A Rule of Law Revolution in Future Generations Litigation – Intergenerational Equity and the Rule of Law in the Anthropocene

By Katalin Sulyok[1]

This article is a shortened version of the re:constitution working paper, which was originally published by the Forum Transregionale Studien in 2023 and can be read here.

The rule of law traditionally refers to an ideal as to how governments should treat and regulate the people living under their rule and power at any given moment. Due to this tacit requirement of contemporaneity, the rule of law discourse has paid little attention to the implications of rule of law obligations in an intergenerational context; that is, how these requirements can be invoked to hold governments accountable for arbitrarily impairing the rights and interests of the governed in the foreseeable future. This paper will dissect the interaction between the rule of law and intergenerational equity, with a focus on the practice of domestic environmental and climate litigation. It will propose a rule of law-based framework to explore justiciable obligations of states owed to future generations, as they have been emerging in a recent wave of domestic case-law. Lastly, it will utilise this framework to reveal the shared dynamics and anatomy of such future generations litigation.

There is a growing body of cases before national courts, where plaintiffs demand protection for the interests of future generations against the government’s action (or omission) concerning environmental and climate measures and policies. As such, their claims essentially correspond to the intergenerational dimensions of traditional rule of law guarantees. By analysing the doctrinal bases and argumentative solutions of the judicial inquiry in these cases, this study aims to show how courts can reinterpret such safeguards in an intertemporal way, using them as a vehicle to remedy the short-termist bias of the democratic governance and policy-making. This survey seeks to promote the allocation of responsibility for causing harm to future generations and long-term environmental assets by showing actionable legal bases on which intergenerational equity can be enforced through the judicial system under various legal settings. The judicial recognition of these is understood here as an essential corrective mechanism for charting a sustainable path in the Anthropocene for present and future generations.

Intergenerational equity embodies the ideal that long-term interests of future generations are taken into due account in the decisions made by the present generation and, thus, the latter does not compromise the former’s ability to meet their own needs.[2] Even though the legal framework of intergenerational equity, as developed by Edith Brown Weiss, originally suggested “planetary obligations” of a normative character for present-day decision-makers,[3] the concept has been deemed as a non-binding principle in international judicial practice;[4] and was exiled to preambular references in international treaties[5] and symbolic formulations in national constitutions.[6] As a result, the idea of intergenerational equity has long appeared to have a strong moral appeal but with limited recognition in law.[7] However, the tide seems to have turned. A recent wave of environmental and climate change litigation decisions of national courts suggests that intergenerational equity has started to develop normative ‘teeth’. Infringing upon the foundations of human life and stable societies in the future appears no longer to be at the full discretion of present-day decision-makers. Courts in a growing number of jurisdictions have started to afford protection to the basic needs of future generations creatively, through placing binding constraints on states’ ability to pursue myopic policies that arbitrarily impose risks and likely harm on posterity. This research is primarily concerned with this body of case-law and investigates how courts can legitimately inject long-termism into environmental laws and policy-making through enforcing actionable rule of law guarantees.

The case-law analysis departs from exploring the broader context in which the rule of law interacts with the environmental and climate crises in the Anthropocene epoch, when humanity has become the dominant force impacting the Earth system. It first considers the role that democracy and the rule of law played in elevating our socio-economic structure to be a planetary-shaping force, which is now able to determine the future of the entire biosphere, including the future of mankind. The paper then proposes a reinterpretation of rule of law guarantees to remedy intergenerational grievances and thereby rectifies democracy’s short-termist bias.

As to its methodology, this analysis examines proceedings in which plaintiffs seek judicial protection for long-term interests against States’ short-termist policies. A dynamically developing subset of these cases is taken up by climate change litigation, where claimants seek to compel the legislature to adopt more ambitious greenhouse gas (GHG) reduction targets before the court. The other subset belongs to the category of environmental litigation, where claimants typically aim to halt deforestation and large-scale pollution of natural resources. For this study, these proceedings will be referred to collectively as future generations litigation. Even though these two subtypes are often examined separately in the literature, almost creating a specialised field for climate change litigation, this study will purposefully adopt a wider scope and include both types for analytic reasons.

This research contends that future generations lawsuits, despite their diverse legal nature, do have essentially the same anatomy. First, these cases manifest structurally similar attempts at challenging the prevailing short-termist paradigm of environmental law and policy-making; and second, courts face the same doctrinal dilemmas in articulating intergenerational obligations for States. Indeed, future generations lawsuits have diverse legal bases, ranging from international human rights law to constitutions and statutory law, and entertain diverse legal doctrines, such as environmental human rights, rights of Nature, children’s rights, and trusteeship or guardianship obligations over natural resources. Nevertheless, these proceedings all create actionable intergenerational obligations for States and, as will be argued below, the legal demands of plaintiffs in such cases all appeal to the same rule of law guarantees. These structural similarities warrant including both types of litigation in the object of this study.

It needs to be stated clearly at the outset that this paper uses the term rule of law in a normative sense, as opposed to more broad understandings of the concept, and relies on the normative framework developed by the Venice Commission, which distinguishes five main pillars,[8] namely (i) respect for human rights, (ii) the quality of law requirements, (iii) prohibition of arbitrary use of governmental powers, (iv) non-discrimination of future generations, and (v) access to justice. This research will map the extent to and interpretative ways in which domestic courts enforce these rule of law obligations to protect the needs of future generations on various substantive legal bases. It will argue that future generations litigation attests a ‘revolution’ in the interpretation and intertemporal application of normative rule of law guarantees.

This paper concludes by appraising the more systemic implications of these revolutionary judicial decisions for the paradigm of environmental governance. In the current system, States enjoy almost unfettered discretion in setting their environmental and climate policies, and their freedom of action is only constrained by obligations they willingly undertake under international or national laws. However, the effectiveness of self-imposed constraints is considerably capped by the short-termist bias of democratic decision-making. It will be argued that successful future generations litigation, where courts extend the temporal scope of rule of law guarantees in order to protect the long-term interest, may help achieve a transformative change in the paradigm of environmental governance.

The analysis proceeds as follows. Section 2 explores the interrelations between the ideal of the rule of law and the Anthropocene, when humanity’s proximate future is overshadowed by a looming ecological and climate catastrophe. It will show how the rule of law accommodated human conduct, which created massive, even existential climate and ecological risks for future generations, and will propose a way in which the rule of law can be reconfigured normatively to remedy these failures and govern humanity into a safer, and intergenerationally more equitable, path. Section 3 describes the doctrinal framework of this analysis, by setting out a rule of law-based model of intergenerational state obligations. It also defines the normative content for the intergenerational dimension of traditional rule of law guarantees. Section 4 then turns to the case-law and examines how these intertemporal guarantees play out in the national judicial practice in climate and environmental cases. Finally, Section 5 concludes by assessing the implications of the successful future generations litigation for the paradigm of environmental and climate governance.

Click here to read the full working paper.

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[1] Dr Katalin Sulyok LL.M. (Harvard), Ph.D., Assistant Professor in International and Environmental Law, Eötvös ELTE University (Budapest). Re:constitution fellow 2021/2022. E-mail: sulyok.katalin@ajk.elte.hu.

[2] For a commonly used formulation of the principle see Article 4 of Global Pact for the Environment, draft text available at https://globalpactenvironment.org/uploads/White-paper-Global-pact-for-the-environment.pdf (last accessed 26 January 2023).

[3] Edith Brown Weiss, ‘In Fairness to Future Generations’ (1990) 32 Environment 6, 10.

[4] The International Court of Justice has thus far remained reluctant to rely on this principle in its judgments, and only certain international judges, most notably Judge Weeramantry and Judge Cançado Trindade elaborated on its meaning in their separate or dissenting opinions. In the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) case, for instance, Judge Weeramantry dedicated a section to ‘the concept of intergenerational rights’ and argued that ‘the Court must regard itself as a trustee of those rights’ (at 342). In the 1997 Gabcikovo-Nagymaros dispute (Hungary/Slovakia), Judge Weeramantry’s Separate Opinion discusses ‘the principle of inter-generational rights’ and ‘the imperative of balancing the needs of the present generation with those of posterity’ (at 107).

[5] UN Secretary General Ban Ki-moon’s report lists more than 20 conventions mentioning future generations, most of them in their preamble, see: Intergenerational solidarity and the needs of future generations – Report of the Secretary-General, A/68/322 [2013].

[6] For a list of relevant provisions see: James R. May and Erin Daly, Global Environmental Constitutionalism (Cambridge University Press 2015) 329–342.

[7] Randall S Abate, Climate Change and the Voiceless- Protecting Future Generations, Wildlife, and Natural Resources (Cambridge University Press 2019) 45.

[8] Venice Commission of the Council of Europe: Rule of Law Checklist, 2016. CDL-AD(2016)007-e, Rule of Law Checklist, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016), available at https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)007-e (last accessed 26 January 2023).

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About the author

Dr. Katalin Sulyok is an Assistant Professor at ELTE University, Budapest. She holds a Ph.D. in law, a Bachelor’s degree in Biology and earned an LL.M. degree from Harvard Law School as a Fulbright scholar. Her main research areas concern international, EU and domestic environmental law issues. Her English-language PhD thesis was awarded the Henry Wheaton (J.B.Scott) Prize by the Institut de droit international given to the best international environmental law dissertation written in English, German, French, Italian or Spanish in 2018-2019. Her thesis has been published as a monograph entitled “Science and Judicial Reasoning: The Legitimacy of International Environmental Adjudication” in 2021 by Cambridge University Press. Dr. Sulyok has been a Leibniz Fellow at the Max Planck Institute in Heidelberg, a Visiting Researcher at the Lauterpacht Centre, and a Visiting Scholar in the Center for the Environment, Energy and Natural Resource Governance of Cambridge University. Dr. Sulyok has also been working as a chief legal advisor to the Hungarian Ombudsman for Future Generations since 2014. She was a 2021/2022 re:constitution Fellow

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Citation: Katilin Sulyok, A Rule of Law Revolution in Future Generations Litigation: Intergenerational Equity and the Rule of Law in the Anthropocene, in: TRAFO – Blog for Transregional Research, 19.09.2023, https://trafo.hypotheses.org/48778

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