 million future-dated allowances from the market. http://www.theguardian.com/environment/2013/jan/24/eu-carbonprice-crash-record-low, all accessed April 12, 2017. 48  Carbon market data, accessed April 30, 2017, http://www.eex.com/en/market-data#/ market-data.

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Overall, since the 1970s, following Dales’ Pollution, Property & Prices, many started seriously thinking that self-regulating markets alone were the solution for such complex problems as climate change. Orthodox Discourse on Climate Change: ‘Our Contemporary Common Universal Problem That Can Be Solved by the Market’ Here, I discuss the legal and regulatory, and especially the discursive framing of the problem of global warming that sees the emergence and empowering of global climate governance through the market as a unique possible option to save the planet. Such particular vision of the climate crisis has become a dominant cognitive setting in official, popular, academic and technical-scientific discourse. As mentioned above, Coase and Dales were among the first scholars arguing in favour of fixing social problems through market solutions, such as environmental taxes. But, especially since the late 1980s, the sustainability discourse in general, and particularly the intergenerational equity and justice notions were increasingly permeated with specific conceptualizations based on the vision of environmental degradation as current and future collective problems of our global commons. In this discourse, we as humankind are supposed to define and implement the protection of the environment for both present and future generations;49 the environmental resources are a public trust of humanity;50 and sustainable development is parallel (if not equivalent!) to sustainable economic growth.51 The two (i.e. sustainable development and sustainable economic growth) are expected to enable the countries of the world to better address the problems of climate change.52

3.2

49  “Sustainable development rests on a commitment to equity with future generations. In 1972 the United Nations Stockholm Conference on the Human Environment recognized that we had a responsibility to “protect and improve” the environment for both present and future generations. In 1992, we are faced with defining and implementing this commitment to future generations in the context of environmentally sustainable development.” Edith Brown Weiss, “Intergenerational equity: a legal framework for global environmental change,” in Environmental change and international law: New challenges and dimensions, ed. Edith Brown Weiss (Tokyo: United Nations University Press, 1992), 1. And, by the same author, see, generally, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity, (Transnational Publishers Inc., 1989); and “Our Rights and Obligations to Future Generations,” American Journal of International Law 84 (1990): 198. 50  Sharon Beder, “Responsibility and intergenerational equity,” in Enough for All Forever: A Handbook for Learning about Sustainability, ed. Joy Murray, Glenn Cawthorne, Christopher Dey and Chris Andrew (Champaign, Illinois: Common Ground Publishing, 2012), 131, 133. 51  See supra, Introduction. 52  Ibid. See also UNFCCC Articles 3(4) and (5).

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In the specific example of the climate change regime, in add­ition to Dales’ theoretical commodification of pollution, taken up and developed in practice bythe US, the OECD, the EU and eventually the whole international community of States in the UN, a particular economic cost-benefit approach came to determine what constitutes a riskless climate through very specific models of economic analysis and risk-assessment.53 It thus has arguably played a supranormative role in legitimizing one way of determining scientific evidence and prioritizing it above all else. Following these determinations, the question of what makes our climate riskless meant assessments of which actors and institutions are relevant, what sorts of risks are acceptable, etc., all of which are extremely politically sensitive and relatively suggestible issues. Imposing those in ‘objective’ terms seems to have influenced what kind of data and risk calculation make the basis of legal and regulatory objectives of sustainability, and specifically the climate regime. Economic cost-benefit analysis in the climate arena has taken on an analogous supra-normative relationship with public international law. The Stern Review’s model54 by which such a collective global policy objective stipulated in international environmental treaties should be determined, appears to be one based on Coase’s and Dales’ theoretical representations allowing to commodify environmental externalities, and, amongst others, pollution. The above model, which apparently gained authority from its positioning as ‘scientific’ and ‘objective’, is nonetheless based on several arguments that seem being mere assumptions,55 including potential projections of the future of assumed economic growth.56 These assumptions and the already embedded questions of valuation represent the most controversial aspects of the modelling in the Stern Review relating to the discounting rate that was adopted based on a Western appreciation of how future risk/harm is assessed.57 That is, the life style and risks of the global North seem to be taken as a sample, or a point of departure. Notably, later Stern himself argued that his model “suffer[s] from 53  The most influential of that kind of studies is the famous Stern Review. Nicholas H. Stern, The Economics of Climate Change: The Stern Review, (Cambridge: Cambridge University Press, 2007). See also Jean Dreze and Nicholas H. Stern, “The Theory of Cost-Benefit Analysis,” in Handbook of Public Economics, Vol II, ed. Alan J. Auerbach and Martin Feldstein (Elsevier, 1987). 54  “[M]easuring and comparing the expected benefits and costs over time of different potential policy goals can provide guidance to help decide how much to do and how quickly”, Stern, Stern Review, 318. 55  Dreze and Stern, “Cost-Benefit Analysis,” 900–990, in particular 911. 56  For a discussion of these debates see Stern, Stern Review, “Chapter 2: Economics, Ethics and Climate Change” and “Chapter 2A: Ethical Frameworks of Intertemporal Equity”. 57  Ibid.

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the omission of the scale of damage that could arise from catastrophes, mass migration and serious conflict.”58 With respect to the latter ‘omissions’, numerous studies represent serious counter-evidence of the underpinnings, as well as the tangible and potential results of the existing global climate regime adaptation to and mitigation (curiously, in 2017 we are not talking anymore about the abatement!) of global warming. As many researchers argue, natural environmental disasters, such as hurricanes and floods, can be of concern for environmental justice,59 for the poorest countries in the international system are, at the same time, the most geographically and economically vulnerable.60 Some even go so far as to claim that the focus of the international climate regime, previously being a strategy of abatement, later becoming that of mitigation and adaptation, includes the projected removal of entire indigenous communities if necessary.61 Yet the same most vulnerable actors have the least impact on legal mechanisms aiming to prevent the escalation of climate disasters.62 Summers and Smith, in referring to numerous US and international studies, argue that [j]ust as these impoverished small Third World nations are among the most vulnerable to the effects of global warming while simultaneously being in the weakest position to halt its progress, indigenous peoples in the United States (particularly tribes of Alaska) are in a similar situation.63 So far, in 2017 the catastrophes, cases of mass migration, and armed conflicts are far from scarce in 2017. Hence, we do not need to wait for some abstract future to see how the scale of damage affects Stern’s climate model: that is, 58  Nicholas H. Stern, “The Structure of Economic Modelling of the Potential Impacts of Climate Change: Grafting Gross Underestimation of Risk onto Already Narrow Science Models,” Journal of Economic Literature 51(2) (2013): 838, 847. 59  Barbara L. Allen, “Environmental justice and expert knowledge in the wake of a disaster,” Social Studies of Science 37 (2007): 103–110 ; Yvonne Rydin, “Justice and the geography of Hurricane Katrina,” Geoforum 37 (2005): 4–6 ; James R. Elliott and Jeremy Pais, “Race, class, and Hurricane Katrina: Social differences in human responses to disaster,” Social Science Research 35 (2006): 295–321; Miranada Welbourne, “The environmental justice movement’s response to Hurricane Katrina, a critique: Problems faced, successes, failures, and the state of the movement one year later,” Thurgood Marshall Law Review 125 (2007): 125–145. 60  Ruth Gordon, “Climate change and the poorest nations: Further reflections on global inequality,” University of Colorado Law Review 78 (2007): 1559–1624. 61  Rebecca Tsosie, “Indigenous people and environmental justice: The impact of climate change,” University of Colorado Law Review78 (2007): 1625–1677. 62  Gordon, “Climate change,” 1561. 63  Summers and Smith, “Intergenerational Equity,” 722.

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the model is simply not working. The efforts to resolve the complexities of global climate crisis by means of public international law, and specifically, international environmental law instruments seem to equally fail. These can be attributed to the pervasive contemporary models of development, based on an underlying assumption that cost-benefit analysis and economic growth can simultaneously address concrete crises and solve overall distributive justice concerns. A very particular governance rationality they generate seems to underpin the form of global climate action whereby governmental measures, subject to a set of ‘scientific’ or ‘objective’ truths, were formulated in a way that sanctions the market to check the governmental action. The next section looks at the rationale of particular bottlenecks with which the above models endorsing current climate regime, and indeed the whole contemporary discourse of sustainability and international environmental law, are beset. 4

Main Conflicts Permeating Market Sustainability and Environmentalism

As mentioned above, the economic cost-benefit analysis in the climate regime seems to take on a supra-normative relationship with relevant public international law. This particular Stern Review’s methodology was used to set collective global environmental and climate objectives. As a result of the aforesaid methodology, the Stern Review came to the conclusion that [t]he current evidence suggests aiming for stabilisation somewhere within the range 450–550ppm CO2. Anything higher would substantially increase risks of very harmful impacts but would only reduce the expected costs of mitigation by comparatively little. Anything lower would impose very high adjustment costs in the near future for relatively small gains and might not even be feasible, not least because of past delays in taking action.64 The Paris Agreement, entered into force on 4 November 2016 sets in its Article 2 the following goals: to maintain the increase in global temperatures well below 2°C above pre-industrial levels, whilst making efforts to limit it to 1.5°C. The action aiming at restricting the temperature rise above pre-industrial levels ‘well below’ 2°C, and especially to limit it to 1.5°C requires stabilization 64  Stern, Stern Review, 318.

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at no more than 450 parts per million (ppm) whereas, as I mentioned earlier, a global average basis for 2016 was already 400ppm.65 However, even this stabilization, let alone Stern’s above stabilization “somewhere within the range 450–550ppm CO2” is already very dangerous. To wit, at the Copenhagen COP, a spokesperson for small island States warned that with restricting the global warming to 2°C “some countries will flat out disappear”, while a spokesperson for Africa described such a target as a “suicide pact” for the drought-stricken continent.66 As such, these ‘one-size-fits-all’ quantifications of our ‘common’ global limits or climatically equal mitigation targets are not only unjust regarding climatically different parts of the world, but are simply dangerous. The remainder of this section addresses specific techniques and practices that are utilized to achieve this ‘common vision’ of economically ‘efficient’ ecological limits of anthropogenic interference with the climate and overall Earth ecology. I will address only two techniques that seem to be the most problematic, hence important, for the topic of the intergenerational justice and equity. Recall that the Kyoto Protocol flexibility mechanisms, consisting of ETS as well as two offset mechanisms, JI and the CDM, that is, both ‘cap-and-trade’ and ‘command-and-control’ schemes rely on legislatively imposed limits. After the US lobbied for the incorporation of a binding ‘cap-and-trade’ into the UNFCCC, and a decade later, the EU launched the first ETS, the qualitative assessment of limits within the climate regime resulted in a very particular approach to the question of limits in international environmental law and a broader sustainability discourse. Namely, it involves at least two main alterations from Bruntdland’s sustainability narrative (the latter seeking intergenerational justice by aiming at limits, not growth): substitutability of nature (1); and the decoupling of economy from actual resource use (2). 4.1 Substitutability A mainstream business and industry argument is that we may compensate future generations for the loss of exhaustible natural resources with ‘humanmade’ capital (i.e. machinery, buildings, etc.) and properly ‘human’ capital (technology, skills and knowledge).67 The rationale of this – quite simplified – argument is that an exhausted natural resource could be compensated by investments in technology and knowledge,68 including investment in, for 65  W MO, “The El Niño”. 66   Cited in Bill McKibben, “Global Warming’s Terrifying New Maths,” Rolling Stone 19 July 2012, accessed March 8, 2017, http://www.rollingstone.com/politics/news/ global-warmings-terrifying-new-math20120719. 67  Beder, “Responsibility”, 136. 68  Ibid.

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instance, the R&D on, as well as actual production of, the alternative energy sources – so as to provide an ongoing equivalent income. Regarding the example taken in this chapter, namely, our current global climate regime, one commentator has observed that it is quite based on a “fetishist invocation of CO2 as the ‘thing’ around which our environmental dreams, aspirations, contestations as well as policies crystallize.”69 Indeed, all targets of CO2 emissions cuts are constructed as tradable commodities by “abstracting away from place, technology, history and greenhouse gas type.”70 They thus sanction only a very relational view that sees different past, current and future climate disasters as equivalent both climatically and in GHG emissions terms. Legally speaking with respect to the climate regime, substitutability means the methods by which any mitigation policy could be realized in equivalent terms through the commodification of pollution and its subsequent trading, and specifically, CO2 trading. 4.2 Decoupling In the current global action endorsed by the UNFCCC, decoupling participates in the making of new forms of jurisdiction, rights and values – in particular, through the operations of carbon trading. Generally, a decoupled economy is one that is able to sustain GDP growth without having a negative impact on environmental conditions.71 Decoupling, especially advertised and brought to the wider public by the UNEP since the early 2000s, was taken up by the OECD, the latter defining the term as referring to breaking the link between environmental ‘bads’ and economic ‘goods’.72 In 2014, the UNEP International Resource Panel published a second report, “Decoupling-2” (logically) that focused on existing technological options for both developing and developed countries to accelerate decoupling, hence 69  Erik Swyngedouw, “Apocalypse Forever?: Post-Political Populism and the Spectre of Climate Change,” Theory, Culture and Society 27 (2010): 213, 219. 70  Larry Lohmann, “When Markets Are Poison: Learning About Climate Policy from the Financial Crisis,” The Corner House, Briefing 40, (2009), 29. 71  U NEP International Resource Panel (IRP), Decoupling natural resource use and environmental impacts from economic growth, 2011 Report, accessed March 30, 2017, http://www .unep.org/resourcepanel/Publications/AreasofAssessment/Decoupling/Decoupling/ tabid/56048/Default.aspx. For critics of decoupling, see e.g. John B. Foster, Brett Clark and Richard York, “The Midas Effect: A Critique of Climate Change Economics,” Development and Change 40(6) (2009): 1085. 72  O ECD, “Indicators to Measure Decoupling of Environmental Pressure from Economic Growth,” 2002, accessed March 31, 2017, http://www.oecd.org/dataoecd/0/52/1933638.pdf.

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boost their resource ‘productivity’–that is, to bring in the economic and environmental ‘benefits’.73 On 26–27 September 2015, the UN’s new Sustainable Development Goals (SDGs) were signed in New York. Alongside the main overall objective – to eradicate poverty by 2030–objective No.8, called “Decent work and economic growth”, aims to promote “sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all”.74 In particular, its objective 8.4 aims to improve “progressively, through 2030, global resource efficiency in consumption and production and endeavour to decouple economic growth from environmental degradation, in accordance with the 10-year framework of programmes on sustainable consumption and production, with developed countries taking the lead”.75 In this paradigm of decoupling, few issues remained unanswered vis-a-vis inter-generational – but also inter-class and racial – justice and equity. They could especially be brought by critics of so-called Bruntdland’s ‘sufficientarianism’: i.e. where Bruntdland’s sustainability definition falls short to explain plural systems and values, local climate and soil particularities, population density, economic and social development, etc. Recall that, as per Bruntdland, a development is only deemed sustainable if it “meets the needs of the present without compromising the ability of future generations to meet their own needs”. However, Daly has for example argued that “… the basic needs of the present should always take precedence over the basic needs of the future but the basic needs of the future should take precedence over the extravagant luxury of the present”.76 Seen in this light, the principle and politics of decoupling do not seem to be sufficient safeguards for intergenerational justice. To wit, regarding more particularly the example of the climate regime, necessary political, economic and social distinctions between types of ‘environmental bads’ should be made alongside questions of differentiated needs: i.e., between ‘luxurious’ and ‘necessary’ emissions; between ‘avoidable’ and ‘unavoidable’ emissions; between emissions from historical over-consumption and from mere subsistence survival; between aviation fuel from a private jet carrying one person and 73  U NEP IRP, Decoupling 2: A Report of the Working Group on Decoupling to the International Resource Panel. Ernst von Weizsäcker et al., 2014, accessed March 31, 2017, http://www.unep.org/resourcepanel/Publications/AreasofAssessment/Decoupling/ Decoupling2/tabid/133371/Default.aspx. 74  U N post-2015 SDGs, Goal No.8. 75  Ibid. 76  Herman E. Daly, Beyond Growth, The economics of sustainable development, (Boston: Beacon Press, 1996), 36.

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making a two-hours roundtrip because of a top business meeting, and methane from a peasant’s cow; etc. As mentioned, in the current global climate jurisdiction, decoupling is operated through carbon trading. Namely, within the framework of the Kyoto Protocol, the latter creates economic value of pollution, that is, an ‘economic good’, through the enactment of dematerialized carbon market and its formal limits in the binding legislation. Consequently, thanks to this new market, the growth of immaterial carbon commodities is decoupled from actual resource use, including both the fossil fuels and the clean air and the atmosphere as exhaustible natural resources. In public international law, the global atmospheric space could be looked at by analogy to the high seas. Historically, the dominant visions of the legal status of the high seas and its natural resources are as follows: (i) to identify it as res communis, making the high seas and its resources subject to freedom of the high seas principle and thus recognizing that the high seas could be used by any State capable of exploring and exploiting it; and (ii) to see the high seas as res nullius, basically implying the same as above plus a possibility of appropriation of the high seas and its resources through occupation on a ‘first-come-first-served’ basis.77 These two visions seem to lead to the same result regarding the exploration and exploitation of the high seas and its natural resources: i.e. these activities would be restricted to a few actors who have the necessary technological and financial capacities. This, in turn, would only further exacerbate injustices between countries, especially regarding developing States.78 Arguing from analogy, neither the sovereignty nor the freedom approach could provide for a minimally just legal framework for the global atmospheric space and its pollution problems. In addition to prospects of appropriation and occupation through the tools of traditional international law, there is an extra possibility to make clean air and the atmosphere ‘excludable’ natural resources that are therefore appropriable. To wit, the Kyoto Protocol produces scarcity, realized through legal limits on use, as well as the regulation and enforcement of this scarcity of air.79 Based on the above, if in so doing the binding emissions cuts targets create a contractual relationship to the global atmospheric space, it remains a contract

77  Based on Yoshifumi Tanaka, The international law of the sea (2nd edn, CUP, 2015) 178–179. 78  Ibid., 179. 79  Kevin Gray, “Property in Thin Air,” The Cambridge Law Journal 50(2) (1991) 252.

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whose terms and content are determined by historical and ongoing relations of purely formal equality, whereas the actual inequalities of all types persist. The unequal nature of decoupling and subsequent carbon trading scheme in the global climate regime is open to criticism. First of all, criticism might come from the side of distributive justice theory (especially, egalitarian theory and the John Rawls’ classic80). The latter theory suggests that it is not the historical differentials but per capital equal allocations that should be used in order to further adjust formally equal allocations to actual development demands of the global South.81 However, in using the year 1990 as the GHG emissions baseline, the framework seems to ignore greater disparities in historical emissions and does not take into account the notion of the so-called ecological debt. The concept of ecological debt emerged in the 1990s. Originally, it is a matter of debt which the developed countries owe to developing ones. More specifically, it is based on the argument of historically unequal ecological exchanges between the global North and South, exposed by Spanish economist MartinezAlier, amongst others.82 An unequal ecological exchange generally posits that the final price of goods and services that are produced in poorer countries and exported to the market of the global North is far from cover actual social and environmental costs of their production.83 Consequently, even if in the past poorer countries have been polluting the atmosphere through excessive ecologically disastrous production of exports, a lot of this pollution might and should be directly attributable to the global North. Even commitments to egalitarianism therefore do not seem to resolve all controversies surrounding how allocations are determined, calculated and distributed, i.e. in terms of space, time, or location. For even if emissions rights could be qualitatively and equitably allocated – what about the structural differences of the emitters (viz. class and racial differences, for example)? All in all, the techniques of substitutability and especially the decoupling seem to reveal that a particular understanding of climate change as one of ‘negative externalities’ of post-war global economic model persists. Namely, 80  John Rawls, A Theory of Justice (revised edition), (Oxford/New York: Oxford University Press, 1999). 81  Paul Baer, Glenn Fieldman, Tom Athanasiou and Sivan Kartha, “Greenhouse Development Rights: Towards an Equitable Framework for Global Climate Policy,” Cambridge Review of International Affairs 21(4) (2008): 649. 82  See different interventions of the conference « La dette écologique », 5 and 6 June 2014, Centre d’Etudes Juridiques et Politiques (CEJEP), University of La Rochelle, accessed April 13, 2017, http://cejep.univ-larochelle.fr/COLLOQUE-La-dette-ecologique. 83  Ibid.

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this understanding of climate change as an object and a problem in ‘scientific’ and ‘technical’ universal terms is a necessary precondition for construction of various ownership rights and mechanisms of management and trading to come up as a ‘solution’. This specific conceptualization of distributional climate justice seems to be based on at least three interlinked premises: (i) the ultimate givers of norms and receivers of rights and obligations regarding climate justice are still States; (ii) climate change is a problem of externalities, that is, of the fact that legal regulation or market relations simply did not initially extend to the particular domain of environment, thus creating a specific regulatory construction that separates economic growth from actual resource use, and proposes to compensate the loss of exhaustible natural re­sources with investments in technology and knowledge, so as to provide an ongoing equivalent income – thus only justifying and legitimizing the over-exploitation of natural resources; and (iii) climate change is a current and future problem equally incumbent on the entire humanity. 5

General Concluding Remarks

Prevailing discourses and practices of sustainability and international environmental law seem to be permeated with dichotomist conflicts between economy and ecology, profit and prudence, the risk-taking of the present and the security of the future. Indeed, the question of what can be considered sustainable in reference to society oscillates between very different, sometimes even opposite, models – either striving to attain sustainability through improving flexibility or, quite the contrary: guaranteeing stability and overall distributive justice. However, few of relevant models and arguments look at the past events and structural inequalities along the lines of social, race, class and gender differences, as well as geographical location. The notion of sustainable development has brought the nexus ‘naturejustice’ back into politics by forging a link between sustainability and inter-generational equity concerns. Quickly, however, sustainability surpassed its initial Bruntdland-style limitation to nature-related policies, and has become a buzzword applicable to almost any policy realm – and especially the market economy. Just as in the variety of contexts where it is applied, there also seems to be a rather varied understanding of what sustainability means and stands for.

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In the global context, the sustainability debate plays into the larger power play perspective. The international climate regime is one of the most relevant examples. Those who own the discourse and manage to pursue a certain vision of sustainability, safe climate, our ‘common’ sustainable development goals, the law applicable to the climate change, etc., affect the agenda-setting and regulatory outcomes in line with the interests and objectives they represent. In effect, since geographical, social and local contexts and concerns differ significantly, the internationally-defined sustainability goals, climate change mitigation targets, etc. can work as a Trojan Horse for less privileged and influential. Hence, what is sustainable for Western Europe will not always be sustainable for the East. The way sustainability is thought of in the North will be far from its understanding in the South. Whether an actor is a peasant, an industrial, a fossil-fuels exporter, a developed or developing country, a coastal or land-locked State, etc. will affect strategic and/or national conceptualization of sustainability and connected concepts, as well as the local reception of transnational sustainability-based rules and targets. This can have paradoxical, often contradictory outcomes – for past, current and future generations of humans and nature. The tendency of a limitless world is captured in the paradigm of current global economic model based on an underlying assumption that economic growth and free trade simultaneously improve global welfare and address distributive justice concerns.84 The offered solutions, such as substitutability and decoupling, however, do not resolve, but instead transpose, spatially and temporally, the problem of climate change. Seen from the perspective of intergenerational justice, the problem of climate change, and in particular, current attempts to regulate the GHG emissions reveal the inadequacy of combined market-based and traditional international law strategies in the face of endless economic growth on the one hand, and persistent population growth on the other, both implying ever-rising energy consumption and natural resources depletion. As a way forward, the ideas of a wider narrative and practices of contemporary environmentalism and sustainability should change. To wit, today’s approach to climate change as an issue to be solved by international environmental law and policies precludes us from addressing it from a more pluralistic and inclusive perspective that spreads far beyond the universality of State form, an international environmental treaty, the paradigm of sustainable economic growth and ensuing cost-benefit analysis resulting into market-based 84  See e.g. Carlarne, “Delinking …”, 13.

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efforts. Instead, if we seek to follow the path of intergenerational climate justice, we should think how to focus more on differentiated environmental ‘bads’ and differentiated economic needs: on a ‘macro’ level, i.e. between more and less industrialized countries, but also on a ‘micro’ level – namely, between citizens of different classes and races within each country, inhabitants living in the countryside against those living in urban areas, as well as all other, nonhuman, forms of life of our planet. This shift in perspective will hopefully allow us to think of sustainability and climate change differently – that is, in a manner, which is more consistent with the intergenerational justice as a concept of mutual recognition, pluralism and non-domination.85

85  Views and errors are mine. Comments and suggestions are most welcome at: anna. [email protected]/ [email protected].

Chapter 8

Looking Forward: Balancing the Role and Responsibilities of Business in Society Sonia Gawlick and Jean Brice Audoye The very first chapters of this book explore the concepts of equity and sustainable development. Cottier’s chapter defines equity as the basis for sustainable development, which requires a careful assessment and balancing of social, economic and ecological interests. The next two chapters, by Michael Rose and Catherine Pearce, describe the tension between democracy and sustainable development. While Rose proposes ‘proxy representation’ as a conceptual foundation for considering future generations in our present-day democratic institutions, Pearce proposes the appointment of a “Guardian for Future Generations” to help provide far-sighted policy-making in the interests of current and future generations. Both of these proposals, however, have jurisdictional limitations. The chapters of Part 2 then expose environmental concerns that cross national borders. Schäli’s chapter examines the gaps in principles such as Territorial Sovereignty, which leave marine resources vulnerable to overexploitation and marine pollution; Spijkers’ chapter examines equity in domestic water policies and discusses a general framework of international water law; and, Gudas and Weber’s chapter on the promotion of renewables explores the integration of renewable energy and water protection policy objectives within the framework of sustainable development. At the end of Part 2, Aseeva’s chapter on climate change reiterates that policy-making at the international level is inevitably limited by contemporary models of State sovereignty. In this brief conclusion, we build on the themes presented in Parts 1 and 2 and consider an additional topic that generally is not limited by State sovereignty: the role and responsibilities of business in society. Today, business leaders are increasingly aware of the impact of their decisions on society and the environment. They recognize that as society evolves, their roles and those of the companies they manage are evolving. Increasingly, business leaders are not asking why they should manage businesses in a sustainable and socially responsible manner, but rather how they can do so. As business leaders consider the economic effects of their policies and decisions, they are increasingly trying to understand and ascertain the social and environmental

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decisions that must be made in order to ensure the continued and long-term survival of their companies. This conclusion to Parts 1 and 2 reconciles notions of profitability and sustainable and socially responsible management. It considers the changing role of business enterprises in our society and looks at implications of implementing Corporate Social Responsibility (CSR) practices and policies. It demonstrates that businesses that include CSR practices and policies in their strategy and governance structure can be more resilient and remain competitive and capable of meeting present-day business needs without compromising future business needs or those of future generations. 1

Defining Corporate Social Responsibility

The modern notion of CSR first appeared in the 1960s and, as an emerging concept, many definitions have since been put forth. CSR, once seen primarily as a law abiding or philanthropic endeavour, is garnering greater support across corporations and board settings with aspects of social and environmental considerations when assessing their longer-term strategic success. In reality, there are many definitions of CSR because of the multitude of different perspectives (political, economic, social, and corporate) and stakeholder groups. In addition to the term’s multiplicity of definitions, there are significant differences in approaches to CSR across countries and cultures, as well as a range of ways that a business can incorporate what are considered socially responsible practices across the various functions of a company. In addition, the concept of social purpose and social impact, initially entering the discourse through CSR, has also evolved and has since been integrated globally in, for instance, the Millennium Development Goals, and the Sustainable Development Goals, discussed in Cottier’s chapter on “Equity in International Law”. Despite the many definitions and interpretations, social, economic, and environmental concerns are common to all approaches, as is the involvement of different stakeholder groups, and the voluntary nature of CSR policies. Today, one considers that a business is socially responsible if it intentionally integrates environmental and social issues, regardless of the extent, in its daily activities and interactions with stakeholders.1 In order to better capture the concept of intergenerational equity, we define CSR as: strategic decisions 1  Martin-Juchat, Fabienne. Communication des entreprises sur la responsabilité sociale: constat du décalage français. Les Enjeux de l’information et de la communication, 2007, no 1, pp. 35–49.

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(i.e. regarding operations, value chain, or customer supply chain) made to improve environmental, social, and governance performance.2 2

Changing Role of Business in Society

A business enterprise is the mechanism by which capitalistic societies enable the production and distribution of goods and services. Historically, profit maximization, within the boundaries of the law, was seen as the only purpose of existence for a business with little to no consideration for non-economic values, the people who worked within the organization, or the society in which it functioned and that enabled it to exist and prosper. According to Milton Friedman, “the only responsibility of business [was] to increase profits”, and to be held morally responsible for non-economic matters was to distort the economic mission of business in society, sabotage market mechanisms, and distort the allocation of resources.3 It is society that has given business enterprises legitimacy and the right to exist; it is society that has created the laws and mechanisms that enable a business to prosper; and, it is society, recognizing that businesses do not operate in isolation, that is demanding greater responsibility and accountability of businesses and business leaders, to consider the social and environmental impact of business decisions not only for today but also for the future.4 In addition to society’s needs, current environmental and global issues are compelling business leaders to consider social and environmental practices as part of their long-term strategy. In a recent letter, BlackRock CEO, Larry Fink, asked company CEOs to consider the longer-term impact of their business decisions rather than focusing on short-term performance. Fink asked CEOs to consider how their decisions not only impact shareholders, but all stakeholders. According to Fink, “society is demanding that companies, both public and private, serve a social purpose. To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society.” According to Fink, “[t]o sustain that performance … you must also understand the societal impact of your business as well as the ways 2  Tensie Whelan and Carly Fink “The Comprehensive Business Case for Sustainability” Harvard Business Review, October 21, 2016 https://hbr.org/2016/10/the-comprehensive-business-casefor-sustainability (last accessed 07.07.2018). 3  Milton Friedman “The Social Responsibility of Business is to increase its Profits”, The New York Times Magazine, September 13, 1970. 4  Donna J. Wood and Philip L. Cochran, Business and Society in Transition, Business and Society 31(1) 1992 1–7.

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that broad, structural trends – from slow wage growth to rising automation to climate change – affect your potential for growth …”.5 Though some business leaders are still debating why they should incorporate CSR practices or policies, many more business leaders and businesses have moved beyond the legal requirements and stand alone policies. More and more business leaders are recognizing that strategic management and longterm economic value requires businesses to engage with different stakeholders in order to assess long term environmental issues and anticipate future trends, as well as the shifting needs and values of society. Business leaders are increasingly aware that social and environmental policies and practices must be an integral part of their long-term business strategy and central to their operations. They are recognizing that to survive and prosper, they must be aware of their role and purpose within society and as society’s needs shift and evolve their roles, and those of the companies they manage, must also evolve. 3

Evaluating the Impact of Corporate Social Responsibility

Social and environmental responsibility has become a topic of discussion for many companies and organisations both because it is encouraged by governments and because it brings with it many innovative business ideas and models (e.g. new energies, organic growth, creation of eco-labels) that are of increasing interest to consumers.6 It has also become a primary issue for managers, who see it as a motivational tool to create employee incentives and attractiveness for the company. Business leaders are also recognizing that to ignore social and environmental issues can have negative repercussions.7 There are however competing philosophies regarding the cost-effectiveness of CSR policies. According to one school of thought, CSR should be profitable; according to the other, it should be sustainable. In fact, profitability and sustainability are not mutually exclusive and CSR practices and policies can in fact be both, as reported in the results of a survey published jointly by the Massachusetts Institute of Technology and the Boston Consulting Group.8 5  Larry Fink, “Larry Fink’s Annual Letter to CEOs: A Sense of Purpose” https://www.blackrock .com/corporate/en-us/investor-relations/larry-fink-ceo-letter (last accessed 07.07.2018). 6  For example, the European Ecolabel or the label Max Havelaar. 7  Example: Rana Plaza April 2012 and the clothing industry, Nike 1992 Child Labour scandal, Kinder Morgan shareholders vote for environmental accountability 2018. 8  Knut Haanaes; Balu Balagopal; David Arthur et al., “First Look: The Second Annual Sustainability and Innovation Survey” MIT Sloan Management Review, 2011, vol. 52(2), pp. 77–83.

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According to the survey findings, two-thirds of the responding executives indicated a belief that sustainability is essential to competitiveness. These same business executives stated that CSR could increase income by either increasing revenues through new business opportunities or reducing costs. In addition, they also thought that CSR provided an essential tool for risk management, and was a means to attract and retain talent, all of which can ultimately improve and create shareholder value. Further studies have found that CSR policies are not only good for profits but also good for long-term business success. A study by the Economist Intelligence Unit looked at the link between CSR and long term strategy and stated that “corporate citizenship is becoming increasingly important for the long-term health of companies even though most struggle to show a return on their investment from socially responsible activities”, with 74 per cent of respondents to the survey indicating that “corporate citizenship can help increase profits at their company”.9 Respondents to the survey who believed that effective corporate citizenship could help the bottom line were also more likely to indicate that “their strategy is ‘very important’ to their business (33 per cent), as compared with other survey respondents (8 per cent).”10 According to studies by Margolis and Walsh,11 as well as Orlitzky, Schmidt and Rynes,12 there is a positive correlation between CSR and the financial performance of a company. In other words, leaders or managers of a company may be able to increase their revenues and reduce their costs if they improve corporate social performance. For example, the implementation of CSR policies consolidates organizations, interests consumers (86% say they would switch brands based on social issues),13 gives the impression that the company’s activities are better able to manage risk through supply chain reliability, positively influences the balance sheets, facilitates human resource management (72% of job seekers prefer to work for a company that supports social causes),14 and may foster innovation. 9  Economist Intelligence Unit, “Corporate citizenship: Profiting from a sustainable business” November 2008 http://graphics.eiu.com/upload/Corporate_Citizens.pdf (last accessed 07.07.2018). 10  Ron Robins, “Does Corporate Social Responsibility Increase Profits?” Business Ethics May 5, 2015 http://business-ethics.com/2015/05/05/does-corporate-social-responsibilityincrease-profits/ (last accessed 07.07.2018). 11  Joshua D. Margolis and James P. Walsh, “Misery Loves Companies: Rethinking Social Initiatives by Business” Administrative Science Quarterly, 2003, vol. 48, 268–305. 12  Marc Orlitzky, Frank L. Schmidt and Sara L. Rynes, “Corporate Social and Financial Performance: A Meta-Analysis” Organization Studies, 2003, vol. 24(3), 403–441. 13  William Shaw, Business Ethics, 9th edition, Boston: Cengage Leaning, 2017) 172 ff. 49. 14  Ibid.

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Finally, a recent Harvard Business Review article identified that “through regular dialogue with stakeholders and continual iteration, a company with a sustainability agenda is better positioned to anticipate and react to economic, social, environmental, and regulatory changes as they arise.”15 Thus, by incorporating sustainable and social responsible practices into the business model, businesses are not only fulfilling legal and moral obligations to the environment, consumers, shareholders, employees, and other stakeholders but are also positioning themselves strategically. 4

Profitability and Social Performance

In line with the views of Milton Friedman, one of the architects of the movement against social responsibility, critics argue that social performance and financial performance are negatively correlated. According to this view, companies that increase their social performance lose their competitive advantage, have higher costs and thus lower profitability. Adding to this argument is that many business leaders are looking for ways to understand and measure overall company performance using not only traditional financial results, but also environmental and social performance results and are sometimes reluctant to implement CSR policies due to a lack of adequate performance measurements and beliefs regarding their cost-effectiveness or impact to long-term strategic success.16 Although many experts adopt this view and believe that it is futile to seek a positive relationship between the social and financial performance of companies,17 Michael Barnett and Robert Salomon, argue that CSR is a cost-effective choice.18 Barnett and Salomon studied the performance of 214 companies all belonging to the Standard and Poor’s 500 and the Russell 3,000 indices over the years 1998–2006. Using the Kinder, Lydenberg & Domini ratings system (KLD) to determine social performance and profitability using

15  Whelan and Fink “The Comprehensive Business Case for Sustainability”. 16  Jacques Viers, Vincent Brulois, “L’évidente interpellation de la sociologie par la RSE” Sociologies Pratiques, 2009, vol. 1, no 18, 1–2. 17   See, for example, Noël Amenc and Véronique Le Sourd, “Les performances de l’investissement socialement responsable en France” EDHEC, 2008, 1–36. 18  Michael Barnett and Robert Salomon, “Does it pay to be really good? Addressing the shape of the relationship between social and financial performance” Strategic Management Journal, 2012, n°33, 1304–1320.

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net income (NI) and return on assets (ROA), Barnett and Salomon found that the correlation between CSR and profits could be presented in a U-shape.19 Barnett and Salomon determined that financial performance was dependent on the level of engagement of social performance. They observed that as a company’s commitment to social performance increased (as demonstrated by an increase in KLD score), their NI and ROA declined at first. Companies that had moderate social performance levels achieved the lowest financial performance, positioning them in the hollow of the curve. However, Barnett and Salomon also observed that the relationship was not symmetrical: the right side of the curve was higher than the left side of the curve, demonstrating that companies with the highest KLD scores outperformed companies with lower KLD scores. Barnett and Salomon’s explanation for this U-shape relationship is that: “as firms engage in socially responsible practices, they accrue stakeholder influence capacity (SIC).”20 That is, as companies implement and reinforce their commitment to CSR policies, costs increase and profitability starts to decrease. At the same time, there is no, or minimal, impact or recognition by stakeholders which puts them in the ‘hollow’ of the curve. Over time, as stakeholders begin to recognize a company’s efforts and commitments, SIC begins to increase and companies are now able to profit from their social investment and thus net income begins to increase either due to lower costs, and/ or increased revenues. Finally, as shareholder confidence peaks, companies see increased financial performance, which may exceed the level reached before it started its CSR initiatives.21 Barnett and Salomon conclude that for a positive correlation to exist, businesses must have a high level of social performance and time to accrue SIC in order to reap the financial benefits. That is, businesses need time to convince stakeholders that their intentions to incorporate CSR policies and build them into the business model are legitimate and that these policies and/or initiatives are not just superficial one-off projects. In contrast, “firms with inadequate SIC are unable to generate favorable returns on the investments they make in social responsibility and so the relationship is negative.”22 19  Kinder, Lydenberg and Domini & Co. first made available its social performance database during the 1990s and the KLD data have since become a widely accepted set of Corporate Social Performance measures. 20  Michael Barnett 2007, “Stakeholder influence capacity and the variability of financial returns to corporate social responsibility” Academy of Management Review, 32(3): 794– 816. See also Michael Barnett and Robert Salomon., op. cit. 21  Whelan and Fink op. cit. See also Barnett, Michael; Salomon, Robert., op. cit. 22  Ibid.

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Based on these findings, Barnett and Salomon argue that both Milton Friedman and those who advocate for greater CSR polices are correct because they focus respectively on different parts of the curve. In addition, they postulate that past research focused on companies that were not only located on different parts of the curve (different levels of social performance or commitment), but also at different moments in time when they had not accrued enough SIC to demonstrate positive financial performance. They conclude that businesses that engage in a high level of social performance can in fact achieve better financial performance, as measured by NI and ROA, and that the most profitable companies are those that have the highest degree of commitment to sustainable and social management. That is, those companies that have the capacity and willingness to fully incorporate CSR policies into their business model are capable of achieving higher financial performance. 5 Conclusion Sustainability and social responsibility are critical aspects of CSR manage­ ment and an integral part of “Intergenerational Equity”, as defined in the first chapter of this book by Thomas Cottier. As society continues to evolve, there has been an increasing awareness that past and present environmental and social practices are neither sustainable nor acceptable. This is clear from the chapters in Part 2 of this book on marine resource allocation and ocean governance, international and domestic water law, the promotion of renewables, and intergenerational climate justice. With this awareness, society has also begun to acknowledge its responsibility to this and future generations, and policy proposals, such as those put forth respectively at chapters 2 and 3 by Rose and Pearce, are increasingly being considered. All of the contributions to Parts 1 and 2 of this book point to how policy changes are inevitably limited by contemporary models of State sovereignty. Our Conclusion on the role and responsibilities of business in society allows us to shift the focus away from these constraints and toward a more transnational perspective. As society evolves, so does its awareness of the role and responsibility of businesses, as an integral part of society. As such, society is now demanding that business leaders take a greater responsibility in how they manage their businesses, and not only consider the economic but also the social and environmental consequences of their business decisions on today’s generations, as well as future generations.

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Historically, businesses did not consider non-economic values in their business decisions, and any CSR practices were limited to legal requirements or philanthropic endeavours. As society and CSR practices evolved, competing philosophies emerged: CSR could either be sustainable or profitable, but not both. Barnett and Salomon, through their research, demonstrated that social performance and profitability are not mutually exclusive and that when a business has the capacity and willingness to fully incorporate CSR practices and policies into their business model and strategy, they are capable of achieving higher financial performance. The fact is that businesses are increasingly aware of how their role is changing and as society’s awareness and expectations evolve, so must they. Businesses are increasingly aware that to incorporate sustainable and socially responsible practices into the business strategy is not only desirable but increasingly necessary in order to survive and remain competitive for today as well as tomorrow. Acknowledgements Sonia Gawlick would like to thank Andrew Robinson and Shaheeza Lalani for their comments and support.

Part 3 Cultural Concerns

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Chapter 9

Genocide Denialism as an Intergenerational Injustice Melanie Altanian [The focus on justice] creates the impression that we should always understand injustice negatively by way of a prior grasp of justice. But, less obviously, the route to understanding may sometimes be the reverse. Miranda Fricker, Epistemic Injustice: Power & the Ethics of Knowing

∵ 1 Introduction The concept of dealing with the past becomes especially relevant in contexts where violations of all dimensions of human rights (social, economic, civilian, political and cultural) and a violation of international humanitarian law have taken place, and where repairing the harm with punitive legal measures alone is either insufficient or impossible. Dealing with the past as a special form of justice, also understood as transitional justice, means to take various measures through which post-violent conflict states and societies may establish just institutions and the moral basis for democracy; restore the dignity of victims as well as perpetrators; and, promote reconciliation. Transitional justice can, thus, be considered as an element of intergenerational justice respectively intergenerational equity, where the focus is on establishing sustainable, peaceful, social relationships among groups or members thereof within an intergenerational polity or society. One of the main positively defined rights that such measures ought to address is the right to truth, including recognition of the injustice.1 However, since the creation of the term ‘genocide’ and its respective codification as a particular crime against humanity in the 1948 UN Convention, we are confronted with the following problems: many past or historical genocides remain unrecognised as such by international criminal tribunals, the international 1  See e.g. A Conceptual Framework for Dealing with the Past published by swisspeace (2013), available at http://www.swisspeace.ch/fileadmin/user_upload/Media/Publications/Essent­ ials/Essential_3_2013.pdf (last accessed 30.05.2018). © koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_011

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community or the particular successor states;2 and, even recognised genocides are repeatedly being publicly denied. Such is not only the case with the Armenian genocide, but with many other genocides recognised by international criminal tribunals, such as the Bosnian or Rwandan genocide, and of course, the Holocaust.3 Active engagement in public genocide denial has not only become a political tool, but a source of social injustice itself. But except in the case of Holocaust denial, which has been widely recognised as an inherent expression of anti-Semitism and is thus considered as a hate crime, denial of other genocides has not yet emerged equally as an inherent expression of racism – either in legal practice or in public awareness. For example, each European Member State may decide for itself how far it restricts freedom of expression in favour of a general criminalisation of genocide denial.4 The focus of this paper is, however, not on the legal handling of genocide denial, i.e. the question of whether instances of genocide denial should also be criminally prosecuted. Rather, I will take a step back and explore what it means to speak of genocide denial as a source of social injustice, i.e. an instance of intergenerational injustice or inequity. Genocide denial is not just wrong because it prevents proper dealing with the past and the establishment of intergenerational justice; it is also intrinsically unethical because it constitutes what Miranda Fricker calls a ‘testimonial injustice’. A testimonial injustice takes place when members of a group are confronted with a credibility deficit that is owed to a prejudice towards their social, i.e. group identity.5 Besides the unethical motivation of an identity-prejudicial 2   See e.g. René Lemarchand, ed., Forgotten Genocides: Oblivion, Denial, and Memory (Philadelphia: University of Pennsylvania Press, 2011). The issue here is not whether a court might apply the law retroactively, but whether a certain past event or state of affairs can be described as either falling into the definition of genocide as provided by the convention, or into the more general underlying ethical meaning of the concept which possibly allows for a broader scope of its applicability to social groups besides national, ethnic, racial or religious groups – an objection often made against the UN definition. See e.g. Paul Boghossian, “The Concept of Genocide,” Journal of Genocide Research, 12(1–2) (2010): 74. Recently, Switzerland has amended their law on the crime of genocide to include social and political groups. See page 4965 of the decision from June 18, 2010, at https://www.admin.ch/opc/de/official-com pilation/2010/4963.pdf (German version only, last accessed 30.05.2018). 3  See e.g. Fatma M. Göçek, Denial of Violence: Ottoman Past, Turkish Present, and Collective Violence against the Armenians, 1789–2009 (Oxford: Oxford University Press, 2015); Eric Gordy, Guilt, Responsibility, and Denial: The Past at Stake in Post- Milošević Serbia (Pennsylvania: University of Pennsylvania Press, 2013). 4  See Ludovic Hennebel and Thomas Hochmann, eds., Genocide Denials and the Law (Oxford: Oxford University Press, 2011). 5  Miranda Fricker, Epistemic Injustice: Power & the Ethics of Knowing (Oxford: Oxford University Press, 2007), 17–29.

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stereotype, a testimonial injustice is intrinsically unethical because it undermines group members’ epistemic authority, which is a capacity that is crucial for personhood and responsible agency.6 The first section of this paper, thus, examines the distinct kind of wrong that genocide entails, so that it can legitimately be argued that the genocide ought to be kept in the cultural memory of the victim group. This will be the topic of the second section, where it shall become clear why genocide legitimately affects the lives of future generations. The third section will more specifically show how under these assumptions, genocide denial can pose an epistemic, i.e. testimonial injustice towards descendants. 2 Genocide: A Paradigmatic Case of Group Humiliation The central element of the crime of genocide as adopted in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide is the perpetrator’s intention to destroy, in whole or in part, a national, ethnical, racial or religious group.7 Making the four groups mentioned in the convention the objects of legal protection implies that individuals have a right, or a normatively legitimate reason, to be able to maintain their belonging to these groups. I will first try to clarify the value of belonging to such groups by reference to Avishai Margalit’s concept of ‘encompassing groups’, as well as humiliation as a cruelty that is conditional upon our belonging to morally legitimate encompassing groups. The concept of ‘encompassing groups’ is descriptive, insofar as it is simply a fact that human beings are born into groups with pervasive cultures, which equip them with something morally relevant, namely a fundamental identity.8 In general, the pervasive culture of an encompassing group determines the range of meaningful options and ways of life that are available for its members. This is why cultural membership basically presents different ways to be human, or express ourselves as human. The transmission of such cultural patterns usually happens automatically through successful intergenerational 6  On the importance of “epistemic competence” and “control” as conditions for our accountability and thus our capacity of being responsive to reasons, see e.g. Marina Oshana, The Importance of How We See Ourselves: Self-Identity and Responsible Agency (Lanham, MD: Lexington Books, Rowman & Littlefield Publishers, Inc., 2010), 119–30. 7  Treaty available at https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78I-1021-English.pdf (last accessed 30.05.2018). 8  Avishai Margalit and Joseph Raz, “National Self-Determination,” The Journal of Philosophy, Vol. 87, No. 9 (September 1990): 448.

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socialisation. Another important feature is that membership of such groups has a highly visible social profile, that is: [G]roups membership of which is one of the primary facts by which people are identified, and which form expectations as to what they are like […] These are groups, members of which are aware of their membership and typically regard it as an important clue in understanding who they are, in interpreting their actions and reactions, in understanding their tastes and their manner.9 According to Margalit, the fact that we belong to morally legitimate encompassing groups and the normative value thereof requires that such groups “be generally respected and not be made a subject of ridicule, hatred, discrimination, or persecution”.10 Thus, such belonging will at the same time render us vulnerable to humiliation. Humiliation as the rejection of belonging to morally legitimate encompassing groups is a rejection of the way in which someone legitimately expresses herself as human, and “rejection of human beings as human” constitutes humiliation.11 Due to the normative nature of the concept of humiliation, i.e. that it provides someone with objective normative reasons for considering oneself humiliated (rather than merely being dependent on one’s individual psychological constitution), two restrictions are made with regard to its application. Firstly, it only applies to cases of rejecting morally legitimate encompassing groups. The central criterion that distinguishes legitimate from illegitimate encompassing groups is that legitimate ones do not humiliate other people or 9  Margalit and Raz, “National Self-Determination,” 446. The idea of social groups, as well as stereotypes as “widely held associations between a given social group and one or more attributes” as described by Fricker (2007, 30) certainly open up a lot of problems especially with regard to prejudice or stigmatization. This reconstruction of Margalit’s perspective on social groups also neglects the fact that membership in them can sometimes be forcefully impressed by others, as for example in the case of “Indians” who were pressed into a culturally unified group. A label was put onto them which was not considered valuable and identity-constituting to them. This example presents a case of humiliation in relation to belonging to encompassing groups as well, but through the mechanism of a false assignment or improper labelling. So, while there is not necessarily anything morally problematic in stipulating that membership in social groups also carries with it normative value, there is indeed always the possibility of ethically problematic ways of dealing with such groups or stereotypes. I will get back to this when I discuss Fricker’s account of testimonial injustice and her notion of ‘identity power’ in the third section. 10  Margalit and Raz, “National Self-Determination,” 449. 11  Avishai Margalit, The Decent Society (Cambridge Massachusetts: Harvard University Press, 1996), 143.

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their own members (as for example groups such as the Mafia or the ‘Daesh’).12 A second restriction is that we are dealing with institutional humiliation. Only if the rejection characteristic of humiliation is institutionally supported would individuals have an objective normative reason to consider themselves humiliated. Margalit notes that, as a rule, rejection by social institutions is worse than individual rejection for two reasons: the rejection of an encompassing group by a social institution can be perceived as a rejection by the society as a whole, which is generally not the case with individual humiliation. Further, the element of threat to the victim is greater because such institutions are generally more powerful than the individual and thus can be more damaging.13 Margalit does not have any particular institution in mind, but considers social institutions in general, since it is intrinsic to them to have widespread influence. In order to understand the latter point, we need to examine the mechanisms of humiliation more closely. Margalit defines humiliation as a cruelty that is conditional upon the human capacity to suffer as a result of acts with symbolic meaning.14 The symbolic element lies in the perpetrator’s claim to existential superiority by rejecting the victim from the human commonwealth. The perpetrator does this by treating the victim as if he or she was an object, subhuman, or an animal. In order to show why humiliation is a cruelty that relates to our belonging to encompassing groups, Margalit introduces the common sense idea of self-respect. To respect oneself means to acknowledge one’s worth as a human being. Humiliation as a violation of self-respect makes it a cruelty that is only applicable to the human realm. While a certain situation can be perceived as humiliating, we do not have an objective normative reason to consider ourselves humiliated, for example, by natural catastrophes or by animals. But how is it possible that others can violate our self-respect if this is an attitude we ought to have towards ourselves? Margalit explains this through the idea of a loss of control. Self-control is the need to see one’s destiny in one’s own hands, 12  Ibid. 133. A “decent society”, according to Margalit, is not only one whose institutions do not humiliate people, but also one which does not allow for humiliation of them. After all, it is central to a decent society to generally guarantee the self-respect of its dependents. Thus, it is even the duty of a decent society to cause persons to feel ashamed of morally illegitimate aspects of their identity, or their belonging to illegitimate encompassing groups. 13  Ibid. 172. It is evident why the focus should be on institutions, since they aim at organizing stable patterns of human activity with respect to fundamental problems concerning the well-being of members of a society. They also try to ensure abidance to the norms and conventions that are important with respect to their specific function. 14  Ibid. 84.

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respectively to remain in control over one’s vital needs as a human being. To be humiliated then means that one’s humanity is subjected to the control of the ‘humiliator’. Since the ‘humiliator’ no longer sees his victim “under the descriptions of human psychology”,15 humiliation poses an existential threat to the victim. Therefore, it can be said that humiliation, or the symbolic rejection of humans from the human commonwealth is intrinsic to the cruelty of genocide, namely in the form of rejecting morally legitimate encompassing groups – or in other words: rejecting morally legitimate ways in which group members express themselves as human. Understanding one of the central elements of genocide in terms of such humiliation will help us understand why the victim group legitimately holds the injustice in its collective memory. 3

The Fate of Descendants: Collective Memory and Identity

Genocide is a crime directed particularly towards the kind of collectivities that we conceive as intergenerational, historical or cultural communities, usually characterised by overlapping generations. Before clarifying the particular role of genocide in the collective memory of such a group, it shall be noted that the line of argument pursued here does not depend on whether victims or perpetrators of the historical crime are still alive, or whether descendants can be considered in any way as indirect victims of the genocide itself. Such accounts, which focus on the way in which the genocide also violates intergenerational rights, have been put forward, for example, by Janna Thompson (2002) and Lukas Meyer (2005). They are especially important with regard to the legitimisation of reparative claims on behalf of descendants: since they were not the ones who suffered from the crime themselves, one would have to show that the crime against their forebears has also violated their rights or caused them unjustified harm.16 Thompson’s so-called ‘injustices to family lines’ account involves the idea that the suffering of descendants which is caused by past injustice should be considered as a further wrong done to them due to their status as descendants. Injustices to family lines are a category of wrongs best understood as “inflicting harm on the relationship between parents and children, or between kin and offspring – and thus on individuals as members of family lines”.17 Genocide is 15  Ibid. 100. 16  Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Justice (Massachusetts: Blackwell, 2002), 104. 17  Ibid. 134.

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a typical case of an injustice to family lines, since it aims exactly at destroying these meaningful intergenerational relationships and thereby the main possibility to pass on cultural heritage. The specific wrong done to descendants, then, consists in the violation of their right to have their familial and cultural heritage passed on. In the case of genocide denial, I think that we will encounter problems if we focus only on the way in which the initial genocide has violated any of the rights of particular descendants of genocide victims. This would suggest that descendants, who cannot be considered as indirect victims of genocide, would have no reason to be affected by its denial. However, on the condition that the victim group survives in some form or another, this will, in the aftermath, lead to another source of wrongful treatment of descendants qua belonging to the group: they now belong to a group where they will inherit knowledge of the genocide through the testimony of their ancestors, and this will become part of their collective memory. I will show how this condition makes them susceptible to testimonial injustice by genocide denial in the next section. First, it is necessary to explain why keeping an injustice such as genocide in the collective memory of the group is not only morally legitimate, but also of intrinsic moral value. There are different moral values that might be promoted by remembering wrongdoing in general. For example, it is often considered valuable insofar as it honours the victims. Related to this is also the claim that remembering the dead means to uphold a particular societal practice: if we can rely on being remembered by others after having died, we will rather be inclined to take up long-term projects that are lifetime-transcending.18 A further value that may be promoted in this regard is preventive in nature. Here, remembrance is considered as a cultural resource by which future generations may learn and hopefully not repeat the mistakes of their predecessors. However, such a consequential or instrumental view of the moral value of remembering wrongdoing is not my concern here, for it is rather an empirical question whether remembrance alone is a guarantee for non-recurrence – and I assume that it is difficult or even impossible to be empirically tested. Thus, for our purposes, it would be more appropriate to identify a non-consequentialist value, which means to examine how remembering genocide can be of intrinsic moral value.

18  Jeffrey M. Blustein, Forgiveness and Remembrance: Remembering Wrongdoing in Personal and Public Life (New York: Oxford University Press, 2014), 181–2. See also Janna Thompson, Intergenerational Justice: Rights and Responsibilities in an Intergenerational Polity (New York: Routledge, 2009), 42–54.

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In this sense, remembering can be understood as a symbolic activity, whereby moral attitudes such as respect or acknowledgment can be expressed. An attitude that is specifically rational or of intrinsic moral value is selfrespect.19 If we now speak of collective remembrance, which ought to re-assert the self-respect of the victim group, it seems that self-respect also operates on the collective level. In other words, the collective remembrance of genocide serves as a vehicle to express and re-assert the group’s self-respect since its legitimacy as a group was threatened. Remembering and acknowledging the genocide as an injustice helps to disqualify the perpetrator’s claim to existential superiority and helps the victims to gain back their sense of belonging to a legitimate group. The responsiveness to symbolic mistreatment, characteristic of humiliation, is also important when it comes to dealing with the aftermath of genocide. For example, artifacts such as memorials or museums serve the humiliated group to display its members’ attitude of self-respect in the public space in order to overcome the trauma or loss of control they underwent through humiliation. Of course, claims related to the self-respect of groups are always claims that are made collectively through individuals whose self-respect is bound up with belonging to the group. This is not to say that groups exist as ontologically distinct entities, but their existence depends on their individual members who constitute the group. On the condition that remembering genocide is intrinsically valuable for the victim group, the following chapter will examine why descendants are susceptible to becoming new victims by genocide denial, namely victims of epistemic injustice. 4 Genocide Denial as an Epistemic Injustice towards Descendants In the context of the Armenian genocide’s centennial and accordingly, its ongoing official denial by Turkey, it is sometimes questioned why there is or whether there should be such an insistence on the term ‘genocide’. The supposed problem related to the recognition of the Armenian genocide is thereby downplayed as a dispute about “proper labelling”. However, I have tried to show in the first chapter that the crime of genocide can indeed point to a distinct cruelty, for it is a paradigmatic case of humiliation as rejection of a specific morally legitimate encompassing group. Genocide thus involves a distinct kind of violation of self-respect that carries the symbolic message that 19  Ibid. 227–85.

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the specific, morally legitimate way in which the victim expresses him or herself as human, is rejected. Moreover, the cruelty characteristic of genocide did not just come into existence as a particular crime against humanity once it was legally codified as such, especially if we consider the UN Convention’s definition as a product of political consensus rather than full faithfulness to the ethical foundation of the cruelty. In that sense, even though the main goal was to establish a new legal crime, the term ‘genocide’ helps to render intelligible a specific experience of cruelty that might not have been possible before. Related to this is, then, another more general reason why insistence on the term ‘genocide’ is normatively important: being able to properly name their experiences is of crucial importance to victims of injustices, particularly in order to make their experiences intelligible to others as well as themselves.20 Miranda Fricker has pointed out that being unable to properly name and ren­ der communicatively intelligible one’s experiences to others – if, for example, a certain shared concept or understanding of cruelty or crime has not yet been established within a community – will create a dissonance between the response and behaviour of others towards yourself and what would be appropriate given your own intimated sense of the experience.21 In other words, other people will not understand, and will misinterpret you, which will lead to psycho­logical stress, for it might eventually prevent you from ‘becoming who you are’. Fricker calls this kind of epistemic injustice, ‘hermeneutical injustice’, where a subject is unfairly disadvantaged in terms of the very construction of selfhood.22 It is owed to this condition that any deviation from the term of ‘genocide’ or withheld admittance of a genocidal intent, will not do, and coining the events as ‘genocide’ is necessary to properly assess the responsibility of the perpetrators or the measures that ought to be taken to deal with the aftermath. Another type of epistemic injustice towards descendants evoked by genocide denial is testimonial injustice. According to Fricker, a testimonial injustice is in place when a claimant of knowledge is not accorded the credibility he or she deserves, where such credibility deficit is motivated by a prejudice towards the social identity of the knower. The crucial idea behind testimonial injustice 20  On the importance of being intelligible to ourselves, or making our psychological life intelligible, for our personhood, see also Marya Schechtman, “Personal Identity and the Past,” Philosophy, Psychiatry, & Philosophy, Vol. 12, No. 1 (March 2005): 18–21. 21  An example mentioned by Fricker (2007, 1) in this context is where a person suffers sexual harassment in a culture that still lacks that critical concept. She calls this an instance of “hermeneutical injustice“ that is “caused by structural prejudice in the economy of collective hermeneutical resources”. 22  Miranda Fricker, Epistemic Injustice, 168.

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is that sometimes, someone’s word is rejected, not for good reason, but out of mere prejudice. In the case of testimonial injustice, it is an identity-prejudicial stereotype that wrongs someone in his or her capacity as a giver of knowledge and thus in a capacity that is central for our exercise of reason.23 The notions of social identity or stereotype involve the existence of what Fricker calls ‘identity power’: in general, identity power suggests that a specific identity carries with it specific expectations or assumptions about how a person is to be treated. Identity power is thus an “integral part of the mechanisms of testimonial exchange, because of the need for hearers to use social stereotypes as heuristics in their spontaneous assessments of their interlocutor’s credibility. This use of stereotypes may be entirely proper, or it may be misleading, depending on the stereotype”.24 Fricker does not condemn stereotypes per se, but only when a stereotype becomes a misleading, identity-prejudicial stereotype that is marked by resistance to counter-evidence on the part of its holder.25 This means that no matter how much evidence is provided to ground the testifier’s claims to knowledge – in our case, the particular documented events amounting to their assessment as genocide – the evidence is not considered as valid. The prejudicial credibility deficit involved in testimonial injustice is different from cases of non-culpable denial, where “credibility deficit might simply result from innocent error”.26 What distinguishes the two is that in the case of an innocent error, the hearer would be ready to revise his initial credibility deficit towards the testifier in the face of evidence. But if a prejudice is at play, the hearer will assess the testimony of a person in a way that illegitimately misinterprets the evidence at hand, thereby revealing the prejudice. A very common strategy with regard to genocide denial is to engage in some kind of conspiracy theory that shatters the reliability of the evidence by their reinterpretation.27

23  Fricker considers giving knowledge, and being a “good informant”, as essential human capacities, namely in that they are one side of our overall capacity for reason – a capacity that lends humans their distinct value. 24  Ibid. 16–7. 25  Ibid. 35. 26  Ibid. 21. 27  For example, the Armenian genocide is sometimes described as the result of ArmenianAmerican led propaganda against Turkey, as in the following article by Tal Buenos published in the online newspaper Daily Sabah (September 16, 2015): http://www.daily sabah.com/op-ed/2015/09/16/amal-and-the-armenians-the-power-to-attract. In his book The Great War and the Forced Migration of Armenians (Belfast: Athol Books, 2011), Kemal Çiçek even describes the Armenian genocide as an instance of war propaganda established during the First World War on behalf of Great Britain in order to weaken support for the Ottoman Empire.

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The kind of victimisation incurred by descendants as a result of genocide denial can in fact be considered as twofold. Besides being a epistemic injustice and thus intrinsically unethical, especially with regard to a crime like genocide, its denial is also an attack on the very need for the victim group to restore its legitimacy and thereby restore the secure sense of legitimate belonging. This is even worse when the strategy involved in genocide denial is one of turning around the role of the victim and the perpetrator. Such a strategy tries to demon­ ise the victim group in order to qualify it as morally illegitimate, which not only prevents its members from restoring the humiliation suffered as a result of the genocide itself, but also feeds the idea that it is an illegitimate group in the first place. This is why genocide denial can be considered as a repetition of the same mind-set that motivated the genocide itself, and why it becomes especially problematic when it is supported by governmental institutions. It then systematically perpetuates the prejudice against the victim group. In addition, continuation of the denial also prevents other members of society from “making choices for themselves according to the most adequate information available, unable to act as they would have wanted to act had they known all along”.28 Thus, genocide denial also becomes a general issue of polit­ ical legitimacy, that is, of the justification of the practical authority of political institutions. In the end, the consequence of a testimonial injustice is the gen­ eral loss of knowledge and perpetuation of ignorance that disadvantages everyone. 5 Conclusion The aim of this paper was to explore how denial of past genocide can be considered as an intrinsic injustice towards descendants. By identifying the crime of genocide as a paradigmatic case of humiliation as rejection of a morally legitimate encompassing group, it is argued that retaining the injustice in the cultural memory of the group is intrinsically valuable: it helps to disqualify the perpetrator’s claim to existential superiority which was symbolically conveyed – but also physically implemented – through the genocide and thus helps the group to reassert its legitimacy and self-respect. As members who belong to the group, descendants then become susceptible to a new kind of injustice by genocide denial: they are confronted with a testimonial injustice, whereby they are harmed in their very capacity of reason, i.e. as givers of knowledge. Our capacity to create and share knowledge is understood as a 28  Sissela Bok, Lying: Moral Choice in Public and Private Life (New York: Vintage Books, 1999), 20.

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social practice in which others have the power to reject our claims to knowledge by not according us due credibility, thus undermining our epistemic authority. The credibility deficit becomes ethically problematic if motivated by an identity prejudice that is marked by resistance to counter-evidence on the part of its holder. Identifying genocide denial as a testimonial injustice helps to uncover what is intrinsically unethical about it. Furthermore, genocide denial prevents all measures necessary for the so-called “healing process”–including proper remembrance, reparation, reconciliation and eventually, the guarantee of nonrecurrence. However, the aim of this paper is not to show what needs to be done in order to achieve intergenerational equity with regard to dealing with past genocides. By focusing on and explaining the intrinsic ethical wrong of genocide denial as an example of intergenerational injustice, we may even get a better glimpse of the right to genocide recognition and its relation to prevention of further crimes than the other way around. Acknowledgements The author’s project is funded by the Swiss National Science Foundation, SNSF Doc.CH.

Chapter 10

Intergenerational Justice and International Migration: Some Insights from Law and Economics Philip C. Hanke 1 Introduction The decision to migrate, be it within a country or internationally, as well as the legal regime applying to such movement, can affect the relationship among generations. Intergenerational relations, in this context, can be seen as existing not only among currently living generations, but also between the current and future generations.1 International and internal migration plays a role in both cases. At the micro level, the decision to migrate can be part of – but also the rupture from – an agreement between parents and children. On a larger scale, migration can affect the unwritten intergenerational contract present in pension and care systems. As a phenomenon inherently linked to economic growth and development, but also to political processes, it also plays a role in the lives that future generations will live. It can be argued that migrants’ decisions to leave a famine or war-ridden place in order to seek new opportunities elsewhere affect the livelihood of unborn generations. Migration has a substantial effect on a society’s demographics, and thus also affects distribution among generations. It is often emphasised that migration rejuvenates the overall population at least in the short run (although migrants themselves will get old over time). With the advent of new forms of migration, sometimes referred to as mobility in order to stress the more temporary and dynamic nature of these patterns, it is interesting to discuss how the legal migration regimes in place at different levels, i.e. nationally, bilaterally, regionally, and multilaterally, affect transfers between generations. For instance, migration agreements promoting circular migration will lead to increased migration of the young, who in turn will return to their home countries when they are older. Their experiences abroad, notably their employment or other work, will affect the livelihood of their offspring and other members 1  The acts of joining and leaving a generation are continuous processes, and generations thus not clearly distinct groups. In that sense, the term ‘generation’ is fuzzy and its usage is inherently a simplification.

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_012

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of future generations. Facilitating remittance payments by migrants facilitates transfers from the young (who are relatively richer as they presumably migrated to a higher-income country) to the older generations in the country of origin (who are poorer as they live in a low-income country, relatively speaking). Furthermore, some international arrangements (e.g. in the EU) regulate how migrants are embedded in social welfare and pension insurance schemes. Much has been said on the intergenerational transfers through welfare systems. However, migrants are limited in their access to such benefits, leading to questions of justice. These various agreements and institutional arrangements thus have an effect on the demographics and economics of the host country and the country of origin, with complex distributions taking place. This chapter discusses economic redistribution among generations causing and caused by current legal migration regimes from an intergenerational justice perspective. Do decisions to migrate or legal restrictions on the movement of people create injustice towards future generations? What is the effect of changing migration patterns on intergenerational redistribution? How do instruments of international migration governance affect this redistribution? How can the special rules for migrants on access to welfare systems be seen from an intergenerational justice perspective? How does social chance through migration affect the relationships between generations? Should specific measures in the field of international migration governance be taken to address questions of intergenerational justice? The chapter provides a broad overview of the economics and politics of migration, discussing migration and intergenerational justice in the context of demographical change and looking at circular and return migration, as well as short-term mobility. It also analyses the role of a specific factor, namely migrants’ remittance payments to the countries of origin and the role of age in adjusting to social and economic chance caused by migration. 2

Theories of Intergenerational Justice

In discussing the question of migration and its generational effects, we can draw from a variety of theories of justice. Four commonly used theoretical frameworks can be applied to the question of international migration. 2.1 Reciprocity The main idea of reciprocity as a theory of justice is that people are under an obligation to return what they received themselves, or – in the case of

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intergenerational justice – to pass it on to the next generation.2 Being able to legally migrate in order to seek a better life is a right that is not enjoyed by everybody on the planet. A large variety of legal instruments, such as national immigration laws, bilateral migration agreements, or regional arrangements (like the freedom of movement within the European Union) either enable or prevent migration. This, of course, poses a fundamental question of intragenerational justice, which is outside the scope of this essay. If intergenerational justice is concerned with ensuring that future generations enjoy at least the same rights as the currently living ones, then – broadly speaking – developments leading towards new restrictions on migration are inherently problematic. However, this statement only holds if such restrictions do not remedy an already existing intergenerational injustice. It is therefore necessary to take a closer look at the specific processes and their effects. 2.2 The Appropriation of Land and Resources Virtually all of the world’s land and resources are somehow allocated either to individuals or to political entities. A libertarian interpretation of justice might argue in favor of a “first come, first served” rule.3 In the case of migration, this would mean saying that a particular group of people constituting a country has a right to full ownership of the geographic area because their ancestors were the first to lay claim to it. Locke, as the main proponent of a justice theory of property, advocated in favour of private property (that is, the right to exclude others from land) as long as “there is enough, and as good, left in common for others”.4 From an intergenerational justice point of view it is then important to ensure that each successive generation has the same access to land as the previous one. Free migration can then be seen as the way for these successive generations to appropriate their fair share of land (in the widest sense, and also including access to the polity). 2.3 The Egalitarian View What migration policy would people choose if they were to decide behind a Rawlsian veil of ignorance? Not knowing whether they would be born into a rich or a poor country, it is reasonable to assume that people would choose a 2  See Axel Gosseries, “Theories of Intergenerational Justice: A Synopsis,” S.A.P.I.EN.S. Surveys and Perspectives Integrating Environment and Society 1, no. 1 (2008): 61–71 for an overview. 3  Ibid. 4  John Locke, Second Treatise Of Government (www.gutenberg.org: Project Gutenberg, 1689), Chapter V, Sec. 33, https://www.gutenberg.org/files/7370/7370-h/7370-h.htm.

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liberal migration regime. With such a rule, people could compensate for being born in a setting with a low quality of life by migrating to a different place. In a rich country, the disadvantages to locals from immigration are presumably fewer than the benefits to foreigners emigrating from poor countries. It is then, prima facie, also reasonable to assume that this result holds true if the ignorance not only applies to the place of birth (and thus the income), but also to the time of birth, i.e. the generation. A rule that grants migration rights to one generation but not to the subsequent ones is not likely to withstand the veil of ignorance test.5 2.4 The Utilitarian Perspective Utilitarianism considers not only the welfare of individuals, but intends the maximisation of aggregate welfare. It is thus not concerned with the distribution of welfare in a society, but only with total welfare.6 This relationship can be expressed in a simple formula: total welfare = number of people multiplied by their individual utility. With this perspective, the following result holds: if migration leads to a more efficient allocation of resources, then it can be argued that not only should future generations have the right to migrate, but the present generations have an obligation to migrate in order to provide a better standard of living to future generations. However, with the utilitarian perspective comes the problem that certain policies can lead to future generations being fewer than without these policies. Thus, these generations are considered inferior even though the living are just as well-off as before. An outcome that would drastically increase the number of living people while reducing their utility to a level barely above zero would be considered superior if the increase in population is sufficiently large. An alternative measure would be to look at average utility.7 Migration changes the number of individuals in a society: if a person voluntarily migrates from one country to another, their utility presumably increases (else they would not do it), and presumably the inhabitants of the receiving country benefit as well (although maybe to a lesser extent than the migrant). Total welfare thus has increased, but it is conceivable that the increase in total welfare is offset by the increase in population. Average welfare might thus have declined, leading to an inferior outcome according to this criterion. It is thus important to keep 5  John Rawls, A Theory of Justice (Harvard University Press, 2009). 6  See e.g. the debate in J.J.C. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge University Press, 1973). 7  Joanna Pasek, “Obligations to Future Generations: A Philosophical Note,” World Development 20, no. 4 (1992): 513–21.

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in mind which society’s welfare is to be maximised. Taking the global society as a benchmark, even with average utilitarianism, the described migration scenario would have a positive net effect if welfare in the sending country is offset by the gains of the receiving country and the migrant. As demonstrated below, there is ample evidence that the effect on the sending country is likely to be positive as well. An intergenerational issue that remains unresolved is how to deal with the fact that, because of migration, some people might never be born. If migration leads to higher welfare and higher welfare leads to a lower birthrate, then migration decreases population growth.8 A view that solely operates on the premise that life is always better than not existing at all would thus be opposed to migration (and economic growth in general). However, it is – as Palfrit called it – a “Repugnant Conclusion”9 to think that a scenario with a higher number of people who “would have lives that are barely worth living” is a preferable one. 3

Some Economics of Migration

Decentralised Government: a Pre-Requisite for a Functioning “Exit” Mechanism With the possibility of migrating, governance in any given place cannot be seen in an insulated way. Through the movement of people across countries, these countries build a system of decentralised government in which people can choose their preferred bundle of taxes and public goods. If movement of people is unrestricted, then there are long-term effects on the governance of countries. People who are dissatisfied with the performance of their local polity have two options: they can complain and make their discontent heard (the “voice” mechanism), or they can relocate (“exit”) to a different, better place.10 In both cases, so the theory goes, policy-makers are pressured to improve their performance. For instance, the emigration of highly skilled and trained individuals from European countries towards the United States or the United Kingdom is often cited in proposals for reform. “Exit” as an instrument for improvement of political systems only works if there are two types of 3.1

8  However, it has to be kept in mind that the act of migration not only changes an individual’s income situation, but also the availability of public goods such as childcare and child support payments, which could affect the decision on the number of children. 9  Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984). 10  Alfred O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press, Cambridge, MA, 1970).

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individuals: the “alert” and the “inert”. The “alert” are those who go to seek better opportunities while the inert are those whose reaction time is slower. They are essential for the recuperation process to take place: if everybody were to leave immediately in discontent, then there would be nobody left to demand change. This distinction between groups willing to migrate or to stay carries a certain intergenerational component. It is rather the young who are likely to emigrate. At the same time, this combined reaction to institutional degradation, that is, decreases in the quality of government, can be seen as a joint investment for future generations. While Hirschman first conceived these two forces (“exit” and “voice”) as a hydraulic model, in which one force possibly undermined the other (if people leave, then they do not raise their voice), his later works emphasised their complementarity. For instance, in East Germany the mass exodus of people (and expulsion of dissidents) was closely linked to the mass protests on the streets.11 For “exit” and “voice” to function, it is thus necessary to have a legal regime in place that allows for easy exit and entry as well as voicing discontent both in the sending country, but also in the receiving country.12 One way of ensuring the “voice” option to migrants is to grant them voting rights – a right they usually do not have until they have acquired citizenship after a prolonged period of residence (which in the case of people who migrate to different countries in short intervals might mean that they never get it at all). The possibility of migration can in some ways protect generations from the “selfishness” of others. For instance, if 51% of the oldest people of a country decide to levy a tax on the younger generation (e.g. in the form of social security contributions) or reduce spending on public goods that younger people enjoy (e.g. education), and redistribute this tax money to the older generation, then migration (or “exit” in Hirschman’s13 words) is a way to escape this redistribution. On the other hand, as the fiscal federalism literature starting with Tiebout14 argues, redistribution in such a setting is not possible at all, precisely because of the possibility of moving to a place that does not enact such redistributional measures. This creates the opposite problem: organising a pension system with 11  Albert O. Hirschman, “Exit, Voice, and the Fate of the German Democratic Republic: An Essay in Conceptual History,” World Politics 45, no. 02 (January 1993): 173–202. 12  Philip Hanke and Klaus Heine, “Migration and Systems Competition: A Constitutional Economics Perspective,” University of St Thomas Law Journal 12, no. 1 (Fall 2015): 56–76. 13  Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States. 14  Charles M. Tiebout, “A Pure Theory of Local Expenditures,” The Journal of Political Economy 64, no. 5 (1956): 416–24.

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elements of solidarity is – in this theoretical conceptualisation – impossible. However, historically, many redistribution schemes (e.g. unemployment insurance in the U.S.) were nevertheless set up at the local level.15 Labour migration can alter the dynamics in public investment if such decisions are made at a local level. In a model where the old bear the costs of education and infrastructure investments, and tax the young (e.g. with a social security tax) to recoup these investments, labour migration may reduce the returns on investment in education that the older generation can collect as the young move to another place, thus not benefiting those who made the investment in education. As a result, if emigration is expected, then investment in education is reduced. At the same time, infrastructure investment is increased (since these investments will remain instead of moving somewhere else, and can act as a magnet for productive young people), thus counteracting the existing bias against it (in models of decentralised government, tax competition often leads to underinvestiment in infrastructure).16 3.2 Welfare Systems The role of welfare systems in attracting of migrants is a hotly debated issue.17 Even though there is little empirical evidence suggesting that migration into welfare systems is worth taking into consideration, the issue of how a migration regime prevents this kind of migration is an issue worthy of discussion. The common policy conclusion is to establish restrictions on migration. Yet, such restrictions prevent inefficient migration into welfare systems, but also efficiency-enhancing migration. It would thus make more sense to allow migration and restrict access to welfare benefits.18 And indeed, such a system is currently in place with regard to migration within the European Union. EU 15  Wallace E. Oates, “An Essay on Fiscal Federalism,” Journal of Economic Literature 37, no. 3 (1999): 1120–49. 16  Kai A. Konrad, “Fiscal Federalism and Intergenerational Redistribution,” FinanzArchiv / Public Finance Analysis 52, no. 2 (1995): 166–81. 17   See e.g. George J. Borjas, “Immigration and Welfare Magnets,” Journal of Labor Economics 17, no. 4 (October 1999): 607–37; Jørgen Drud Hansen, “Immigration and Income Redistribution in Welfare States,” European Journal of Political Economy 19, no. 4 (November 2003): 735–46; Assaf Razin, “Migration into the Welfare State: Tax and Migration Competition,” International Tax and Public Finance 20, no. 4 (August 1, 2013): 548–63; Corrado Giulietti and Jackline Wahba, “Welfare Migration,” in International Handbook on the Economics of Migration, ed. Amelie Constant and Zimmermann, Klaus F. (Cheltenham: Edward Elgar Publishing, 2014), 489–504 for discussions of migration into welfare systems. 18  Hans-Werner Sinn and Wolfgang Ochel, “Social Union, Convergence and Migration,” JCMS: Journal of Common Market Studies 41, no. 5 (2003): 869–96.

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citizens enjoy the fundamental right of free movement, but their access to welfare in their host country is limited. Although, under Article 4 of EU Regulation No. 883/2004 on the coordination of social security systems, EU citizens migrating to another EU Member State are entitled to equal treatment with regard to welfare benefits, recent court rulings have made it clear that there are limitations. In Dano v. Jobcenter Leipzig (C333/13), the European Court of Justice (ECJ) ruled that Member States can deny special non-contributory cash benefits to immigrants who are not economically active. With such regulations in place already, migrants in most countries enjoy only very limited access to welfare systems, at least at the beginning of their stay. While irregular migrants have no access to welfare benefits and only contribute little to the system, legal migrants contribute fully to unemployment and pension insurances, and to public goods that are funded through income taxes. It is only through the generations that the protection improves, also with regard to the right to residence in the country. While usually countries do not revoke the residence permits of second-generation immigrants, living in Switzerland in the third generation might sometimes not be enough to enjoy the same legal rights as natives. In a recent Swiss case, a court ruled that an Italian with a criminal record living in Switzerland in the third generation could have his residence permit revoked (Swiss Federal Court, case 2C 6/2015 of 30 June 2015). First-generation migrants often find themselves not benefitting from public goods and services, such as schooling or higher education – and are included into the system only once they have children of their own. They are thus – at least temporarily – excluded from the intergenerational contract manifested in the system of public welfare and taxation. If welfare systems are designed to ensure intergenerational justice, then the question as to how migrants are integrated into these systems is paramount. 4 Demographics Many times, the starting point for discussions surrounding migration is demographics. Migration is often presented as the solution for the pension gap, that is, the fundamental problem that the number of pension-receivers is ever increasing (because of increases in life expectancy), while the number of contributors to the system is decreasing (because of decreasing fertility rates in recent decades). In a seminal theoretical paper, Razin and Sadka19 argue that 19  Assaf Razin and Efraim Sadka, “Migration and Pension with International Capital Mobility,” Journal of Public Economics 74, no. 1 (October 1999): 141–50.

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even though low-skilled migrants might have a negative net effect on the welfare state, their migration is beneficial to all income and all age groups. For instance, the Swiss AHV pension system is designed with a 2 per cent annual growth rate of contributions in mind. While one percentage point can be achieved through productivity increases of the active labour force,20 the other percentage point requires immigration. This design has a shortcoming though: immigrants also age. Thus, if the pension system is not sustainable without migration, it is questionable whether migration is more than a quick fix and does not simply defer the pension gap to a later generation. The reforms can be parametric (that is, increasing pension contributions and/or decreasing benefits) or demographic. Altering the parameters of the pension system means that the young have to pay more and/or the old receive less. Demographic reform, with the aim of preventing either of these, requires a migration system that allows for continuous immigration. Sudden imposition of barriers to entry – as they have been repeatedly discussed in Switzerland and are currently in the process of being legislated – will have adverse effects on the generational contract that the pension system constitutes.21 Several studies claim that the required levels of immigration are substantially higher than the current ones.22 Does the pension system, in its reliance on immigration and future generations, constitute an intergenerational injustice? It could be argued that the current generation borrows from future generations, but it could be argued just as well that, thanks to disruptive technological change, future generations might be in an inherently better position to resolve the problems of the system.

20  See e.g. Stefan Moog, Veronica Weisser, and Bernd Raffelhüschen, “Altersvorsorge und die Schweizer Generationenbilanz – Lasten in die Zukunft verschoben,” Study (UBS AG, Zurich, 2014). 21  See e.g. the considerations regarding a “last” generation in Assaf Razin and Efraim Sadka, “Unskilled Migration: A Burden or a Boon for the Welfare State?,” Scandinavian Journal of Economics 102, no. 3 (September 1, 2000): 463–79. 22  See e.g. Silke Übelmesser, Unfunded Pension Systems: Ageing and Migration, Contributions to Economic Analysis 264 (Amsterdam: Elsevier, 2004); David Blake and Les Mayhew, “On The Sustainability of the UK State Pension System in the Light of Population Ageing and Declining Fertility,” The Economic Journal 116, no. 512 (June 1, 2006): F286–305; Felipe Serrano, Begoña Eguía, and Jesús Ferreiro, “Public Pensions’ Sustainability and Population Ageing: Is Immigration the Solution?,” International Labour Review 150, no. 1–2 (June 1, 2011): 63–79.

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Circular Migration, Short-term Mobility

Migration is not always a linear path from a country of birth to a new country of permanent residence (as was, for instance, the migration of Europeans to the U.S. in the 19th century). Two phenomena are important in this context. First, job mobility can lead to repeated migration during a person’s professional career, eventually back to their country of origin. For instance, a Mexican worker who gained experience in the U.S. will see, on return to Mexico, his wage increase by twice the amount than if he or she had acquired this work experience in Mexico.23 Similar results can be found for other countries.24 Secondly, and very closely related, upon reaching the retirement age, people might want to return to their home countries. Depending on the pension system in place in their country of origin and in the country where they built up their retirement entitlements, the intergenerational redistribution of the pension system is affected by this return migration. Assuming that retirees can take their entitlements with them, the burden of the pension system is shifted. Since relatively well-off retirees enter the low-income country of origin, the tax burden for the young people in this country is reduced, as the purchasing power of the general population is increased. On the other hand, the fiscal balance of migrants on their temporary host country is worsened: as they leave this country, they pay their income and consumption taxes somewhere else. The younger generation in the former residence thus faces a higher tax burden. In addition, migrants returning to their country of origin or moving on to another country might take their children with them. This has a negative effect on the pension system of the country in which they lived, as the future contributors are being taken out of the system. This has been formalised, for example, by Krieger25 who draws a median voter model taking into account return migration and wage effects on unskilled workers. The result is that, the higher the burden the young generation has to bear (depending on how likely it is that return migrants take their children with them), the more likely it is to support anti-immigration policies.

23  Steffen Reinhold and Kevin Thom, “Temporary Migration and Skill Upgrading: Evidence from Mexican Migrants” (Mannheim Research Institute for the Economics of Aging, 182– 2009, Mannheim, 2009). 24  For an overview, see Christian Dustmann, Itzhak Fadlon, and Yoram Weiss, “Return Migration, Human Capital Accumulation and the Brain Drain,” Journal of Development Economics, Symposium on Globalization and Brain Drain, 95, no. 1 (May 2011): 58–67. 25  Tim Krieger, “Public Pensions and Return Migration,” Public Choice 134, no. 3–4 (August 8, 2007): 163–78.

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Circular or return migration not only entails the transfer of financial capital, but also of human capital. Return migration can be an important factor in the dissemination of new technologies and knowledge in general – “brain gain” being the opposite concept to the often lamented “brain drain”. In the decades after the Second World War, economic literature on migration was highly concerned about less developed countries losing their best trained people to the more developed countries, thus wasting poorer economies’ spending on education and training.26 An important contribution to this view was, for instance, the proposal of Bhagwati27 to tax emigrants, and thereby compensate developing countries for their losses. Subsequent research, however, emphasised the possible gains in human capital, even in the case of migration from relatively poor to rich countries:28 it has been shown that skilled emigration fosters human capital accumulation in low-income countries.29 Not only do return migrants bring back human capital, but the possibility of future migration can also act as an incentive to invest in one’s own human capital.30 As such, return migrants become the teachers of new generations by bringing acquired knowledge to their country of origin. At the same time, they also serve as inspiration of sorts for younger generations but also society in general to invest in schooling and education. From a policy point-of-view, it is therefore important to promote both immigration and emigration, which is nowadays discussed under the umbrella of “ethical recruitment”.31 Modern migration governance includes certain aspects relevant to circular migration. European guest worker agreements in the 1960s and 70s, for example, had the intention of bringing in required labour for a determined 26  See e.g. Herbert B. Grubel and Anthony D. Scott, “The International Flow of Human Capital,” The American Economic Review 56, no. 1/2 (March 1, 1966): 268–74 as proponents of the brain drain hypothesis. 27  Jagdish N. Bhagwati, “Taxing the Brain Drain,” Challenge 19, no. 3 (July 1, 1976): 34–38. 28  See e.g. Oded Stark, Christian Helmenstein, and Alexia Prskawetz, “A Brain Gain with a Brain Drain,” Economics Letters 55, no. 2 (1997): 227–34 for a first theoretical model of brain gain. 29  See e.g. Michel Beine, Fréderic Docquier, and Hillel Rapoport, “Brain Drain and Human Capital Formation in Developing Countries: Winners and Losers,” The Economic Journal 118, no. 528 (April 1, 2008): 631–52; Michel Beine, Frédéric Docquier, and Cecily OdenDefoort, “A Panel Data Analysis of the Brain Gain,” World Development 39, no. 4 (April 2011): 523–32. 30  See e.g. Catia Batista, Aitor Lacuesta, and Pedro C. Vicente, “Testing the ‘Brain Gain’ Hypothesis: Micro Evidence from Cape Verde,” Journal of Development Economics 97, no. 1 (January 2012): 32–45 for a caste study on educational attainment in Cape Verde. 31  See e.g. Mark L. Scott et al., “‘Brain Drain’ or Ethical Recruitment?,” Medical Journal of Australia 180, no. 4 (2004), https://www.mja.com.au/journal/2004/180/4/brain-drainor-ethical-recruitment.

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duration (mainly from Southern Europe to Northern and Central Europe). These plans often contrasted with the original plans and subsequent wishes of the migrants themselves. While guest workers often left with the intention to save up money during their time in their country of destination and then return to their country of origin, these plans changed once they founded families in their host countries: it was then preferred to spend retirement close to the children and grandchildren. Modern international migration law increasingly contains provisions regarding short-term migrants. For instance, recent bilateral free-trade agreements and other regional trade agreements (such as NAFTA or MERCOSUR), in line with the WTO’s General Agreement on Trade in Services (GATS), facilitate the movement of so-called cross-border service providers. These agreements favour the highly skilled, while bilateral migration agreements, which sometimes complement trade agreements, are more geared towards the low-skilled.32 These arrangements institutionalise short- or medium-term migration, and thus ensure migrants’ ties to their country of origin. Therefore, they also illustrate the conflict between intergenerational solidarity on one side, and the right to individual fulfillment and life plans on the other. 6

Remittances and Those Left Behind

Remittances play an important role in the financial flows caused by migration. Every year, international migrants send around $583 billion to relatives left behind in the country of origin. Of this amount, $436 billion go to developing countries, with India receiving an estimated total of $70 billion and China $64 billion.33 In comparison, the total amount of development aid of the EU and the U.S. in 2013 amounted to $71 billion and $32 billion, respectively. These numbers on remittance payments are highly volatile, as they respond to the business cycles in different places as well as to developments in exchange rates. This stream of income poses some distributional issues. Families that were able to send one or more of their members to a higher-income country and then receive remittances will be in an inherently better position than those 32  Marion Panizzon, “International Law of Economic Migration: A Ménage à Trois? GATS Mode 4, EPAs, and Bilateral Migration Agreements,” Journal of World Trade 44, no. 6 (December 1, 2010): 1207–52. 33  World Bank, “Remittances Growth to Slow Sharply in 2015, as Europe and Russia Stay Weak; Pick up Expected next Year,” Press Release, (April 13, 2015), http://www.worldbank. org/en/news/press-release/2015/04/13/remittances-growth-to-slow-sharply-in-2015-aseurope-and-russia-stay-weak-pick-up-expected-next-year (last accessed 29.03.2018).

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who were not. Migration is primarily a middle-class phenomenon. While the upper-class has little incentive to “try their luck” in a different place – where they may not be treated as well – the lower-class does not have the financial means to migrate (which also includes acquiring the skill sets and language skills needed). The system of remittances is also not neutral with respect to intergenerational redistribution, or between the sexes, for that matter. The recipients of remittances are a diverse group. They can be parents who get support from their children abroad for their retirement. They can be siblings who get help for their education (and potential subsequent move abroad). But they can also be a spouse or children left behind who receive remittances from a family member who temporarily went abroad on his or her own in order to support the family. The relationship between children sending remittances and their parents has been theorised as an intergenerational contract that benefits both sides: remittances are sent in the expectation of a subsequent inheritance, while the larger inheritable resources are then used by the parents to elicit care from their children.34 Remittances are an important factor establishing support, in the countries of origin, for migration. Without remittances and return migration, the argument that the possibility of migration from low income to high income countries causes “brain drain” would be a strong one. The brain drain argument is concerned with the loss of a young generation to high income countries who do not bear the costs of training and educating people. A duty to remit could thus constitute an institutionalised mechanism to compensate for the previous generation’s investment in the migrant’s education, but poses problems from a perspective of individual rights (and some very practical questions, such as who should receive such remittances). Such a measure was discussed, albeit under a different terminology, after Bhagwati’s tax proposal.35 While remittances are an important instrument to distribute the benefits from migration, it is also worthwhile to give some thought to those left behind in precarious conditions. The absence of younger generations can have negative impacts on aging parents and other vulnerable household members. Migration can mean an opportunity to an entire family, but it can also mean abandonment of those in need. The plan to send home generous remittances might not always work out – often enough migrants end up in precarious 34  See John Hoddinott, “Rotten Kids or Manipulative Parents: Are Children Old Age Security in Western Kenya?,” Economic Development and Cultural Change 40, no. 3 (1992): pp. 545– 65 for a case study on Western Kenya. 35  Bhagwati, “Taxing the Brain Drain.”

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situations of employment or unemployment. On a side note, intergenerational contracts between parents and children can experience a significant, negative rupture once the child decides to migrate.36 7

Adaptation to Change

Finally, some considerations from behavioral economics are worth mentioning. This stream of literature incorporates insights from cognitive and social psychology into the study of economic agents’ decisions. One important concept therein is the so-called ‘status quo bias’, which reflects a general preference in favour of the current state of affairs. People exhibiting this kind of bias consider any deviation of the status quo to be a loss.37 The status quo bias is relevant to the connection between migration and intergenerational redistribution in two ways. First, migration – almost by definition – is a deviation from the status quo. It requires flexibility of everybody involved. Depending on the specifics, the magnitude of the adjustments in the labour market and the economy as a whole varies. For instance, Baas et al.38 find that migration from the new EU Member States (EU8) to the EU15 countries entailed a short-term increase in GDP of the entire area of about 0.2% and wage decline of 0.1% in the EU15, with unemployment rates rising by 0.1 percentage points. At the same time, wages in the EU8 increased by 0.3% and unemployment rates declined by 0.4 percentage points. In the long run, the effects are found to be neutral with regard to wages and unemployment. Although it seems that East-to-West migration after EU enlargement had no aggregate effects, there are nevertheless moderate distributional effects on specific groups in the labour force. Less-skilled workers in the countries of destination lose relatively more, while high-skilled workers tend to benefit. The opposite is true for the countries of origin. Older members 36  See Ann Whitehead, Iman M. Hashim, and Vegard Iversen, “Child Migration, Child Agency and Inter-Generational Relations in Africa and South Asia,” Working Paper (Development Research Centre on Migration, Globalisation and Poverty, 2007) on child migration. 37  See e.g. William Samuelson and Richard Zeckhauser, “Status Quo Bias in Decision Making,” Journal of Risk and Uncertainty 1, no. 1 (March 1988): 7–59; Daniel Kahneman, Jack L. Knetsch, and Richard Thaler, “Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias,” Journal of Economic Perspectives 5, no. 1 (1991): 193–206. 38  Timo Baas, Herbert Brücker, and Andreas Hauptmann, “Labor Mobility in the Enlarged EU: Who Wins, Who Loses?,” in EU Labor Markets After Post-Enlargement Migration, ed. Martin Kahanec and Klaus F. Zimmermann (Springer Berlin Heidelberg, 2009), 47–70, http://link.springer.com/chapter/10.1007/978-3-642-02242-5_2.

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of the workforce, it is to be feared, are less able to adjust to these processes, e.g. because investing in new skills does not pay off anymore at their age. Migration obviously entails all kinds of short-term and long-term changes. In the country of origin, remittances contribute to the development of the local economy and alleviate poverty (while sometimes reinforcing already existing privilege), there is demographic change (sometimes even depopulation), the culture becomes more transnational, and the political landscape changes. In the country of destination, there is growth because of the influx of labour while at the same time there is new working-class housing and enclaves and more ethnic diversity (especially in the lower social classes, but sometimes also among the elite), and this diversity has to be accommodated socially and politically, while specialised institutions emerge to deal with marginalised groups.39 Secondly, the willingness to adapt to change decreases with age. For instance, in an experimental study, Ren40 finds that older people have a higher chance of preferring the status quo. Similar results were also found by Besedeš et al.41 It can thus be argued that migration – despite its benefits at the aggregate level – puts a heavier burden on older people and that policy measures, such as active labour market policies, protecting a vulnerable population group, might be justified. 8 Conclusion Migration is a phenomenon that can redistribute wealth among generations. Redistribution takes place in several, sometimes opposing directions. The concomitance of various effects in a diverse, decentrally organised world makes it difficult to reach clear policy conclusions or a grand, all-encompassing cause for reform. Migration affects the generations currently alive (in this chapter, for the purposes of simplicity, referred to as ‘younger’ and ‘older’ generations), but, in a global system, also future generations yet to be born. However, it is 39  For an overview of social chance and migration, see Alejandro Portes, “Migration and Social Change: Some Conceptual Reflections,” Journal of Ethnic and Migration Studies 36, no. 10 (December 1, 2010): 1537–63. 40   Yejing Ren, “Status Quo Bias and Choice Overload: An Experimental Approach” (Tenth Annual Indiana University Department of Economics’ Jordan River Economics Conference, Indiana, 2014), https://economics.indiana.edu/home/conferences/2014-jordan-river-economics-conference/files/2014-05-02-07.pdf. 41  Tibor Besedeš et al., “Age Effects and Heuristics in Decision Making,” The Review of Economics and Statistics 94, no. 2 (May 1, 2012): 580–95.

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undisputed that migration, in principle, contributes to economic growth and to the well-being of people. From an intergenerational justice perspective it can thus be said that migration should be enabled and fostered. Nevertheless, the institutional specifics under which it takes place are still subject to debate. While something may be beneficial at the aggregate level, it might still produce winners and losers. Addressing the potential losses can contribute to improving the workings of the system as a whole. Actions are just if they conform to rules that can be considered just or fair.42 These rules do not exist on their own, but are made by society. With international migration, the society responsible for ensuring justice is the global one. The lack of a world sovereign, a global authority able to ensure that justice is achieved is, thus, a fundamental problem in guaranteeing the rights of individuals. Most of this chapter dealt with voluntary labour migration. It would nevertheless be a worthwhile exercise to take stock of intergenerational aspects present in involuntary, forced migration. Such a discussion could look at the situation of unaccompanied child migrants, human trafficking, migration induced by climate change, and other topical issues, to give a more comprehensive view of all aspects involving movements of people. Acknowledgements This research has been funded by the Swiss National Science Foundation. I am grateful to the editors, Samantha Besson, Marion Panizzon, and Alexandra Gaviria for helpful comments.

42  Viktor Vanberg, “Generationengerechtigkeit Im Demokratischen Staat,” in Genera­tion­ engerechtigkeit, ed. Nils Goldschmidt, Walter Eucken Institut. Untersuchungen Zur Ordnungstheorie Und Ordnungspolitik 57 (Tübingen: Mohr Siebeck, 2009), 1–9.

Chapter 11

Funding the Future: Sovereign Wealth Funds as Promoters of Intergenerational Equity Xenia Karametaxas 1 Introduction Sovereign Wealth Funds (SWFs) are public investment vehicles owned and managed directly or indirectly by governments and set up to achieve a variety of macroeconomic purposes. Over the last two decades, SWFs have established as a new category of institutional investors.1 By controlling remarkable financial assets, they have become powerful players on financial markets and in the global economy. Their size and features make them ideal candidates for establishing fairness between generations and leading the financial sector towards sustainability.2 Given the long time horizon of their investments and their highly diversified portfolios, SWFs can potentially promote intergenerational justice. The purpose of this paper is to review the scope of responsibilities of SWFs to ensure a fair distribution of resources between generations. Section 2 puts SWFs into their economic and legal context and develops a definition of sovereign wealth funds. Section 3 explores the foundations of SWFs’ responsibility and relates SWFs to the concept of intergenerational justice. Sections 4 and 5 address the efficiency of existing international normative frameworks and inquire as to the extent to which SWFs may appear as standard setters for responsible investment (RI) practices. 2 Background 2.1 Facts With over USD 8 trillion in assets by the end of 2018, SWFs have become key players on the international financial markets and in the global economy.3 1  Xenia Karametaxas (2017), “Sovereign Wealth Funds as Socially Responsible Investors.” In: Adinolfi G., Baetens F., Caiado J., Lupone A., Micara A., International Economic Law – Contemporary Issues, Springer International Publishing, Cham, pp. 271–288, 272. 2  Benjamin Richardson, Fiduciary Law and Responsible Investing. New York: Routledge, 2013, 227. 3  Based on data from the SWFI, available at (last accessed December 10, 2018). © koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_013

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According to the Sovereign Wealth Fund Institute (SWFI), over forty SWFs have been created since 2005.4 Their growth is closely related to global macroeconomic instability, which explains the steep rise in the value of SWFs’ assets after the 2007–2009 financial crisis.5 In fact, in the aftermath of the financial crisis, SWFs were welcomed investors throughout Europe and the United States, given their ability to provide significant cash injections to frail financial institutions.6 For example, through a substantial capital infusion of USD 11.4 billion by the Government of Singapore Investment Corporation, subprime crisis-ridden UBS could avoid bankruptcy.7 Despite or perhaps due to this crucial role in the wake of the financial crisis, SWFs have come under scrutiny because of both their size and their investment strategies.8 Among recipient states the activities of SWFs have led to uncertainty and concerns, provoking some of them to undertake defensive measures.9 Indeed, in the eyes of recipient countries, SWFs’ investments bring the risk of being used as political or strategic tools rather than traditional investment vehicles.10 Accordingly, calls were made for SWFs to show greater transparency regarding their structure and operating methods. 4  See SWFI, “What is a SWF?” (last accessed April 15, 2017). 5  Myriam Senn, “Sovereign Wealth Funds as Public – Private Challenge for Institutional Governance.” Asian Society of International Law Working Paper 15/2009, 1–20, 4. The SWFI reports that from the start of 2008 until the end of 2012, SWS’s assets grew by 56.1% ( accessed April 15, 2017). 6  See Justin O’Brien, “Barriers to Entry: Foreign Direct Investment and the Regulation of Sovereign Wealth Funds.” The International Lawyer 42 (4/2008): 1231–1257, 1233; AnneCatherine Hahn, “State Immunity and Veil Piercing in the Age of Sovereign Wealth Funds.” Schweizerische Zeitschrift für Wirtschafts-und Finanzmarktrecht 84 (2012): 103–118, 104; Senn (n 4), 4; Karametaxas (n 1), 273. 7   See Myriam Senn, “The Regulation of Hedge Funds, Private Equity and Sovereign Wealth Funds,” In Swiss Report Presented at the XVIIIth International Congress of Comparative Law, edited by Lukas Heckendorn Urscheler, Annelot Peters, 135–158, Geneva: Schulthess, 2010, 154; Karametaxas (n 1), 273. 8   See Markus Burgstaller, “Sovereign wealth funds and international investment law.” In Evolution in Investment Treaty Law and Arbitration, edited by Chester Brown and Kate Miles, 163–186, Cambridge: Cambridge University Press, 2011, 163; Karametaxas, (n 1), 273. 9  See O’Brien (n 6), 1233; Larry C. Backer, “Sovereign investing in times of crisis: global regulation of sovereign wealth funds, state-owned enterprises, and the Chinese experience.” Transnational Law and Contemporary Problems 19 (3/2010): 3–144, 11. 10  O’Brien (n 6), 1242; Paul Rose, “Sovereigns as Shareholders.” North Carolina Law Review 87 (2008): 101–166, 101; Gordon L. Clark et al., Sovereign Wealth Funds – Legitimacy, Governance and Global Power. Princeton: Princeton University Press, 2013, 14 et seq. For details on the question of whether such measures comply with the obligation of States under international investment law and if SWFs may have recourse against national protectionist measures under international investment agreements, see Burgstaller (n 8), 163; Karametaxas, (n 1), 273.

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2.2 Definition A wide range of definitions of SWFs can be found in the legal and economic literature, as well as in the practice of international organisations.11 Yet there is a consensus that all SWFs are State-owned investment vehicles that are established and controlled by a sovereign political entity. The difficulty of defining SWFs lies in the ambiguity of SWFs as investment vehicles themselves: As public institutions, SWFs are formally sovereign; nevertheless they are supposed to behave like private investors.12 Considering that SWFs differ in size, governance structure, funding sources and policy objectives, an additional challenge of finding a common definition lies in the heterogeneity of SWFs as an investor group.13 In this paper, I define SWFs as funds that are (a) established and owned solely by the general government; (b) whose investment strategies include the acquisition of foreign and domestic financial assets and that are (c) established out of balance of payments surpluses, official foreign currency operations, the proceeds of privatisations, fiscal surpluses, and/or receipts resulting from commodity exports.14 3

SWF Responsibilities

3.1 The Financial Mandate of SWFs As institutional investors, SWFs have the fiduciary duty to act in the best longterm interests of their beneficiaries.15 Since SWFs are managed according to the objectives of the sovereign, the ultimate beneficiary is not a specific individual but rather the government itself, the State, the current or future generations and the taxpayer in general.16 SWFs manage assets on behalf of the State to 11  Rose (n 10), 107; Fabio Bassan, The Law of Sovereign Wealth Funds. Cheltenham: Edward Elgar Publishing, 2011, 31; International Working Group of Sovereign Wealth Funds, Sovereign Wealth Funds Generally Accepted Principles and Practices – Santiago Principles (2008) 27 accessed April 15, 2017. 12  Eva Van der Zee, “Sovereign Wealth Funds and Socially Responsible Investments: Dos and Don’ts.” European Company Law 9 (2/2012): 141–150, 142; Backer (n 9), 119; Richardson (n 2), 228. 13  Bassan (n 11), 31. 14  Van der Zee (n 12), 142; see also Karametaxas, (n 1), 275. 15  Iman Anabtawi and Lynn Stout, “Fiduciary Duties for Activist Shareholders.” Stanford Law Review 60 (2008): 1255–1308, 1307. 16  Ashby Monk, “Recasting the Sovereign Wealth Fund Debate: Trust, Legitimacy, and Governance.” New Political Economy 14 (4/2009): 451–468, 456; see also Jane Collier, “Sovereign Wealth Funds – A Significant and Growing Global Force.” In Business Ethics and Sustainability edited by Antonio Tencati and Francesco Perrini, 100–113, Cheltenham: Edward Elgar Publishing, 2009, 111.

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meet its citizens’ future economic needs, and therefore have the fiduciary duty to invest these assets in their best economic interest.17 By adopting a socially responsible strategy, investment funds may achieve higher financial returns. In this sense, companies with a clear sustainable profile might be more profitable in the long run. Companies that are involved in human rights violations or severe environmental damages may face litigation from employees, the community or other stakeholders. They might also get negative press coverage or become the target of non-governmental organisations. Yet the financial consequences of such incidents can be severe: lower share prices, high litigation costs, damaged corporate reputation, limited market access and even a reduced chance to recruit the best employees. Some authors even deduce broader social benefits from corporate responsibility such as an improved trust between the business and the community and social stability.18 3.2 The Ethical Mandate of SWFs As State actors, SWFs have not only a financial, but also an ethical mandate towards their beneficial owners. This gives them incentives to voice their concerns over the companies’ ethical conduct. Note that the ethical and financial motivations of SWFs may intersect, given that unethical corporate behavior may jeopardise the financial interests of SWFs. As shareholders, they have an interest in ensuring that the management does not engage in practices that are likely to cause negative effects upon firm reputation and, subsequently, profits and share prices.19 3.2.1 The Intergenerational Objective of SWFs The concept of inter-generational equity, which is a core principle of the sustainable development concept, refers to the need for a just distribution of rewards and burdens between generations, as well as fair and impartial treatment towards future generations.20 Over the last two decades, intergen17  Richardson (n 2) 227. 18  See Sullivan /Hachez, “Human Rights Norms for Business: The Missing Piece of the Ruggie Jigsaw – The Case of Institutional Investors,” 221. 19  Salar Gahramani, “Governments, Financial Markets, and International Human Rights: The State’s Role as Shareholder.” Yale Journal of International Affairs 6 (1/2011): 85–95, 87; Salar Gahramani, “SWFs and human rights protection.” In Research Handbook on Sovereign Wealth Funds and International Investment Law edited by Fabio Bassan, 321–332, Cheltenham: Edward Elgar, 2015, 321. 20  Sharon Beder, “Responsibility and intergenerational equity.” In Enough for All Forever: A Handbook for Learning about Sustainability, edited by Joy Murray, Glenn Cawthorne,

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erational justice has emerged as a leading concept underpinning several SWFs around the globe.21 If well governed, SWFs may help to maintain and enhance intergenerational justice “by creating investment outlets for earnings that might otherwise have been converted into public sector spending, tax expenditures or corrupt transfers of public wealth into private hands”.22 In this sense, SWFs facilitate the transfer of wealth from the current generation to the next and can, therefore, provide a financial resource for future generations. Some SWFs have been created with the explicit objective of being saving funds for future generations. They aim at ensuring intergenerational equity by allowing future generations to benefit from the current generation’s exploitation of natural resources.23 High savings are in the interest of future generations to the extent that they imply less consumption of resources by the current generation and thus more investment that will benefit the future generations.24 In order to give future generations the opportunity to reap the awards of the investment, SWFs25 should strive to reduce intergenerational externalities.26 An important source of intergenerational externalities arises when actions taken by corporations create costs, and thus may harm future generations without the corporation taking into account these costs. That is the case, for instance, with the impacts of environmental degradation caused by the actions of corporations, such as greenhouse-gas pollution. The resulting alteration of the atmosphere and climate will be primarily carried by future generations.27 Christopher Dey and Chris Andrew, 131-139, Champaign: Illinois Common Ground Publishing, 131. 21   The Worldwatch Institute. State of the World 2014: Governing for Sustainability, Washington D.C: Island Press, 2014, 87. 22  Kathryn Gordon and Joachim Pohl, “Policy frameworks for SWF investments: OECD and host-country perspectives.” In Research Handbook on Sovereign Wealth Funds and International Investment Law edited by Fabio Bassan, 124–144, Cheltenham: Edward Elgar Publishing, 2015, 125. 23  International Forum of Sovereign Wealth Funds, “Santiago Principles: 15 case studies,” Doha November 2014, 11 http://www.ifswf.org/sites/default/files/SantiagoP15CaseStudies1_0 .pdf accessed April 14, 2017. 24   Alexander Cappellen and Runa Urheim, “Pension Funds, Sovereign Wealth Funds and Intergenerational Justice,” Norges Handelshoyskole – Department of Economics, Discussion paper 19 (2012), available at SSRN, accessed April 15th, 2017, http://papers.ssrn. com/sol3/papers.cfm?abstract_id=2156964, doi: http://dx.doi.org/10.2139/ssrn.2156964, 3; van der Zee (n 12), 147. 25  Karametaxas (n 1), 281. 26  Cappelen/Urheim (n 24), 3. 27  Cappelen/Urheim (n 24), 3.

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3.2.2 SWFs and Human Rights Protection The duty of investors to take into account SRI practices derives from the 1948 Universal Declaration of Human Rights (UDHR),28 under which “every individual and every organ of society” should respect and promote, to the extent of its capabilities, the rights set out in the UDHR.29 Thus, by being societal actors, investors have the obligation to respect and promote human rights.30 Note, however, that the UDHR, as a resolution of the UN General Assembly, is not legally binding per se and, therefore does not impose binding human rights obligations directly on investors, despite its widely-recognised status of customary international law.31 Moreover, although SWFs do not formally become parties to international law treaties in the same way as States do, and notwithstanding that such treaties do not impose obligations directly on corporations or investors, SWFs can use international treaties “as a moral compass for their RI practices”.32 Furthermore, SWFs are State organs.33 As such, they act as an extended arm of the State that has a clear mandate to protect human rights and the environment. Thus, the home State of an SWF can be held responsible for breaches of international law obligations by its SWF.34

28  U N General Assembly, “Universal Declaration of Human Rights,” 217 (III) A (Paris, 1948), http://www.un.org/en/universal-declaration-human-rights/ (accessed December 10, 2018). 29  Sullivan/Hachez (n 18) 219. 30  Ibid.; see also Louis Henkin, “The Universal Declaration of Human Rights at 50 and the Challenge of Global Markets.” Brooklyn Journal of International Law 25 (1/1999): 17–26, 25. 31  Sullivan/Hachez (n 18), 219. 32  Richardson (n 2) 230; see also Sullivan/Hachez (n 18). For a detailed discussion about the possibility of applying human rights obligations directly to corporations under international law, see Andrew Clapham, Human Rights Obligations of Non-State Actors. Oxford: Oxford University Press, 2006. 33   International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, accessed December 10, 2018, art. 4 (1): ‘The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State’; art. 4 (2): ‘An organ includes any person or entity which has that status in accordance with the internal law of the State’; see also Sullivan/Hachez (n 18) n 7. 34  Bruno Demeyere, “Sovereign wealth funds and (un) ethical investment.” In Human Rights, Corporate Complicity and Disinvestment edited by Gro Nystuen, Andreas Follesdal and Ola Mestad, 183–221, Cambridge: Cambridge University Press, 2011, 199 et seq.

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3.2.3 SWFs as Activist Shareholders with Ethical Incentives As any other shareholder, State investors can be active or passive owners and on that account, may or may not exert pressure on the management of investee companies.35 However, and even though SWFs make typically minority investments, they have the power to influence the behavior of the investee companies.36 Given their fast and steady growth, SWFs are playing an ever greater role as shareholders in publicly traded corporations, which offer them the opportunity to influence the management and decision making processes of the corporations in which they are invested. They can do so by playing the part of active owners, whether it is in a formal way through the exercise of shareholder voting rights and through proposals at Annual General Meetings of shareholders or in a rather informal way by engaging a dialogue with the company management that shows poor records of corporate social responsibility. They can also contact the media or fellow shareholders in order to influence their voting behaviour. Ultimately, they may put pressure on such companies through disinvestment.37 Arguably, the way SWFs make use of their voting rights and their rights to submit shareholder proposals has an important leverage not only on the investee corporation itself, but affects the economy as a whole, given the fact that SWFs are considered “universal owners” who have highly diversified and long-term portfolios that are representative of global capital markets. Therefore, one of the key challenges is to make sure that SWFs actively make use of their shareholders’ rights. Therefore, SWFs have a responsibility to take action to correct the negative consequences of a corporation’s activity and even to promote sustainable behaviour. 4

SWF Responsibility under Private International Normative Frameworks

Numerous voluntary codes of conduct address issues of SRI, setting normative standards for improved performance and procedures that claim to establish effective and informed decision-making. This section examines four selected international regulatory regimes in terms of SRI and investigates whether they are suitable tools for SWFs to promote intergenerational equity. 35  Karametaxas (n 1), 278. 36  Burgstaller (n 8) 167. 37  Note, however, that selling large stakes causes important transaction costs and requires a certain degree of market liquidity, which is often not the case in difficult economic times. See Lisa M. Fairfax. Shareholder Democracy. Durham: Carolina Academic Press, 2011, 31 et seq.

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4.1 United Nations Principles for Responsible Investment The United Nations Principles for Responsible Investment (UN-PRI) is the most significant international initiative regarding ethical and responsible investment practices of both private and State-owned investors.38 Launched in 2006 by a group of institutional investors in partnership with the UN Environment Program Finance Initiative and the UN Global Compact, the UN-PRI require signatories to integrate “environmental, social and governance” (ESG) issues into their strategic decision-making process and investment practices, and acknowledge the relevance of long-term health and stability of the markets as a whole. Yet the UN-PRI do not explicitly mention human rights considerations, as they are supposed to be covered by the social component of ESG.39 Unfortunately, the UN-PRI lack acceptance among SWFs, which might appear troubling given that these principles are considered “the most important developed initiative” with regard to RI.40 In 2014, only three of the 273 asset owner signatories were SWFs (i.e. the New Zealand Superannuation Fund, the Norwegian GPFG and the French Caisse des Dépots et Consignations).41 With such a low number of adherents, the impact and effectiveness of the UN-PRI is limited. Further, being without any enforcement mechanism, the UN-PRI have no direct leverage on investors to ensure a positive influence over their investee companies’ behaviour, whether over human rights violations or other ethical transgressions.42 4.2 UN Guiding Principles on Business and Human Rights The United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles)43 are the first framework focusing on the relation between business and human rights that have been implemented within the UN system.44 The Guiding Principles focus mainly on the impact of companies on human rights through direct investment.

38  Gro Nystuen et al., Human Rights, Corporate Complicity and Disinvestment. Cambridge: Cambridge University Press, 2011, 3. 39  Angela Cummine, “Ethical Sovereign Investors: Sovereign Wealth Funds and Human Rights.” In Making Sovereign Financing and Human Rights Work edited by Juan Pablo Bohoslavsky and Jerney Letnar Cernic, 163.180, Oxford: Hart Publishing 2014, 168. 40  Nystuen et al. (n 38) 3; Cummine (n 39) 168. 41  See the UN-PRI website accessed April 30, 2017. 42  Cummine (n 39) 168; Nystuen/Follesdal/Mestad (n 38) 4; Peter Frankental, “Business and Human Rights.” In Corporate Social Responsibility edited by Kathryn Haynes, Alan Murray and Jesse Dillard, 221–228. London: Routledge, 2012, 222. 43  United Nations, Guiding Principles on Business and Human Rights (New York and Geneva 2011). 44  Frankental (n 42), 221 et seq.

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The core idea behind the UN Guiding Principles is that all businesses, including and especially State-owned enterprises, have a responsibility to respect human rights. This clearly includes investors and thus also SWFs.45 For that purpose, the UN Guiding Principles determine three grounds on which corporate human rights violations can be addressed: (i) the State’s duty to protect human rights, (ii) the corporations responsibility to respect human rights where they operate, and (iii) the State’s duty to ensure that effective remedies are available for victims of corporate human rights abuse.46 In its commentaries to the UN Guiding Principles, Professor John Ruggie acknowledged that if the business has the leverage to prevent or mitigate the adverse impact of wrongful practices, it should exercise it.47 From this point-of-view, investors can also use this framework to assess the human rights performance of companies.48 4.3 UN Global Compact The best-known normative framework that deals with Corporate Social Responsibility generally and on a global level is the UN Global Compact.49 This set of principles defines itself as “a strategic policy initiative for businesses that are committed to aligning their operations and strategies with then universally-accepted principles in the areas of human rights, labour, environment and anti-corruption”.50 As internationally accepted principles, the UN Global Compact may serve as a reference for SWFs when making investment decisions and exercising their ownership rights. Like the UN Guiding Principles, the UN Global Compact is a non-binding soft law code that addresses companies directly without adopting the investor’s perspective, but due to the absence of any enforcement and punitive mechanism its effectiveness remains questionable.51 Moreover, with only three SWFs (Norwegian Government Pension Fund Global; New Zealand Superannuation Fund; National Pension Reserve Fund of Ireland) supporting

45  Karametaxas (n 1) 281. 46  Sullivan/Hachez (n 18), 229. 47  Guiding Principles on Business and Human Rights, commentary of the Principle n 19, 21. 48  As the commentary of Principle 4 clearly states: ‘Where a business enterprise is controlled by the State or where its acts can be attributed otherwise to the State, an abuse of human rights by the business enterprise may entail a violation of the State’s own international law obligations’. 49  See accessed April 11, 2017; for a general overview of the UN Global Compact see Subhabrata Bobby Banerjee, Corporate Social Responsibility. Cheltenham: Edward Elgar 2007, 97–99. 50  See UN Global Compact website https://www.unglobalcompact.org/AboutTheGC/index .html, accessed April 11, 2017. 51  Banerjee (n 49), 45.

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the principles, the number of SWFs having joined the UN Global Compact remains very low. 4.4 Santiago Principles In 2008, a working group composed by SWFs (the International Working Group of Sovereign Wealth Funds, IWG-SWF) and supervised by the International Monetary Fund (IMF), published the Generally Agreed Practices and Principles (GAPP), commonly referred to as the Santiago Principles. The Santiago Principles are the only international voluntary framework of investment and operational principles directed at SWFs.52 Given their exclusive focus, they are the most appropriate to regulate the investment behaviour of SWFs. The basic premise of the Santiago Principles is to guarantee transparency, clarity and equivalent treatment to private funds.53 Surprisingly, however, the Santiago Principles do not contain any outspoken provision addressing SRI practices. Against this background the question is whether the incorporation of RI principles within a funds overall approach is allowed under the Santiago Principles. Principle 19.1 states that SFWs have to disclose if their investments are on grounds other than “financial and economic considerations”, which technically includes social, ethical or religious reasons. Likewise, Principle 21 mentions the exercise of voting rights by SWFs in investee companies, but does not address responsible investment concerns. Instead, it acknowledges that the exercise of voting rights aims to protect the financial value of the investments and merely requires the disclosure of the exercise of voting rights: “[i]f an SWF chooses to exercise its ownership rights, it should do so in a manner that is consistent with its investment policy and protects the financial value of its investments.” This implies that the avoidance of complicity in unethical conduct or social and environmental harm is part of the protection of the investments’ long-term value. Nevertheless, consistent with Principle 21, the consideration of sustainable investment practices by SWFs must be publicly disclosed and should not reduce the financial benefit of its investments. The incorporation of RI issues may also be based on Principle 22 under which SWFs are required to establish a framework that identifies, assesses, and manages the risks of their operations. More precisely, as noted in the commentary on Principle 22, one of the risks that SWFs face in their investment operations is the reputational risk, that is to say “the potential that negative publicity regarding an SWF’s business practices, whether true or untrue, may 52  Karametaxas (n 1), 282. 53  Ibid.

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cause a decline in investment returns, costly litigation, loss of counterparts, or impairment of the home country government’s international standing”. In fact, the investment in a company that allegedly violates human rights or that causes environmental damage could cause serious reputational harm.54 In view of the foregoing observations, it can be stated that the Santiago Principles do not explicitly encourage SWFs to consider RI issues in their investment and voting decisions. Yet, given their wide acceptance and their exclusive focus on SWFs, the Santiago Principles would be a good starting point for reconciling the ethical and financial aspirations of SWFs. A first step towards a higher implementation of RI practices of SWFs should therefore be provided by an assessment of the Santiago Principles. In the longer term, the development of a code of conduct under the supervision of an international body, tailored to meet the specific needs of SWFs, would be desirable.55 5

SWFs as Promoters for Responsible Investment Practice

By incorporating environmental and human rights considerations into their internal investment policies, SWFs can set best practices and contribute to a change in the investment policies of private sector counterparts.56 Although SWFs are generally passive investors,57 when it comes to implementing RI standards in the financial sector, they are in an ideal position. They benefit not only from their large size and potential market leverage, but also from their longterm investment horizons and their widespread public visibility.58 Since SWFs are able to establish their own investment policies, they have the potential to promote change, beyond SWFs portfolios, by shaping best practices for private investors and thereby setting global standards of responsible investment. An increasing number of SWFs have explicitly acknowledged that their long-term interests are linked to sustainable development. Through internal ethical guidelines, SWFs express their expectations towards the companies in which they invest and set limitations of a non-economic nature on the investment decision-making of the fund. The Norwegian SWF (Government Pension Fund Global, NGPF-G) is the largest investor applying SRI criteria and has established itself as the leading example of financial and social sovereign 54  Karametaxas (n 1), 283. 55  Karametaxas (n 1), 283. 56  Van der Zee (n 12) 146 et seq. 57   Paul Rose, “Sovereign Investing and Corporate Governance: Evidence and Policy.” Fordham Journal of Corporate and Financial Law 18 (2013): 1–51, 2. 58  Richardson (n 2) 227.

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wealth activism. Moreover, the NGPF-G influenced the investment practices of several Norwegian private institutional investors such as pension funds and investment funds.59 In order to comply with its Ethical Guidelines, Norges Bank (as the manager of NGPF-G) pursues two basic strategies. The first strategy is the active exercise of the NGPF-G’s ownership rights to safeguard its long-term financial interests.60 To this end, NGPF-G follows its own internal Ethical Guidelines, which are in turn based on the UN Global Compact and the OECD Guidelines for Corporate Governance and the Guidelines for Multinational Enterprises. The NGPF-G’s second strategy includes the annual release of a company exclusion list. Drawn up by the Council on Ethics, an independent body, this list names companies that should be excluded from Norway’s investment universe, based on two types of exclusion criteria.61 The product-based standards may lead to the exclusion of companies that sell military goods to certain States that are subject to investment restrictions or produce tobacco or weapons that could violate humanitarian norms. Conduct-based criteria assess a compa­ ny’s real or potential involvement in systematic violations of human rights; individual rights violations in conflict or war; grave environmental harm; flagrant corruption; or, other violations of basic ethical norms.62 Whereas the main purpose of the exclusion list is to avoid the fund’s own complicity in ethical problematic activities,63 it might also influence their behaviour, in addition to any corporate engagement.64 In doing so, the NGPF-G not only contributes to the professionalisation of SRI principles, but also exercises a form of normative pressure on private investors. Besides the NGPF-G, only the New Zealand Superannuation Funds, the French Pension Reserve Fund and the Papua New Guinea’s Liquefied Natural 59  Elias Bengtsson, “A history of Scandinavian socially responsible investing.” Journal of Business Ethics 82 (2008): 969–983, 978. 60  Manda Shemirani, Sovereign Wealth Funds and International Political Economy. London: Routledge, 2011, 52. 61  The company exclusion list is available online: https://www.nbim.no/en/responsibility/ exclusion-of-companies/ (accessed April 15, 2017). 62  Guidelines for the Observation and Exclusion of Companies from the Government Pension Fund Global’s Investment Universe, available at: https://www.regjeringen .no/contentassets/7c9a364d2d1c474f8220965065695a4a/guidelines_observation_exclu sion2016.pdf (accessed April 15, 2017). 63  About the notion of complicity and due diligence of SWFs under international norms, see Salar Gahramani, “SWFs and human rights protection.” In Research Handbook on Sovereign Wealth Funds and International Investment Law edited by Fabio Bassan, 321–332, Cheltenham: Edward Elgar, 2015, 329 ff. 64  Richardson (n 2), 241.

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gas fund have the explicit legal obligation to invest ethically.65 However, their legal mandate limits responsible investment to the means of promoting long-term financial returns, without mentioning any explicit duty to invest in sustainability and to actively promote sustainable development or to seek improvements in companies’ sustainability performance.66 In order to lead the global economy towards sustainability, SWFs should be held accountable for responsible investment, which means they should not only eschew companies that harm the environment or violate human rights, but they should also actively promote sustainable development.67 This implies that the legal perception of SWFs should make SWFs public stewards of environmentally and socially responsible investments, which shall lead to the establishment of explicit duties to invest in sustainability.68 6 Conclusion The concept of intergenerational equity is a fundamental pillar of the investment practices of SWFs, given that their objective is the transfer of wealth from one generation to another. As long-term investors, SWFs should promote sustainable development and a fair distribution of resources across the generations, in order to ensure that not only the current, but also the future generations can benefit from the investments. Through their leverage and impact, SWFs have the potential to contribute substantially to the improvement of sustainability of the financial markets. To the extent that the fiduciary duties of SWFs go beyond the economic maximization of returns on their investment, the consideration of ESG issues should become a core part in the investment decision-making of any SWF aimed at the fair distribution of resources among the generations.

65  Richardson (n 2), 227; Cummine (n 39), 172. 66  Ibid. 67  Michele Vellano and Annamaria Viterbo, “SWFs and development.” In Research Handbook on Sovereign Wealth Funds and International Investment Law edited by Fabio Bassan, 371– 388, Cheltenham: Edward Elgar Publishing, 2015, 413. 68  Richardson (n 2) 227.

Chapter 12

Striking a Balance between the Protection of Foreign Investment and the Safeguard of Cultural Heritage in International Investment Agreements: Can General Exceptions Make a Difference? Roberto Claros 1 Introduction Just as virtually any area of public policy-making may impact investment activities,1 the safeguard of cultural heritage might be occasionally at odds with the international obligations of the State regarding the protection of foreign investment. Some of the particular traits of international investment law increase the probability of potential conflicts with non-investment international obligations. First, this area of the law is mainly grounded in international investment agreements (IIAs) which typically include ‘standard-type norms’, i.e., treaty provisions that establish general obligations on States, with an openended character.2 As such, there is an important risk of legal uncertainty since there is no a priori definition, but rather a case-by-case assessment of the scope of a standard of investment treatment and the extent to which it may affect the right of the State to regulate in the public interest. Second, the settlement of investment treaty disputes through ad hoc investor-State arbitration instead of a standing judicial body increases the risk of inconsistent and even contradictory interpretations on identical issues arising from the interface between 1  As rightly noted by Stephan Schill, international investment law has gained increasing importance for domestic law and policy-making as well as a ubiquitous purview because of the increasingly widespread presence of foreign investors and the impact of virtually any area of public policy-making on investment activities. See Stephan W. Schill, ed., International Investment Law and Comparative Public Law, (New York: Oxford University Press, 2010), ix; and Stephan W. Schill, “W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law,” The European Journal of International Law 22–3 (2011): 880. 2  Yuval Shany is accurate in observing that the choice to replace rules with standards marks a preference for pluralism and diversity over uniformity in law-application and that, in all events, resort to standard-type norms reduces legal certainty since their application is always circumstance-dependent. See Yuval Shany, “Toward a General Margin of Appreciation Doctrine in International Law?,” The European Journal of International Law, 16–5 (2006): 915.

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_014

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investment rights and public policy. All of this ultimately diminishes the certainty and predictability sought in IIAs and may trigger endless discussions over conflicting non-investment international obligations. Third, the proliferation of IIAs3 containing the consent of the States Parties to investment treaty arbitration,4 as well as the resulting right of foreign investors to bring investment treaty claims against any public policy decision that allegedly affected their rights, have led to an increasing number of IIA disputes.5 Notwithstanding, States retain an important leeway in the absence of a multilateral investment treaty in order to set out their investment treaty policies and reduce the risk of potential conflicts with non-investment international obligations. Some States are indeed redefining their investment treaty practice so as to strike a better balance between investment rights and the right to regulate in the public interest. This paper examines different options in investment treaty-making for addressing and preventing potential conflicts of norms with respect to investment and cultural heritage rights. Taking into account the rationale of intergenerational justice and the extent to which it may underpin the protection of cultural heritage within the realm of international investment law, the paper examines the interface between investment treaty obligations and international cultural heritage law. It explores potential conflicts of norms and delves into the culture-related cases in investor-State arbitration. Finally, it provides an analysis of investment treaty-making alternatives deemed consistent with the safeguard of cultural heritage while addressing the option of refining treaty standards of investment protection and the suitability of including culture-related IIA exceptions.

3  As of end 2014, the overall number of IIAs amounted to 3,271 worldwide. See United Nations Conference on Trade and Development (UNCTAD), World Investment Report 2015–Reforming International Investment Governance (New York and Geneva: United Nations, 2015), 106. 4  Most IIAs contain the consent of the States Parties to investor-State arbitration, which, as mentioned by Jan Paulsson, is understood to grant foreign investors the right to arbitrate a wide range of grievances arising from the actions of a large number of public authorities, “whether or not any specific agreement has been concluded with the particular complainant”. See Jan Paulsson, “Arbitration without Privity,” ICSID Review – Foreign Investment Law Journal, 10–2 (1995): 233. 5  The overall number of investor-State arbitration cases concluded reached 356 as of end 2014. See UNCTAD, “Recent Trends in IIAS and ISDS,” IIA Issues Note, February 2015 (1), 1.

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The Interface between International Cultural Heritage Law and International Investment Law

International cultural heritage law finds its origins in the protection of cultural property during wartime, mainly limited to tangible heritage such as monuments, archaeological sites and cultural objects.6 With the establishment of the United Nations (UN), and particularly of the UN Educational, Scientific and Cultural Organization (UNESCO) in 1945, the safeguard of cultural heritage has acquired new dimensions under international law, since its scope was further extended beyond the realm of international humanitarian law to encompass the prohibition of illicit trafficking of cultural objects;7 the safeguard of world cultural heritage,8 underwater cultural heritage,9 and intangible cultural heritage;10 and the recognition and protection of the diversity of cultural expressions.11 Notwithstanding the foregoing, this is an area where general international law is still in an early stage of development and where most State’s obligations are grounded on treaty-based norms granting States significant leeway for policy implementation. 6  The two international peace conferences held in The Hague in 1899 and 1907 played a pioneering role in the development of the protection of cultural property during wartime. As highlighted by Jiri Toman, the importance of some provisions dealing with the protection of cultural property under the IV Convention adopted by the International Peace Conference of 1907, namely articles 27 and 56 of the Regulations concerning the Laws and Customs of War and Land annexed to that Convention, was further reinforced by the assertion of the Nuremberg International Military Tribunal that, by 1939, they were rules “recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war”. See Jiri Toman, The Protection of Cultural Property in the Event of Armed Conflict (Aldershot and Paris: Dartmouth and UNESCO, 1996), 10. This legal framework was complemented by the “Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments” (‘Roerich Pact’) adopted in 1935. Importantly, the principles concerning the protection of cultural property, as developed under the aforementioned treaties, underpinned the adoption of the “Convention on the Protection of Cultural Property in the Event of Armed Conflict” in 1954, as well as its two additional Protocols, which arguably consolidated the international protection of cultural property in situations of armed conflicts. 7  Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted in 14 November 1970 [823 UNTS 231]. 8  Convention for the Protection of the World Cultural and Natural Heritage, adopted in 16 November 1972 [1037 UNTS 151]. 9   Convention on the Protection of the Underwater Cultural Heritage, adopted in 2 November 2001 [41 ILM 40]. 10   Convention for the Safeguarding of the Intangible Cultural Heritage, adopted in 17 October 2003 [2368 UNTS 3]. 11  Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted in 20 October 2005 [2440 UNTS].

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The growing scope of international cultural heritage law has increased the potential for normative intersection and conflicts with other areas of international law.12 At the same time, in the absence of a specific international jurisdiction for the settlement of disputes on cultural heritage issues, the available means for the resolution of disputes involving States’ obligations in this field are limited. While the aims and objectives of some international regimes may positively intertwine with the safeguard of cultural heritage,13 the contrary may be equally true regarding other regimes where cultural heritage policies collide with non-cultural international obligations of the State. The interface between international cultural heritage law and international investment law moves closer to the second category of relationship since the object and purpose of IIAs, as well as the main provisions therein, are traditionally circumscribed to the protection of foreign investment without due regard for the State’s obligations on cultural heritage issues. However, a better interplay between these two areas of the law can be addressed at the investment treaty-making stage, thereby reducing the potential risk of normative conflicts. Cultural Heritage Rights as an Expression of Intergenerational Justice Due to their shared conceptual underpinnings, cultural heritage law and intergenerational justice are inextricably connected. The idea of cultural ‘heritage’ includes an intergenerational component in terms of an ‘inheritance’ to be ‘held in trust’ across generations. As such, it is embedded within a general theory of intergenerational justice, which relies on the inherent relationship 2.1

12  The increased scope of international cultural heritage law is not only related to the increased number of multilateral treaties in this field, but also to the all-encompassing character of the term ‘culture’. A broad definition under the legal framework of UNESCO refers to culture as “the set of distinctive spiritual, material, intellectual and emotional features of society or a social group … that encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs.” See Preamble to UNESCO’s Universal Declaration on Cultural Diversity, adopted in 2 November 2001. 13  A clear-cut example of this is international human rights law, where the safeguard of ‘cultural heritage‘ is partially covered under the protection of ‘cultural rights’, and it might be invoked as such under the jurisdiction of regional human rights courts. On the interplay between human rights law and cultural heritage law, see, inter alia, Ana Filipa Vrdoljak, “Cultural Heritage in Human Rights and Humanitarian Law,” in Human Rights and International Humanitarian Law, ed. Orna Ben-Naftali (Oxford: Oxford University Press, 2009) and Silvia Borelli and Federico Lenzerini, ed., Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (Leiden: Martinus Nijhoff Publishers, 2012).

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that each generation has to other generations in using the common patrimony of natural and cultural resources of our planet, and posits that each generation is ‘both a custodian and a user’ of our common natural and cultural patrimony.14 The idea of intergenerational justice provides a conceptual and moral foundation for cultural heritage rights based on equitable principles concerning the allocation and sharing of resources and benefits among generations (the intergenerational dimension), and among peoples within generations (the intragenerational dimension).15 The basic principles of intergenerational justice, as envisaged by Edith Brown Weiss, draw on a reasonable and equitable conservation of the resources that are ‘held in trust’ by each generation. In the field of cultural heritage law and policy, these principles require each generation to conserve the diversity of cultural resources (conservation of options) and the quality thereof, so that these resources are passed on in no worse condition than that in which they were received (conservation of quality); and, to provide equitable rights of access to this legacy for future generations (conservation of access).16 Whilst the aforementioned principles do not specify the extent to which it is reasonable to burden each generation with conservation measures, they are useful as general criteria to delineate State’s duties and policies regarding the intragenerational and intergenerational dimensions of an equitable conservation of the cultural heritage. Whatever the materialisation of these principles and the different theories that draw on them,17 it is argued that they balance the extreme positions of a preservationist model, which would require present generations not to deplete or alter any resource, and an opulence model, where it is assumed that future generations will be able to cope with the impoverishment of the resources stemming from an unrestricted use thereof

14  Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Tokyo: The United Nations University, 1989), 21. 15   Intergenerational justice involves a set of intragenerational obligations and rights designed to implement justice between generations. Ibid. 16  Edith Brown Weiss, “Intergenerational Equity and Rights of Future Generations,” in The Modern World of Human Rights, Essays in Honor of Thomas Buergenthal, ed. Antônio Cançado Trindade (San Jose: Instituto Interamericano de Derechos Humanos, 1996), 608–609. 17  On the most influential approaches to intergenerational justice, including communitarianism, libertarianism, contractualism, contractarianism, marxism, reciprocity-based views, and sufficientarianism, see Axel Gosseries and Lukas H. Meyer, ed., Intergenerational Justice (New York: Oxford University Press, 2009).

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by present generations.18 However, we encounter difficult challenges in the implementation of these principles, particularly in ascertaining the needs of future generations,19 enforcing intergenerational rights, and coping with problems of social justice.20 The conceptual and moral underpinnings of intergenerational justice have been enshrined in multilateral treaties and international instruments addressing human rights, as well as environmental and cultural heritage issues. We find express references to the principles of intergenerational justice in the Convention for the Protection of the World Cultural and Natural Heritage (WHC). Article 4 of the WHC broadly refers to the duty of each State Party to ensure the identification, protection, conservation, presentation and transmission to future generations of cultural and natural heritage. Moreover, the Preamble of the WHC states that deterioration (conservation of quality) or disappearance of ‘any item’ (conservation of options) of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world. In the same vein, the UNESCO Declaration on the Responsibilities of the Present Generations towards Future Generations21 states that present generations have the responsibility to ensure that the needs and interests of present and future generations are fully safeguarded.22 More concretely, it highlights that each generation should be able to preserve its cultural diversity,23 and refrain from taking any action or measure which would have the effect of leading to or perpetuating any form of discrimination for future generations (conservation of options and access).24

18  See Brown Weiss, Fairness, 46; and Sharon Beder, “Responsibility and intergenerational equity,” in Enough for All Forever: A Handbook for Learning about Sustainability, ed. Christopher Andrew et al. (Champaign: Common Ground Publishing, 2012), 136. 19  This challenge is related to the absence of physical co-existence between non-contemporaries and the uncertainty of not knowing what to bequeath and in what conditions. See Gosseries and Meyer, Justice, 3–4. 20  The concept of social justice is embedded within the intragenerational dimension of intergenerational justice, and pursues the distribution of well-being over all members of society promoting spatial sustainability. Social justice demands the respect of everyone’s right to share in the common good. See J.K. Summers and L.M. Smith, “The Role of Social and Intergenerational Equity in Making Changes in Human Well-Being Sustainable,” Ambio – A Journal of the Human Environment 43–6 (2014): 718. 21   Declaration on the Responsibilities of the Present Generations towards Future Generation, adopted in 12 November 1997 by the General Conference of UNESCO at its 29th session. 22  Ibid., Article 1. 23  Ibid., Articles 2 and 7. 24  Ibid., Article 11.

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Cultural Heritage and Investment Rights: Conflicting Interests in Investor-State Arbitration The enlarged participation of foreign investment in a globalised economy along with the broad and dynamic scope of cultural heritage policies may set international obligations of the State in opposition to each other. From the perspective of international investment law, cultural heritage policies may affect investors’ rights in different ways and trigger claims before international investment tribunals. So far, culture-related cases in investor-State arbitration have involved State’s policies concerning tangible and intangible cultural heritage, the underwater cultural heritage, and cultural diversity issues. In Malaysian Historical Salvors v. Malaysia,25 the sole arbitrator appointed to decide the case concluded that a contract involving the salvaging of an ancient shipwreck was not an investment within the meaning of Article 25(1) of the ICSID Convention and dismissed the claim on jurisdiction. The arbitrator interpreted the meaning of ‘investment’ as requiring some form of ‘economic’ development for the host State, and considered that the salvage contract only benefited the Malaysian public interest in a cultural and historical way.26 The award was ultimately annulled by an Annulment Committee which established that a salvage contract is a form of investment within the broad definition of investment of the UK-Malaysia Bilateral Investment Treaty (BIT). The debate of whether the contribution to the economic development of the host State is part of the definition of ‘investment’ under the ICSID Convention is far from over, and whether the salvage contract met this requirement in the case is disputable. Notwithstanding this, what is relevant to highlight is the potential interplay between treaty-based protection of foreign investment and States’ obligations relating to underwater cultural heritage law. It is important to note for example that the Convention on the Protection of the Underwater Cultural Heritage (UWCH) forbids commercial exploitation of underwater cultural heritage. This circumstance may play a role in the assessment of an economic activity in terms of determining the existence of a protected investment, which is in turn relevant for satisfying the subject-matter jurisdictional requirements of an investment tribunal. From an overall perspective, a paradigm of systemic integration in the interpretation of IIA provisions, i.e., an interpretive approach that requires taking 2.2

25  M  alaysian Historical Salvors SDN, BHD v Government of Malaysia (Award on Jurisdiction, 17 May 2007) ICSID Case No. ARB/05/10; Malaysian Historical Salvors SDN, BHD v Government of Malaysia (Decision on the Application for Annulment, 16 April 2009) ICSID Case No. ARB/05/10. 26  Malaysian Historical Salvors v. Malaysia (Award on Jurisdiction) 131–2.

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into account other relevant rules of international law applicable in the relation between the Parties of a treaty,27 would involve evaluating possible limitations to the protection of foreign investment in IIAs in light of other States’ obligations under international cultural heritage law.28 In Parkerings v. Lithuania, a cultural heritage policy was relevant to consider that two foreign investors were not in ‘like circumstances’ and to dismiss on this ground the claim of a breach of the most favoured nation standard (MFN) set forth in the Lithuania-Norway BIT signed in 1992. The claim was raised after the Respondent State refused to contract with the claimant and preferred to contract with another foreign investor in order to develop a project for the building of a parking system in the historic centre of Vilnius. The arbitral tribunal considered that public policy concerns “in terms of historical and archaeological preservation” of the cultural heritage were “legitimate grounds to distinguish between the two projects”.29 Noticeably, in terms of approaches to intergenerational justice, this is a case where a ‘conservationist’ approach was preferred over a ‘preservationist’ one. The Municipality of Vilnius did not prevent the development of an economic project in the historic centre of the 27  The principle of systemic integration draws on Article 31 (3) (c) of the 1969 Vienna Convention on the Law of Treaties and requires treaty interpretation to be conducted in a way that takes into account any relevant rules and principles of international law applicable in the relations between the Contracting Parties of a treaty. As noted by Dinah Shelton, it is called to determine the precise obligations imposed on the parties in the light of relevant international treaties on the same subject in order to avoid inconsistencies with other international instruments. See Dinah Shelton, “International Law and ‘Relative Normativity’,” in International Law, ed. Malcolm Evans (Oxford: Oxford University Press, Fourth Edition, 2014), 156. This interpretative approach has gained increased prominence in recent international jurisprudence, particularly since the famous judgment of the International Court of Justice in Oil Platforms. Case concerning Oil Platforms (Iran v United States of America) 42 ILM 1334 (2003). Also noteworthy is the work of the International Law Commission on this issue. See International Law Commission, Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, 58th session, 2006, (A/61/10, para. 251). 28  Following this approach of treaty interpretation, State’s obligations under the UWCH could occasionally have an impact on the jurisdiction of investment tribunals. See Monika Feigerlova and Alexandre L. Maltais, “Obligations Undertaken by States under International Conventions for the Protection of Cultural Rights and the Environment, to What Extent they Constitute a Limitation to Investor’s Rights under Bilateral or Multilateral Investment Treaties and Investment Contracts?,” (Geneva: The Graduate Institute – Centre for Trade and Economic Integration, Trade and Investment Law Clinic Papers, 2012) 36. 29  Parkerings-Compagniet AS v Lithuania (Award, 11 September 2007) ICSID Case No. ARB/05/08, 396.

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town but instead required special conditions to be met for the conservation of a World cultural heritage.30 In Glamis Gold v US,31 the arbitral tribunal dismissed the claimant’s arguments relating to the existence of an indirect expropriation and the breach of the fair and equitable treatment standard (FET). The case involved the safeguard of an area related to religious and cultural practices of the Quechan Indian tribe through regulation requiring the backfilling of open-pit gold mines, which allegedly made the claimant’s mining operation uneconomical. The tribunal considered that the regulation was not tantamount to an expropriation since it did not cause a sufficient economic impact to the investment project, and deemed the governmental measures to be rationally related to their stated purpose. Importantly, the tribunal referred to Article 12 of the WHC, which requires States to protect their cultural heritage even if the protected value is not listed in the World Heritage List.32 In contrast with Glamis Gold and Parkerings, the arbitral tribunal in SPP v. Egypt33 adopted a restrictive approach with respect to the State’s obligations on cultural heritage issues. This case involved the development of a tourist village at the pyramids of Giza. Egypt cancelled the project and the area was subsequently included in the UNESCO World Heritage List. Controversially, the tribunal deemed that it is only after a cultural heritage is added to the World Heritage List that the relevant international obligations emanating from the WHC become binding on the State.34 Notwithstanding the foregoing, the tribunal in SPP v. Egypt stated that only the actual damage and not the loss of profit could be compensated, since the sales in the areas after registration pursuant the WHC became illegal under international law.35 This approach contrasts with the tribunal’s position in

30  The historic centre of Vilnius is listed under the UNESCO World Heritage List since 1994. 31   Glamis Gold v United States of America (Award, 8 June 2009) NAFTA/UNCITRAL Arbitration. 32  As noted by Valentina Vadi, this reference is extraordinary as cultural heritage experts have repeatedly stressed that Article 12 of the WHC is an often neglected provision. Valentina Vadi, “Culture Clash: Investor’s Rights v. Cultural Heritage in International Investment Law & Arbitration” (paper presented at the 3rd Biennial Global Conference of the Society of International Economic Law, Singapore, July 12–14, 2012): 13, accessed October 1, 2015, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2087823. 33  Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt (Award, 20 May 1992) ICSID Case No. ARB/84/3. 34  Ibid., 154. 35  Ibid., 157, 190.

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Santa Elena v. Costa Rica,36 a case of expropriation in a Conservation Area that was subsequently added to the UNESCO World Heritage List. In this case, compensation was based on the property’s fair market value after the tribunal clarified that the legitimate public purpose of the State’s measures does not affect either the nature or the measure of the compensation.37 Similarly, the tribunal in Unglaube v. Costa Rica,38 a case concerning an expropriation in a National Marine Park, held that no matter the legitimate goal pursued by the State, an expropriatory measure must be compensated at the fair market value of the investment. Finally, a relevant example regarding the application of a cultural excep­tion can be found in UPS v. Canada.39 This case involves a claim on nondiscrimination regarding the implementation of a cultural policy designed to promote the wider distribution of Canadian periodicals. The tribunal upheld that the policy measure was exempted from review under the cultural industries exceptions set forth in Article 2106 and Annex 2106 of the North American Free Trade Agreement. 3

The Safeguard of Cultural Heritage in IIAs: Alternatives in Investment Treaty-making

The cases studied demonstrate different lines of interpretation regarding the extent to which cultural heritage law and policies may delineate the meaning and scope of investment rights. This section examines alternatives at the treaty-making stage for articulating investment rights and States’ obligations on cultural heritage issues, with a view to reducing the risk of uncertainty and unpredictability in investor-State arbitration. After exploring alternatives for the recalibration of some IIA provisions, the study analyses the suitability and effectiveness of including culture-related exceptions in IIAs.

36  C  ompañia del Desarrollo de Santa Elena S.A. v Republic of Costa Rica (Award, 17 February 2000) ICSID Case No. ARB/96/1. 37  Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge: Cambridge University Press, 2014), 120. 38  Marion Unglaube and Reinhard Hans Unglaube v. Republic of Costa Rica (Award, 16 May 2012) ICSID Case No. ARB/09/20. 39  United Parcel Service of America Inc. v. Government of Canada (Award, 24 May 2007) NAFTA/UNCITRAL Arbitration.

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3.1 Adjusting IIA Provisions in Light of Cultural Heritage Policies 3.1.1 Preamble Carefully-crafted IIA provisions may contribute to articulate the promotion and protection of foreign investment with States’ obligations on cultural heritage issues. Starting with the Preamble of an IIA, which is a relevant source for ascertaining the object and purpose of a treaty, hortatory language reflecting a mutually-supportive relationship between investment and the safeguard of cultural heritage has the potential to shed light on treaty interpretation of IIA provisions, considering the Contracting Parties’ interest in achieving a balance between investment protection and States’ obligations under international cultural heritage law. Such hortatory language could be thought of in terms of relevant and concrete concerns relating to intergenerational justice as a conceptual underpinning for the protection of cultural heritage, and could be less troublesome to incorporate in the text of a treaty as compared to exploring the inclusion of innovative wording in the drafting of substantive IIA provisions. 3.1.2 Definition of ‘Investment’ In the current scenario of a renewed interest in discussing possible reforms to improve the international investment law regime, a policy option outlined by UNCTAD to operationalise sustainable development objectives in IIAs consists in requiring covered investments to fulfil specific characteristics, including a positive development impact on the host State.40 As already observed in Malaysian Historical Salvors v. Malaysia, this feature is not necessarily implicit in the definition of ‘investment’,41 and several investment tribunals have indeed rejected the argument of the contribution to the development of the host State as a limitation to their subject-matter jurisdiction.42 40  U NCTAD, Investment Policy Framework for Sustainable Development (New York and Geneva: United Nations, 2012) 45. 41  The discussion of implicit elements in the definition of ‘investment’, including the contribution to the economic development of the host State, gained prominence with the restrictive jurisdictional test adopted by the arbitral tribunal in the case Salini Costruttori v. Morocco (Salini Costruttori S.p.A. and Italstrade S.p.A. v. Morocco, ICSID Case No. ARB/00/4 Decision on Jurisdiction, July 23, 2001). On the meaning of investment in ICSID arbitration and a detailed account of the ICSID relevant cases see, inter alia, Pierre-Emmanuel Dupont, “The Notion of ICSID Investment: Ongoing ‘Confusion’ or ‘Emerging Synthesis’?,” The Journal of World Investment & Trade 12 (2011); and Juan Davis Mortenson, “The Meaning of ‘Investment’: ICSID’s Travaux and the Domain of International Investment Law,” Harvard International Law Journal 51–1 (2010). 42  As noted by Dupont, the requirement of a contribution to the economic development of the host State has been discarded in a large number of arbitral decisions. From a total

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An explicit reference of this type seems therefore necessary in an IIA to circumscribe the range of covered investments in light of development-related policies, including cultural heritage issues. The requirement of the contribution to the economic development of the host State has been mainly discussed in ICSID arbitration cases because of the reference in the Preamble to the ICSID Convention to “the need for international cooperation for economic development, and the role of private international investment therein”. Absent an explicit reference in the text of an IIA, it is difficult to advance a debate on possible constraints about the notion of ‘investment’ on development-related grounds. Furthermore, even if a relatively ambiguous reference such as that of the ICSID Preamble is made in the text of an IIA, important questions may remain regarding the ‘nature’ of the contribution to the development of the host State required by the investment treaty. Questions of this type may include whether and to what extent non-economic interests should be taken into account in the analysis of the contribution to the development of the host State; as well as the ‘effectiveness’ of such contribution, which may be measured through quantitative or qualitative methods. 3.1.3 Standards of Investment Protection Turning to the drafting of substantive IIA provisions, some policy options in investment treaty-making may be particularly relevant to preserve a regulatory space related to cultural heritage policies. First, States may reduce the vagueness of the FET standard by including an exhaustive list of conditions, such as the obligation not to deny justice in judicial or administrative procedures, not to treat investors in a manifestly arbitrary manner, and not to flagrantly violate due process.43 Following this approach, States could reduce the risk of overextended interpretations of the FET standard in order to avoid unnecessary constraints to the design and implementation of legitimate culture-related policies. The reference to objective criteria in the FET standard relating to concrete expressions of the rule of law set a better framework for discussing the application and interpretation thereof with a view to strike a reasonable balance between investment protection and public policy issues. of 16 decisions or awards rendered between 2008 and 2010, it has only been used twice, namely, in Million International Operations B.V. and Sentel GSM SA v. Senegal (Decision on Jurisdiction, 16 July 2010) ICSID Case No. ARB/08/20, and Toto Costruzioni Generali S.p.A. v. Lebanon (Decision on Jurisdiction, 11 September 2009) ICSID Case No. ARB/07/12. See Dupont, ‘Notion of ICSID investment,’ 257. 43  U NCTAD, “Investment Policy Framework,” 44.

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Second, regarding standards of non-discrimination, namely national treatment and MFN, treaty language requiring a comparison between investors/ investments that are ‘in like circumstances’ is relevant to introduce the discussion of potential justifications of a different treatment based on public policy. Such an approach could justify, for example, the special treatment accorded to socially or economically disadvantaged minorities44 whose identity and cultural diversity are endangered, or a preference for investment projects which are in line with cultural heritage policies (see above Parkerings v. Lithuania). Third, with respect to the difficult task of drawing a line between indirect expropriation and legitimate governmental regulations, some recent IIAs expressly clarify that non-discriminatory good faith regulations related to public policy objectives are not deemed to be a case of indirect expropriation.45 The foregoing distinction draws on the so-called police powers doctrine, the origin of which may be traced back to the 1961 Draft Convention on the International Responsibility of States for Injuries to Aliens prepared under the auspices of Harvard Law School.46 Although some investment tribunals and scholars have argued that the police powers doctrine has become a rule of general international law applicable to indirect expropriation,47 its normative value is still debated.48 It seems therefore relevant for States to incorporate and make explicit in IIAs the difference between indirect expropriation and legitimate governmental regulations. By clarifying what is not deemed to be an indirect expropriation, States may preserve a regulatory space for the adoption and implementation of public policies, including measures for the protection of cultural heritage.

44  U NCTAD, “World Investment Report 2015,” 137, 144. 45  Noticeably, this investment treaty practice draws on the US and the Canadian model BITs released in 2004. See Annex B.13 (1) (c) of the 2004 Canadian BIT Model and Annex B (4) (b) of the US BIT Model. 46  The 1961 Harvard Draft was conceived as a revision of the 1929 draft Convention on the Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, which had also been prepared under the auspices of Harvard Law School. See Jürgen Kurtz, “Building Legitimacy Through Interpretation in Investor-State Arbitration: On Consistency, Coherence, and the Identification of Applicable Law,” in The Foundations of International Investment Law, ed. Zachary Douglas, Joost Pauwelyn, and Jorge E. Viñuales. (Oxford: Oxford University Press, 2014), 294. 47  Two investment tribunals have explicitly catalogued the police powers doctrine as a rule of general international law. See Methanex Corp. v United States of America (Award, 3 August 2005) NAFTA/UNCITRAL Arbitration, 7; and Saluka Investments BV v. Czech Republic (Partial Award, 17 March 2006) UNCITRAL Rules, 262. 48  See Jürgen Kurtz, “Legitimacy,” 289–94.

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Preserving Cultural Heritage Policies through Investment Treaty Exceptions Aside from the aforementioned alternatives aimed at striking a balance between investment protection and the right to regulate in the public interest, the Contracting Parties of an IIA may seek to preserve a regulatory space through the inclusion of treaty exceptions with a view to specifically address cultural heritage issues. The inclusion of culture-related IIA exceptions is a complementary investment policy option to the refinement of ‘primary’ norms such as the definition of ‘investment’ and standards of investment protection. From a systemic standpoint, however, the relevance and effectiveness of IIA exceptions is conditioned by the extent to which the ‘primary’ norms already include a regulatory space for the protection of the public interest. If an IIA contains carefully-crafted provisions which balance investment protection and the right to regulate in the public interest, it would be to some extent contradictory to include general exceptions with a broad coverage and scope. The risk of normative overlapping should be measured in these cases in order to avoid potential conflicts in the application and interpretation of IIA provisions. For example, could general exceptions modelled on Article XX of the General Agreement on Tariffs and Trade (GATT) or Article XIV of the General Agreement on Trade in Services (GATS) be effective means for the safeguard of cultural heritage policies? What is the policy space preserved under an ordinary interpretation of standards of investment protection? Under these kind of treaty exceptions, it is required that restrictive policy measures not be applied in a manner that would constitute “arbitrary or unjustifiable discrimination” between investments or between investors, or a “disguised restriction” on investment. Whereas these requirements may be implicit in the ordinary interpretation of some standards of investment protection, such as national treatment, minimum standard of treatment, and expropriation,49 they could also entail an additional burden to host States if they are interpreted in a restrictive fashion in the context of investment treaty arbitration. On the other hand, it is important to assess the inclusion of culture-related exceptions in light of the particular object and purpose of an IIA. Vaguely worded exceptions, for example, could be at odds with the aim of promoting and protecting foreign investment insofar as they may potentially trigger 3.2

49  Andrew Newcombe, “General Exceptions in International Investment Agreements,” in Sustainable Development in World Investment Law, ed. Marie-Claire Cordonier Segger, Markus W. Gehring and Andrew Newcombe (Alphen aan den Rijn: Kluwer Law International, Global Trade Law Series, 2011), 368–70.

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abusive interpretations. Examples of this are vaguely worded ‘non-precluded measures’ clauses which are deemed to have a ‘self-judging’ character or which are explicitly excluded from the dispute settlement provisions of the treaty.50 While this category of exception has been occasionally used for protecting essential security interests, and arguably finds its justification in the circumstance of addressing emergency situations where the very existence of the State is jeopardised, it is doubtful whether it could be a suitable option for striking a balance between investment protection and cultural heritage policies. Some States have developed an important treaty practice regarding the inclusion of culture-related exceptions in IIAs. From an intergenerational justice perspective, what is relevant in these provisions is the extent to which the regulatory space preserved is based on equitable principles, and how the interests of the different generations involved in the conservation of, and the access to, the cultural heritage is taken into account. Some culture-related exceptions may cover only a particular aspect of international cultural heritage law. For example, an IIA which incorporates a cultural exception similar to GATT Article XX (f) would be limited to the protection of “national treasures of artistic, historic or archaeological value”, leaving aside other relevant aspects such as the protection of intangible cultural heritage and the protection of the cultural diversity. In other cases, a culture-related exception may establish a carve-out relating a particular minority population so that the provisions on investment protection do not apply to them. A well-known example of this is the treaty practice of New Zealand with regard to the Maori people.51 In some cases, however, this approach might be at odds with equitable principles of intergenerational justice, since the protection of only a particular minority in a multinational State would not be representative of the cultural diversity of that country.

50  Some examples of these IIA exceptions are provided by the UNCTAD. See UNCTAD, The Protection of National Security in IIAs (New York and Geneva: United Nations, 2009) 91–2, 95–6. 51  For instance, the Trans-Pacific Strategic Economic Partnership Agreement, which established a free trade area between Brunei Darussalam, Chile, Singapore and New Zealand, expressly states that New Zealand can provide more favourable treatment to the Maori in fulfilment of its obligations under the Treaty of Waitangi, “provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods and services”. For a further account of culture-related exceptions in IIAs, see Valentina Vadi, “Cultural heritage,” 278–9.

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4 Conclusions The particular traits of international investment law and investor-State arbitration pose significant challenges for securing a fair balance between investment rights and State’s obligations on cultural heritage issues. This paper briefly explores some of the main avenues for striking such a balance at the investment treaty-making stage. It is argued that the refinement of IIA provisions and the inclusion of culture-related exceptions are complementary means for preserving a regulatory space aimed at safeguarding the cultural heritage in light of principles of intergenerational justice. Both alternatives are mutually supportive and their effectiveness rely on the consistency with which they are designed and referred to in an IIA. Culture-related exceptions, in particular, may be rarely invoked in IIAs with carefully-crafted investment provisions, but they may provide a minimum threshold for preventing abusive interpretations in the case of vaguely worded standards of investment protection.

Chapter 13

Looking Forward: Intergenerational Justice in the Context of Indigenous Rights in Canada Amyn Lalji In her introduction to this book, Severn Cullis-Suzuki quoted her June 1992 Plenary session address, made at age 12, to the United Nations Conference on Environment and Development in Rio de Janeiro. The epilogue to this book, which follows this conclusion, mirrors the introduction in some ways, as it is written by 10-year-old, Jona David, who – like Ms. Cullis-Suzuki – has been exposed to a parent’s extensive work on climate change and other sustainable development challenges. Young Jona David’s epilogue, like the conclusion written by Gawlick and Audoye, focuses on topics addressed in Parts 1 and 2 of this book. This conclusion focuses on the topics covered in Part 3. Many of the chapters in this book have considered intergenerational equity from a forward-looking perspective, considering how to best balance the wants and needs of today with those of the future. The chapters in Part 3 touched upon intergenerational justice for past wrongs – the effects of which persist today and will continue to linger in the future. In particular, Melanie Altanian’s chapter on genocide denial addressed the question of the normative importance of genocide recognition, examining the way in which genocide denial might be considered as a perpetuation of injustice against genocide survivors and their descendants. This conclusion builds on the theme of past wrongs and closes with a reminder of a topic that has not been addressed in this book, as it could fill the pages of several volumes: residential schools in Canada and their intergenerational effects on Indigenous communities and peoples. Much scholarship has been written on this topic, and I am deeply indebted to the Indigenous and non-Indigenous authors, historians, lawyers, judges, activists, and citizens who have shared their experiences and insights relating to the issues around colonialism and residential schools in Canada.1 In my practice as a lawyer

1  For example, the work of Murray Sinclair, Douglas Sanderson, Marion Buller, Patricia Barkaskas, and Gregory Younging has contributed much to Canada’s understanding of these issues. Douglas Sanderson, in particular, helped the development of this conclusion.

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004388000_015

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representing Indigenous clients, I am constantly learning about these issues from my clients and their communities. The Government of Canada has commissioned two major reports on Indigenous issues in Canada: the Report of the Royal Commission on Aboriginal Peoples (1996) and the Final Report of the Truth and Reconciliation Commission of Canada (2015). Both reports have extensively and aptly identified issues facing Indigenous communities and peoples in Canada and put these issues in their historical context. The Truth and Reconciliation Commission’s Report issued 94 Calls to Action to “redress the legacy of residential schools and advance the process of Canadian reconciliation”.2 Now, the citizens and governments of Canada have the responsibility to put these Calls to Action into effect. The Truth and Reconciliation Commission has termed the effects of residential schools as constituting “cultural genocide”.3 Cultural genocide was defined by the Truth and Reconciliation Commission as “the destruction of those structures and practices that allow the group to continue as a group”.4 In 2015, the former Supreme Court of Canada Chief Justice, Beverley McLachlin, agreed with this assessment in a speech delivered during the fourth annual Pluralism Lecture of the Global Centre for Pluralism.5 Such crimes must be continually acknowledged and interrogated. In her chapter in this book, Melanie Altanian explains that retaining genocide (cultural or otherwise) in society’s memory is intrinsically valuable, since it displaces the perpetrator’s claim to existential superiority, and helps reassert the survivors’ legitimacy and self-respect. While the history of residential schools is too long and complex to do proper justice in this conclusion, I will attempt a brief overview of what is the largest stain on Canada’s conscience. The program of residential schools has its origins in European colonialism. Upon arriving in the lands now known as Canada, European settlers, and subsequently the British government, asserted control over Indigenous lands. This bare assertion of control was predicated on the concept of terra nullius and the Doctrine of Discovery. The notion of terra nullius was based on the false idea that the lands being claimed by the British government belonged to no one. 2  Truth and Reconciliation Commission of Canada, Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2015). 3   Truth and Reconciliation Commission of Canada, The Final Report of the Truth and Reconciliation Report, Vol. 1, at p. 3 [“TRC Report”]. 4  Ibid. 5  Beverly McLachlin, Reconciling Unity and Diversity in the Modern Era: Tolerance and Intolerance, at the Annual Pluralism Lecture 2015 (Global Centre for Pluralism) (published May 28, 2015) at p. 7.

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The British government argued that the Indigenous people simply occupied land, rather than owned it, using Euro-centric notions of property ownership to justify this reasoning, while at the same time denying the unique and collective nature of their Aboriginal title.6 Second, the Doctrine of Discovery was premised on Christian doctrines at the time that posited two main ideas: 1) Christian nations had the right to colonize lands that they “discovered” as long as they converted the Indigenous populations, and 2) the Europeans were bringing the benefits of civilization to the “heathen”.7 Mixed with the rising ideology of nationalism in the 19th century, the concept of terra nullius and the Doctrine of Discovery laid the ideological groundwork for subsequent colonial governments to justify human rights abuses towards Indigenous populations. In 1876, the Canadian government passed the Indian Act.8 With this, the Canadian government unleashed a malevolent combination of cynical nationalism and misguided religious zeal onto Indigenous communities and peoples. In addition to a wide array of repressive government powers towards Indigenous people,9 the Indian Act required the government to provide Indigenous youth with an education and to assimilate them into “Canadian” society. The goal of this education, in the words of Canada’s first Prime Minister, Sir John A. McDonald, was to “take the Indian out of the child”.10 This program was more than education. It was part of an intentional agenda of cultural genocide by the Canadian government. In 1883, the Canadian government opened the Battleford Residential School. This was a landmark, as up until this point, residential schools had mainly been an initiative of the Catholic Church in Canada.11 However, from 1883, the residential schools were mainly funded by the government of Canada, even if run by churches. By 1930, there were eighty residential schools in operation across

6  T RC Report, Vol. 1, at pp. 17–18. 7  I bid. at p. 15. 8  A  n Act to amend and consolidate the laws respecting Indians, S.C. 1876, c. 18 [“The Indian Act”]. 9  For example, the Indian Act and related legislation at various times forbid “Indians” from hiring lawyers without the approval of the Crown (s. An Act to amend the Indian Act, S.C. 1927, c. 32, s. 6 amending The Indian Act, RSC 1906, c 81, s 149A); banned the Potlatch and Sundance and other spiritually and culturally significant ceremonies (An Act further to amend ‘the Indian Act, 1880, S.C. 1884, c. 27, s. 3); and barred “Indians” from voting (see Dominion Elections Act, S.C. 1920, c. 46, s. 29(1)). 10  Beverly McLachlin, Reconciling Unity and Diversity in the Modern Era: Tolerance and Intolerance, at the Annual Pluralism Lecture 2015 (Global Centre for Pluralism) (published May 28, 2015) at p. 7. 11  T RC Report, Vol. 1, at pp. 161.

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the country.12 The last closed in 1996.13 Approximately 150,000 First Nation, Métis, and Inuit students passed through the residential schooling system, about 80,000 of whom were alive in 2015. Under the Indian Residential Schools Settlement Agreement, the Canadian government provided compensation to students who attended 139 residential schools and residences. This settlement led to the first of two apologies (2008 and 2017) that were given by the federal government to the survivors of residential schools.14 Residential schools were part of a broader, intentional set of policies by the Canadian government to eliminate Indigenous culture and traditions. Indigenous children were involuntarily taken from their families. The children in residential schools were forbidden from speaking their own languages or observing their cultural and spiritual practices. Further, residential schooling staff would denigrate and belittle these languages and practices in an intentional effort to shame Indigenous children and alienate them from their communities. Residential schools were rife with physical and sexual abuse by teachers towards Indigenous students. Tuberculosis was rampant. The students led lonely lives in these residential schools, with little supervision, draconian discipline, poor living conditions, and scarce provision of food. This system took children away from their parents, often separated siblings, and disrupted the transfer of cultural knowledge that had developed since time immemorial. The adverse effects of residential schools have been transferred to subsequent generations of residential school survivors. During the course of my work with Indigenous leaders in Canada, I’ve heard countless accounts of children being apprehended and taken to residential schools without the knowledge of their families. Equally common is the related trauma to subsequent generations of survivors, who were raised by parents who were subject to abuse and who had limited or no exposure to their own parents. Indigenous peoples in Canada have lost not only members of their families, but also parts of their culture, languages, and traditions. Indigenous people continually face systemic barriers; the poverty rate among Indigenous youth is more than double that of nonIndigenous youth.15 Twenty-five percent of the incarcerated population is First Nations, Métis, and Inuit, yet only three percent of the Canadian population 12  T RC Report, Vol. 1 at p. 4. 13  Truth and Reconciliation Commission of Canada, “Residential School Locations”, http:// www.trc.ca/websites/trcinstitution/index.php?p=12 [accessed July 6, 2018]. 14  Ibid. See also Indian Residential Schools Settlement . 15  Supra, Legacy, at 5.

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identify as First Nations, Métis, or Inuit.16 These statistics are directly linked to the trauma, abuse, and stolen identities of the residential school era. From an intergenerational corrective justice perspective, Douglas Sanderson has argued that the single greatest wrong of residential schools, and other colonial policies of British and Canadian governments has been the “suppression of institutions in Indigenous communities that positively affirm Indigenous values, cultures, and identities”.17 By “institutions”, Sanderson means the “organizational threads such as political arrangements, education, language, spiritual practices, traditional medicines, clan arrangements, and other cultural values” of Indigenous peoples. In Sanderson’s view, replacing stolen Indigenous land is not sufficient. He uses a hypothetical example of “Farmer John” to illustrate this point. The expropriation of Farmer John’s land for a government project would be stressful to Farmer John, but he would ultimately be compensated, find new land, and likely be able to carry on as before. This continuity is “facilitated by a whole host of institutions that make Farmer John’s life comprehensible and meaningful to him”.18 Sanderson contrasts this with the situation of Indigenous peoples and communities following the policies of colonialism and residential schools. Not only was their land taken, the institutions that could have allowed for continuity in meaning and expectations for actions have been suppressed for over 100 years. So what is the way forward? The Truth and Reconciliation Commission’s Calls to Action include many helpful proposals to help Indigenous institutions flourish, such as providing more funding and legislative space for Aboriginal language and culture (Calls to Action 13 to 17), reconciliation between Aboriginal and Crown legal orders (Call to Action 45(iv)), and the development of Indigenous law institutes (Call to Action 50). These Calls to Action provide guidance, but we need to turn these into concrete action. Professor Sanderson has made intriguing proposals that can help guide Indigenous and non-Indigenous Canadians towards true reconciliation 16  Statistics Canada, Adult Correctional Statistics Canada 2014/2015 Catalogue No 85-002-x (Ottawa: Statistics Canada, 2016). 17  Douglas Sanderson, Associate Professor at the University of Toronto, Faculty of Law, was central in helping me begin to understand the need for inter-generational justice for Indigenous peoples and communities in Canada. He was gracious enough to make to for an interview and discuss this topic. See Douglas Sanderson, “Redressing the Right Wrong” (2012), 62 University of Toronto Law Journal 93–132 [“Redressing the Right Wrong”]. See also Douglas Sanderson’s critique of the concept of “supersession” in the context of historical injustice: Douglas Sanderson, “Against Supersession” (2011), Canadian Journal of Law and Jurisprudence (January 2011) 155–182. 18  Redressing the Right Wrong at pp. 111–112.

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and corrective justice for past wrongs. I will attempt to recount several of Sanderson’s many ideas in this short conclusion.19 Providing taxation powers to Indigenous nations would give them the financial ability and incentives to choose the “economic, social, and environmental world around them”.20 Similarly, sovereign wealth funds have the power to diversify portfolios and transfer wealth from one generation to another, as Xenia Karametaxas explains in her chapter to this book. Indigenous peoples deserve this and other financial tools to build sustainable, intergenerational solutions for their communities. Such financial empowerment would help Indigenous nations build capacity so that they can begin rebuilding the political and social institutions that have been stymied by settler society. The idea is to allow Indigenous nations to choose how they wish to relate their traditions and culture to Canadian settler society. Although all non-Indigenous Canadians are relative newcomers to Canada, social and economic distributions have systemically given these immigrants disproportionate control over the lives of Indigenous Canadians. Against this background and with the Canadian context in mind, it is interesting to read Philip Hanke’s chapter on the role of international migration in resource distribution among generations. Canadian governments and society should provide space for Indigenous traditions and ceremonies to have meaning in a modern context. One aspect of this is to allow Indigenous nations to attach legal significance to traditions and ceremonies. In his chapter to this book, Roberto Claros explains that cultural heritage law and intergenerational justice are inextricably linked, and can reinforce one another. Another proposal by Sanderson is to allow both Indigenous and non-Indigenous people to access Indigenous modes of life, health care, and welfare, if they so choose. This shows mutual respect for different ways of life, and puts Indigenous and non-Indigenous institutions on an equal footing. Lastly, non-Indigenous Canadians should send their best and brightest to learn from Indigenous institutions. For years, Indigenous nations have sent their talented youth to Canadian universities and institutions. It is time for the rest of us to reciprocate the respect and the Editors of this book are proud to have been able to donate the anticipated royalties of this book to the Haida Gwaii Mentor-Apprentice Program. Through this program, language learners who are Indigenous or non-Indigenous are paired with speakers of endangered 19  The following ideas are from an interview with Mr. Sanderson conducted on February 27, 2018 via telephone. 20  Redressing the Right Wrong at p. 119.

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Indigenous languages (often an Indigenous elder), creating an immersion environment in homes and on the land. The issues of inter-generational justice in the context of colonialism and residential schools are pressing and complex. Indigenous institutions developed over millennia, but were repressed, and even dismantled, within the course of a few centuries. There is no government-led apology, finding of a Commission, or combination of actions that will allow for a quick recovery. Perhaps the best strategy going forward is to forego prescriptive policies and move beyond fashionable talk of “reconciliation” without action. We must now move beyond words and provide space for Indigenous institutions to thrive again organically. Acknowledgements The author would like to thank Douglas Sanderson for his invaluable guidance and to acknowledge the important contributions of Roark Lewis without whose contributions this Chapter would not have been possible. Additionally the author acknowledges the contributions of Monika Wilson and Graham May of Miller Thomson as well as the research and personal insights provided on this topic by Amanda Richards and Joey Levesque of the Indigenous Legal Studies Program at the University of British Columbia.

Chapter 14

Epilogue: Voices of the Future for Sustainability Jona David My name is Jona David and I am ten years old. I am a citizen of Switzerland, the UK, Canada and Germany, and a pupil in King’s College School, Cambridge. My first few books have been published in six languages by the United Nations and the Voices of Future Generations Children’s Book Series. It is amazingly exciting. The Epic Eco-Inventions is the first adventure of an Eco-Inventor Boy and his little brother, who live on a lake in a very green town. At first, the EcoInventor Boy hides his work in a secret lab, worried that others will laugh at him. But after defeating a bully who tries to threaten his little brother and steal his inventions, he gains the courage to share his eco-science and technology innovations with the world, towards the future we want. The Great Green Vine Invention, a second story, starts in a crisis, as unsustainable fossil fuels and rubbish are overflowing the Eco-Inventor Boy’s green town. Together with a new pupil, the Little Brother discovers a set of secret greenhouses, filled with amazing plant inventions. The Eco-Inventor Boy has turned to botany. Unfortunately, one experiment is interrupted in their visit, and a Great Green Vine – invented to eat rubbish – starts to munch up highways, power plants and other buildings too. Luckily, the children manage to save the day. I have been really fortunate to be able to travel to different cities and even countries, in order to share my stories with others who are interested. We have even hosted a UN Children’s Summit on the World’s Sustainable Development Goals in New York, as part of the UN General Assembly meetings. In our books, events and in presentations around the world, all of us Child Authors of the Voices of Future Generations Series are trying to speak out for our rights, for inter-generational equity, for the world’s Sustainable Development Goals – really, for the Future We Want. My own stories are about protecting and restoring our environment, promoting eco-education and awareness, and using science and technology wisely. I am also trying to say that it is important to have the courage to be ourselves, and to stand up for each other. Not just for children today, but for future generations of children.

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World leaders agree with us. The UN Convention on the Rights of the Child has celebrated its 25th Anniversary. It is a global agreement for all children that our rights to a healthy environment, to food and water, and to education will be respected. I spoke for children at the United Nations in New York, where countries came together to commit to a new set of Sustainable Development Goals. All of us children in the Children’s Summit promised to become Child Ambassadors for the new Global Sustainable Development Goals. These Goals are very important. For example, in Goal 1, all the countries agree to end poverty in all its forms everywhere. In Goal 10, they commit to reduce inequality within and among countries. In Goal 13, they promise to take urgent action to combat climate change and its impacts. And in Goal 15, they commit to reduce the degradation of natural habitats and to halt the loss of biodiversity. Sustainability is crucial for the survival of humanity and our Earth. For all of us, especially children, learning to live sustainably is the difference between a terrible global nightmare and real hope for the future. If we carry on consuming and polluting, our ecosystems and all our resources will burn out. If highways, rubbish and oil spills take over, animals and plants will be miserable and ill. If we let climate change get worse, many people will be hurt or even die in floods and typhoons. After all these global promises – it would be terrible if rather than implementing the SDGs, we keep going backwards, doing the exact opposite. And today, children can help. In the Children’s Declaration from our Summit, we asked everyone to recognise that ‘the decisions the world makes today will impact and define our future, and … this makes us principal stakeholders.’ And we pledged to be ‘the voices of future generations… current global citizens who must play a part in decision-making.’ There is a lot that we can all do to defend the needs and interests of future generations. Here are three ideas, just part of getting started! First, our schools and communities can adopt new eco-science and technologies, for more sustainable education. This can spark children to become interested in eco-science for the rest of our lives, and to learn how to use it in our everyday lives. Schools can pilot renewable energy with their own wind mills or solar panels. Clubs can use sustainable transport with hybrid buses or bikes. We can all re-use absolutely everything (and try to avoid stuff that cannot be recycled). We can appoint local Guardians for Future Generations, who help us to deliver the SDGs in each community.

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Second, we can work together to make our whole economy greener. This way, when children grow up, our jobs will help instead of hurting the environment. In some countries, kids are already forming youth cooperatives or even our own small companies. We can become global Climate Justice Ambassadors, making pledges to plant billions of trees. Trees absorb CO2 emissions, provide habitat for animals and biodiversity, and also prevent floods and erosion. We can all work together to fight climate change and to ensure people respect our environment, like Wangari Maathai did with the Green Belt Movement that planted 51 million trees in Kenya, winning the Nobel Peace Prize. Third, children (and people like you) can become advocates for future generations, worldwide. The UN Convention on the Rights of the Child promises us the right to a voice, to be heard and to be part of decision-making, like Nobel winner Malala Yousafzai did when she was 11. The CRC also guarantees our educational and environmental rights, and we can raise awareness to make these things happen on the ground. Even as children, we can blog, use new media to network with others, make posters, start our own radio shows or even write our own books. Every community and country can come together to agree a Sustainable Living Charter fit for our own ecosystems, then report online for all to see. Networks can inspire each other. National and global Future Generations Guardians can be chosen, honouring those who live up to their Charters. When it comes to the Earth, our own survival, and the survival of all future generations is at stake. It’s urgent. Children’s voices can tell others about problems. But most importantly, we can also become part of many solutions, on the ground, all over the world.

Index 2030 Agenda 54, 63 all-affected principle 33–34, 37 n. 16, 40–42, 44, 47, 50 arbitration 6, 19, 20–22, 69 n. 10, 79 n. 44, 80 n. 47, 81 n. 51, 180 n. 8, 192–193 n. 5, 198, 200–205, 207 biodiversity vii, ix, 5, 12, 41 n. 34, 58, 70–73 n. 23, 83–86, 216–217 Brown Weiss, Edith xiii, 26, 32, 53, 68 nn. 4, 6, 72 n. 20, 90–91 n. 1, 127 n. 49, 196, 197 n. 18 Brundtland Report 12, 52, 63, 67–68 n. 3, 93, 94 n. 12, 100, 106, 120, 121 n. 26 carbon dioxide viii, 71, 73, 116–117 n. 10, 123 n. 32 children vii, 1–3, 7, 12, 35–36, 50, 52, 156, 163, 167 n. 8, 170, 172, 174–176, 211, 215–217 climate change vii–x, 3, 5, 12, 33, 50, 54, 71, 74 n. 28, 86, 88 n. 78, 91 n. 1, 109–110 n. 5, 115–119 n. 17, 121–123 n. 32, 125 n. 44–129 n. 62, 132 nn. 69, 71, 135–139, 142, 178, 208, 216, 217 climate change mitigation 5, 109, 125 n. 44, 126, 137 Climate Justice 5, 115, 118, 136, 138, 146, 217 common concern ix, 5, 22, 67, 69–70, 74 n. 28, 84–89, 118 Conservation vii, 5, 33, 41 n. 34, 68–70, 74, 75 n. 32, 77, 82, 83, 86–88 n. 78, 98 n. 26, 100–101, 106, 120, 196–197, 199–201, 206 COP 21 115–116 Corporate Social Responsibility (CSR) 140, 142–147, 184, 187 cultural heritage vi, ix, 6, 57, 157, 192–207, 213 Democracy 4, 32, 33, 37 n. 16, 40–42, 44, 46, 50, 62 n. 21, 139, 151, 185 n. 37 demographics 6, 163–164, 170 distributive justice iv, 12, 14 n. 9, 18, 22 n. 40, 23, 25–26, 29, 30–31, 74 n. 26, 92 n. 4, 130, 135–137

ecosystem 3, 39, 53, 58, 60, 69, 71–73, 82, 85–86, 90, 93 n. 5, 97, 100–101, 112, 114, 216–217 equity vii–x, 3–5, 9–32, 53, 55, 56, 62, 68–70, 72–74, 76, 85–86, 89–98, 100, 102, 107, 120 n. 23, 127–129, 131, 133, 136, 139–140, 146, 151–152, 162, 179–180 n. 7, 182–183, 185, 191, 196–197 nn. 18, 20, 208, 215 Ethics 14, 33, 40–41, 91 n. 1, 128 n. 56, 143 nn. 10, 13, 151–152 n. 5, 181 n. 16, 190 European Union 5, 76 n. 37, 92, 109–110 n. 10, 112, 116, 125 n. 44, 165, 169 future generations vii–ix, 2–7, 11–12, 26–27, 31–63, 68–69, 72, 74, 80–81, 84–86, 88 n. 77, 90–91 nn. 1, 2, 93–108, 112 n. 20, 118, 120, 127, 131, 133, 137, 139–140, 146, 153, 157, 163–166, 168, 171, 177, 181–183, 191, 196–197, 215–217 General Assembly 12 n. 4, 22 n. 42, 26 nn. 51, 52, 32 n. 1, 54 n. 7, 61 n. 20, 62, 71 n. 16, 76, 79 n. 44, 80 n. 49, 81, 83, 93–96 n. 21, 99 n. 27, 184, 215 Genocide ix, 6, 12, 151–153, 156–162, 208–210 global warming viii, 73, 85, 123 n. 32, 127, 129, 131 Guardian for Future Generations 4, 55, 60–61, 139 human rights vii, 4, 12–13, 18–19 n. 23, 22–24, 30, 39, 54, 57 n. 12, 68 n. 6, 90–91 n. 1, 94, 100 n. 33, 151, 182, 184, 186–187, 189–191, 195 n. 13–197, 210 injustice 3, 6, 18, 26, 134, 151–162, 164–165, 171, 208, 212 n. 17 institutional representation 47 intergenerational equity vii–x, 3–5, 9, 12, 26–27, 29, 31–32, 53, 55–56, 68–69, 72 n. 20, 89, 90 n. 1, 91–98, 100, 102, 107, 120 n. 23, 127, 129 n. 63, 140, 146, 151, 162, 179, 182 n. 20, 183, 185, 191, 196 nn. 14, 16, 197 nn. 18, 20, 208

220 Intergenerational Justice ix, 4, 6, 7, 11, 12, 13, 30, 32–34, 36, 39 nn. 21, 25, 40 n. 26–41 nn. 32, 35, 44, 50–52, 55, 59, 60, 67–70, 80–81, 109, 131, 133, 137–138, 151–152, 157 n. 18, 163–165, 170, 178–179, 183, 193, 195–197, 199, 202, 206, 207, 208, 213 international community 23, 55, 63, 76, 78, 81, 85–88, 94, 96, 128 International Law Association 22, 26, 95 n. 13, 98 n. 25, 99 International Law Commission 22, 98, 99 nn. 27, 29, 184 n. 33, 199 n. 27 International Water Law 5, 93, 96–98, 139 investment protection 193, 202–203, 205–207 jurisdiction 5, 30, 33, 42–43, 69–70, 73, 75–87, 97, 100 n. 33, 117–118, 121, 132, 134, 195, 198, 199 n. 28, 202–203 n. 42 Kyoto Protocol 115 nn. 1–2, 116, 119 n. 17, 122–123, 125–126, 131, 134 Marine Environment 5, 69–72, 74–78, 81–85, 87 Migration ix, 3, 6–7, 129, 160 n. 27, 163–178, 213 Millennium Development Goals 13, 140 moral(s) 14–16, 28, 33–38, 55, 91, 119, 144, 151, 157–158, 184, 196–197 natural resources vii, 11–13, 19, 22–24, 26, 29, 54, 57, 68, 70, 74–75, 78–81, 84 n. 63, 88 n. 77, 90, 93, 102–107, 113, 120, 124 n. 37, 131, 134, 136, 137, 183 non-discrimination 19, 204 non-identity problem 33–34, 36, 37 nn. 15–16, 50 ocean governance 5, 67, 69–70, 73, 87, 89, 146 Paris Agreement 5, 12, 115–117, 130 Political Representation 32–35 n. 12, 38 n. 19, 43–47, 49 n. 57, 50 pollution viii, 5, 69 n. 10, 70, 73, 77–78, 81, 85, 87–88, 90, 101, 124, 128, 132, 134–135, 139, 183

Index poverty 54, 93, 120, 133, 177, 211, 216 proportionality 18, 29, 87 proxy representation 4, 34, 44–50, 139 renewable 5–6, 99, 107 n. 61, 109–110, 112–114, 120, 139, 146, 216 right to development 12, 26, 90 n. 1, 95–96 Rio Declaration 12 n. 5, 55, 80 n. 50, 94 n. 13, 95–96, 99 n. 28, 119 n. 17 Santiago Principles 183 n. 23, 188–189 shareholders 141, 142 n. 7, 144, 180 n. 10, 181 n. 15, 182, 185 Sovereign Wealth Funds ix, 6, 179, 180 nn. 5–10, 181 nn. 11, 12, 16, 182 n. 19, 183 nn. 22–24, 185–186 n. 39, 188, 190 nn. 60, 63, 191 n. 67, 213 Sovereignty 5, 23, 25–27, 31, 40 n. 27, 42–43, 69–70, 74, 75 n. 31, 79–80, 81 n. 52, 84–86, 88 nn. 77, 78, 118, 134, 139, 146 stakeholders 56, 117, 120, 140, 142, 144–145, 182, 216 sustainable development 4–5, 12–13, 26–27, 29, 31–32, 38, 50–55, 57–58, 61–63, 67–68, 70, 80–81, 84, 88–90, 93–95, 99 n. 28, 100–106, 109, 112–114, 118, 120–121, 127, 133, 136–137, 139–140, 182, 189, 191, 202, 205, 208, 215–216 Sustainable Development Goals 13, 53–54, 100 n. 30, 120, 133, 137, 140, 215–216 UN Global Compact 186–188, 190 United Nations Convention on Biodiversity  12 United Nations Convention on the Law of the Sea 69, 71 n. 16, 74, 76 n. 36, 77 n. 38 United Nations Framework Convention on Climate Change ix, 12 n. 3, 86 n. 73, 115, 119 n. 17, 122 United Nations Guiding Principles on Business and Human Rights 186 United Nations Principles for Responsible Investment 186 welfare 25–26, 36 n. 14, 42, 112 n. 20, 137, 164, 166–167, 169–171, 213