The Global Challenge for the Courts: Enforcing Intergenerational Equity or Lex Naturalis
Jean-Marie Hullot on Flickr and Jmhullot on Commons, CC BY-SA 2.0, via Wikimedia Commons
No single generation claims tyranny over past generations or future ones.
Edmund Burke
Summary:
By focusing on the preservation of current life and ecologies on this planet, the general principle of Lex Naturalis as self-preservation—based on Thomas Hobbes’s basic “Law of Nature”-is proposed here as the first element and minimal legal requirement of Intergenerational Equity (IE). In turn, IE is a general principle of law found in domestic and international jurisprudence. Due to the existential and growing threat of global climate change, the legal enforcement by the courts of IE or Lex Naturalis which legally requires the preservation of the present generations of life on Earth, is an essential precondition of legitimate state sovereignty as well as the rule of law.
INTRODUCTION: THE LOOMING SIXTH EXTINCTION EVENT?
Due largely to climate change, scientists say that life on this planet is facing its sixth massive extinction event; the causes for the unfolding 6th Extinction event are many, including overpopulation, deforestation, pollution as well as climate change. In particular, states and societies still pump up to 40 billion tons of CO2 into the global atmosphere yearly; given this ongoing pollution that helps to trap heat in the atmosphere, there is little or nothing being done to prevent the planet Earth from heating up to uninhabitable levels;1 so, the evidence and ensuing danger is real, alarming and growing.2 This presents an existential threat even to the existing generations of life—including human beings and the Earth’s biosphere– currently living in these unprecedented and perilous times.
Such looming dangers and destruction of life on Earth and life-sustaining ecologies grossly violate the basic legal general principle of intergenerational equity (IE). Recognized by many state constitutions, legislation and international customary law, 3IE requires that we the living leave enough of the Earth’s ecologies and resources intact to ensure that future generations can fulfill their needs, if not flourish, as well. 4 Yet, due to the growing reality of climate change and the ongoing destruction of essential Earth’s ecologies, the possibility that we will bequeath robust earth and global ecology as we found it to future generations is increasingly difficult, if not becoming impossible, due to the ravenous consumption and materialistic gluttony of past and present generations. Such rapacious exploitation of the Earth’s resources, especially by the developed or industrialized states, 5 now threatens even current living generations with the growing threat of the Sixth Extinction event, also called the Holocene Extinction.6 This existential danger7 can no longer simply be rationalized, dismissed or even ignored by the courts throughout the world.
So, if current materialistic consumption and the ensuing destruction of the Earth’s ecologies continue, then the possibility of fulfilling the legal requirements of IE for future generations will become impossible to obtain. As the 2022 IPCC report for policymakers states, it is critical to understand “the increasingly severe, interconnected and often irreversible impacts of climate change on ecosystems, biodiversity, and human systems.”8
Yet, a key purpose of IE is for current living generations of human beings to preserve and perpetuate the life chances of the nation’s future generations.9 In this respect, it is important to note that the word “nation” comes from the Latin word “natio” meaning birth; the state itself is not a natural fact. Thus, the nation is the living reality that gives birth to ongoing life upon which the social construction of the ensuing state depends for its raison d’etre.
Even so, nation-states within the current international legal order are fundamentally failing in their basic lawful duty to ensure the preservation or perpetuation of their people or the Earth’s ecosystems and biodiversity upon which their very lives depend; in particular, modern nation-states, especially the developed or industrialized ones, are continually failing to protect us from the still legally sanctioned activities initiated or within their jurisdictions that are causing potentially irreversible global climate change,10 thus threatening our self-preservation as individuals, societies, and even as a species.
In view of this, Lex Naturalis or the Law of Nature, which seeks to preserve present life on planet Earth, is proposed and developed here as a more minimal, partial yet more demanding legal principle derived from Intergenerational Equity (IE). We must first ensure the continual existence of current life on this planet before we can pass on any sort of ecological inheritance to future generations. In this regard, the English Philosopher Thomas Hobbes declared that self-preservation is the first Law of Nature, stating:
“A Law of Nature (Lex Naturalis) is a precept or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life or taketh away the means of preserving the same.”11
Thomas Hobbes
In short, self-preservation is a fundamental instinct and duty of living sapient beings. For Hobbes, such self-preservation includes not only the individual but the necessity of securing the “means of preserving the same.” As living beings, we are inevitably and intimately connected to the natural world – hereafter referred to generally as nature – ranging from local ecologies to vast global commons necessary for life. So, the word “Nature” as used here includes the totality of global, regional and local ecologies, biodiversity, species and the global commons—including the Earth’s atmosphere12— upon which human beings and an entire nation fundamentally rely for our mere existence, as your next breath of air attests.
If the laws of the state can’t ensure our self-preservation as a nation or as a species, especially from the unprecedented yet largely preventable threat of accelerating climate change, then the state and the rule of law have fundamentally failed. 13 If we ignore this sin qua non-Law of Nature –self-preservation–then we may well perish due to climate change brought on largely by large-scale human activities, such as the extraction and burning of fossil fuels, that are still legally sanctioned and legitimated in state jurisdictions. Our future fate may then find us witnessing traffic law courts merely passing out convictions for parking or speeding tickets till the last day.
To help prevent this, Lex Naturalis or the Law of Nature requires, first and foremost, that international, regional, national, or indigenous courts enforce, when appropriate, the absolute minimum legal requirements of IE and thus help preserve current life–the living generations– as well as all the ecological means necessary for survival including the global commons and Earth’s ecologies; the latter are all absolutely critical in order to support and sustain life on this planet. As such, ensuring the self-preservation of current living generations is the primary yet minimal legal duty of the sovereign state and its courts governed by the rule of law in the Anthropocene Age.
Conversely, no state has the authority or power to legally permit or legitimate commercial or private activities within its jurisdiction that now increasingly threaten the self-preservation of the nation or the Earth’s ecologies that make national and individual life possible. If a state does not acknowledge and enforce its supreme duty of ensuring the self-preservation of its nation and nature, then it simply becomes a lawless Leviathan that has no fundamental inherent right to create courts or enjoy national sovereignty; it becomes a dangerous pariah, or pirate state, a predatory political entity that seeks to exercise the power to devour and destroy without recognizing its legal and basic duty to preserve and perpetuate the national life of its people and the nature or eco-systems upon which the nation as a whole fundamentally needs and requires simply to exist.
Unfortunately, the continuing existence of the “present generation” always seems to be largely assumed and implicit in discussions or decisions on IE; instead, the focus of IE research is mostly on the relationship between the present and future generations and the legal obligations that the living have to the future.14 Yet, given accelerating global climate change, the assumption concerning the unquestioned survival of the present generation is, at the very least, problematic. Simply stated, if we fail to preserve current life on this planet, and we are presently failing to do so, then it becomes almost meaningless to speak of perpetuating life as well.15 There will be little or nothing for future generations to enjoy, let alone use to survive….
The Human Right to Life and Lex Naturalis as Self-Preservation:
The human right to life is akin to the inherent right to self-preservation. As recognized in international law and many domestic jurisdictions, all human beings have an inherent right to life. As stated in the International Covenant on Civil and Political Rights, “Every human being has the inherent right to life. This right shall be protected by law.”16 This echoes Article 3 of the Universal Declaration of Human Rights: “Everyone has the right to life, liberty and security of person.”17 The right to life is recognized in human rights conventions by various regional organizations as well.18
As such, self-preservation is the human right to life that is necessary and implicit within the context of the established law of IE. Up to now, the survival and self-preservation of current living generations have been largely presumed in any application of IE in court cases. So, the key point is that the current generations of living beings have rights to life too. Yet, this assumption concerning the survival of all or some of the current living generations is increasingly problematic as global climate change accelerates, leaving death and destruction in its wake.19
So, this essay will argue that both of the basic factual references in IE –the present generation as well as future ones- are crucial and contain significant legal duties and obligations. First, the word “intergenerational” articulates the responsibilities of the present living generations of human beings—and assumes that our own fate and future are preserved and even assured; due to global climate change, this assumption is now profoundly problematic. In particular, if current trends in the consumption of carbon-based fuels continue, young children living today, grandchildren or babies recently born will live in a profoundly different and increasingly uninhabitable world; people all over the world are already dying from increasing extreme weather events—such as increasingly large and deadly hurricanes, tsunamis, or tornadoes—wildfires, record-breaking droughts, and increases in ground-level temperatures.20 If this be doubted, just read tomorrow or next week’s headlines from around the world.
In short, the continual existence, well-being and normal life spans of present generations of life are now increasingly uncertain. This is the axiomatic origin of Lex Naturalis as an essential minimal element of IE. In short, we the currently living generation have the responsibility to pass on the Earth to future generations as it was passed on to us.21 Yet, in view of rapidly accelerating global climate change, this is—and will—become increasingly difficult, if not impossible in certain areas, to obtain. So, the law must now help ensure the self-preservation of the current living generations of life if applying IE to potential future generations is to have any meaning. We, the living, have a profound legal and moral obligation to ensure that both present and future generations survive.
Second, the noun “equity” has ancient origins in legal traditions and provides a historic legal tradition of critical legal duties and remedies;22 in its broadest sense, equity means fairness within a body of law that, as courts applied it through the ages, was incorporated into civil jurisdictions.23
While the idea and use of equity can come in many forms,24 the legal application and enforcement of equity have historically been through the courts as part of state judicial remedies to outrageous wrongs.25 In particular, there is a long history in a variety of legal systems of court-enforced “equitable remedies.”26 So, we will come back shortly to what “equitable remedies” require in the Anthropocene era.
Thus, the term “intergenerational equity” includes the judicial responsibility of equitable enforcement if and when warranted. In particular, such court-mandated remedies based on fundamental equity can be addressed and applied to states’ ongoing and increasingly significant damages to the preservation and perpetuation of life on this planet. Moreover, IE is found in many treaties and domestic jurisdictions or customs; courts have also ruled that IE is a human right enforceable by the young in various jurisdictions.27
Since there have been no overt or consistent state objections to IE written into international treaties (or even domestic constitutions), IE has also obtained the status of a general principle in customary international law. 28As such, IE now has foundational legal significance and import to the administration of justice by civil or mixed jurisdictions, the majority of judicial systems in the world, as well as states with Anglo-American legal traditions.
So, in this legal brief, we will focus on equitable remedies, an established body of law, as an essential solution to violations of IE as a fundamental duty of the state. Of course, courts could entertain suits and remedies based on existing constitutional, human rights, or legislated law since so many states include basic constitutional or legislative provisions, as well as previous judicial cases, concerning the enforcement of IE.29 Or courts could consider the creation of a constructive or implied trust to ensure the enforcement of such lawful IE obligations and possible remedies. Such a step, if appropriate, has the added advantage of invoking fiduciary jurisdiction and duties as part of a legally mandated remedy to enforce IE.
But, due to limitations of space, the focus of this essay will be mainly on the possible use of equity remedies by the courts to preserve the nation and nature, though acknowledging that there are other avenues of judicial or legislative enforcement of IE that exist as well.30 In particular, the human right to life is, in essence, the same as the first principle of IE, identified here as self-preservation.
LEX NATURALIS AS SELF-PRESERVATION, THE FIRST MINIMAL GENERAL PRINCIPLE OF INTERGENERATIONAL EQUITY IN THE ANTHROPOCENE AGE.
The usual legal interpretation of intergenerational equity is that it requires that every living generation needs to pass on to the following generations the Earth and our natural and cultural resources in at least as good condition as we received them; in short, IE requires that the quality of the environment on balance is comparable between generations.31 As Prof. Edith Weis states, another way of defining IE is: “[m]eeting the needs of the present without compromising the ability of future generations to meet their needs.”32 The clear focus of IE is, at least initially, the legal relationship and obligations between the present and pending generations. This obviously presumes that current generations will be preserved and survive. This also includes the basic obligation of the state not doing anything currently that extinguishes the chances of a future generation simply to exist, let alone thrive. In fact, IE litigation is increasing around the world; this should not be surprising in that many countries have constitutional international treaty obligations or statutory provisions that require IE to be enforced in their jurisdictions. For instance, as Prof, Slobodian notes (and we quote at length):
References to future generations are found throughout national and international law. The Convention on Biological Diversity, the World Heritage Convention, and the United Nations Economic Commission for Europe Water Convention, among others, include obligations to future generations. Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, arts. 1-2 (future generations as part of the definition of sustainable use, including as one of the objectives of the convention); Convention for the Protection of the World Cultural and Natural Heritage adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization art. 4, Nov. 16, 1972, 1037 U.N.T.S. 151, https://perma.cc/KKG3-XAPZ (duty of each State Party to conserve and transmit to future generations cultural and natural heritage on its territory); UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes art. 2 5(c), March 17, 1992, 31 I.L.M. 1312, https://perma.cc/H79B-RAL2 (“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.”). The United Nations Framework Convention on Climate Change (UNFCCC) obliges Parties to “protect the climate system for the benefit of present and future generations of humankind, on the basis of equity . . . .” United Nations Framework Convention on Climate Change, Art. 3 1, 1771 U.N.T.S. 107, https:// perma.cc/37ZZ-2YHB. Obligations to future generations are found in the constitutions of Brazil, Germany, Guyana, Norway, South Africa, and Vanuatu, among others, as well as the national and subnational legislation of many countries, including the United States, Japan, and Australia.33
Yet, the exact legal meaning and obligations of IE are often strongly contested or largely ignored by states, especially the developed ones like the United States or industrialized ones like China or India. So, the full scope of IE has not been fully or evenly applied by many jurisdictions around the world. In particular, states and even the courts may be influenced by climate-denying economists who seem intent on using all current resources based upon the purely hypothetical—and now increasingly unlikely if not hopeless—assumption that future generations will enjoy a superior lifestyle, usually defined in purely monetary or materialistic terms;34 the ecological consequences of current economic activities on current future ecologies needed by the living and yet to be born are one of the great blind-spots, if not black hole, of modern economic theory and are often discounted as pure externalities.35 Furthermore, IE is growing more difficult, if not impossible, to legally enforce since we are destroying so much of the Earth’s ecology that supports and sustains current life on this planet.
In particular, the massive and continuing burning of fossil fuels places increasing amounts of CO2 into the global atmosphere ensuring greater and more extreme droughts, wildfires, hurricanes, and extinctions in this century, a century that has already seen the shattering of records chronicling droughts or extreme weather events.36 For instance, the great rivers of the world on several different continents are currently drying up (2022) simultaneously, including the Colorado, the Mississippi, the Rhine, Danube, Volga and Yahtzee, each portending the country-wide, if not continental, droughts to come, if nothing is done.37 If this continues, our grandchildren may be fighting over the last drops of water at the well.38
In short, the fate and futures of the current generations of life—the very young, young or middle age adults or even the elderly39— are increasingly jeopardized and at risk due to the ongoing global environmental destruction of life giving-ecologies; In doing so, we are leaving very little in terms of a healthy and sustainable environment, either locally or globally, to pass on to future generations, Yet, the continuing burning of fossil fuels is still protected and legally sanctioned by almost all state jurisdictions in the world.
So, by legally sanctioning the continual large-scale burning of fossil fuels, states are certainly NOT “meeting the needs” of even the current generations on Earth. Tragically, the increasing concentration of CO2 in the global atmosphere now places into doubt the life chances of the currently living generations, especially the young who in a “normal world”— (like the life-sustaining global ecology passed onto to us) — could expect to live to see the end of this century.40
Yet, the rule of law should ensure life, not take it away.41 So, protecting the self-preservation of the natural world is a basic legal precondition for legitimate state sovereignty;42 This needs to be quickly asserted and achieved through the global rule of law ensured and enforced by the appropriate legislation and international, regional, or national judiciary.43 Yet the rich and well-to-do—especially in the developed countries– still fly jets, drive mammoth and gas-guzzling cars, and live in large McMansions that need to be cooled in the summer and warmed in the winter, leaving a massive carbon footprint with no legal consequences such as offsetting with carbon sequestration. In other words, the developed or industrialized countries—such as the United States, Russia or China– continue to consume vast amounts of fuel and non-renewable resources as the world burns. The resulting war on nature now brings all of the Earth’s ecosystems perilously close to a global-scale collapse.44
This wanton waste and continual consumption of carbon-based fuels, threatening the very life chances of present and future generations, cries out for equitable remedies by the courts. In the face of this unprecedented and growing danger, Lex Naturalis or the Law of Nature seeks first to preserve present life, the current generations, on planet Earth. This is simply the first “half” of intergenerational equity for those living on the planet now, especially the young whose life is yet ahead of them. Yet, the well-being and even mere survival of current human beings, especially the young, as well as possibly all of life on the planet is increasingly in doubt due to accelerating climate change. As this is happening, it shouldn’t, at the very least, enjoy the sanction of law or lawful activities within any state’s jurisdiction, like the continuing permitting of new oil fields or the ongoing burning of carbon fuels.
So, by focusing on self-preservation current life, Lex Naturalis is legally based on the first part—the living generations– of the more encompassing fiduciary general principle of Intergenerational Equity (IE) which is already recognized in international law and many domestic jurisdictions;45 for instance, at present, over sixty “national constitutions include explicit provisions articulating the right of future generations to a healthy environment, define duties for the States towards future generations or enshrine intergenerational equity as a core principle for environmental and developmental policies.”46
As such, Lex Naturalis is the first and basic and fundamental principle of law often simply assumed in intragenerational equity.47 While Lex Naturalis refers to the sheer survival and preservation of life—(i.e., the presently living generations of life), intragenerational equity is “concerned with equity between people of the same generation and aims to assure justice among human beings that are alive today.”48 So the former is the precondition for the latter and, as such, is the focus of this current essay. Specifically, our sheer survival is now at stake, as well as the survival of all life—the biosphere and biodiversity-on Earth. If this be doubted, simply ask the obverse—if current trajectories of the burning of carbon-based fuels continue, what is to stop the Earth from overheating—the famous or infamous “greenhouse effect”—to uninhabitable levels? Denial or wishful thinking now simply won’t work. The law—both domestic and international—simply can’t be silent in the face of such a profound and pending threat.
In view of this, action and oversight by international, national and indigenous judiciaries based on IE or Lex Naturalis are essential to protect present or future generations are now essential since few, if any, states or their legislatures (if they have one) will countenance bills or acts that generally limit their powers, or say what they can’t do, to exploit nature. Yet, it still should be a self-evident basic principle of law that no state has the sovereign legal power or authority to extinguish IE entirely or to legally legitimate and continue activities that endanger, deny or extinguish the self-preservation and perpetuation of its entire nation and the nature or ecologies that makes the biological life of the nation possible.
Of course, pundits and politicians will almost immediately challenge or simply deny the great and danger of global climate change to many, if not most, of currently living human beings, especially the very young. There are vast economic interests and powers—from the United States through Europe and India to the People’s Republic of China– that want to continue the unstainable yet extremely profitable status quo of increasing growth or continual consumption based on the still increasing burning of carbon-based fossil fuels. Yet, these voices of dissent are becoming more suspect and shriller in view of the mounting and overwhelming evidence to the contrary—that global climate change caused largely by human activities is real and massively disrupting or destroying more and more of life and its critical ecologies on earth; the great and growing danger of global climate change is already happening and is becoming increasingly visible to all49—if one cares to look, the dangers or actual damages will significantly increase with each passing year.
So, there is a simple and irreversible test of climate denial. This “test” is based on two simple questions and is as follows: what if they –the voracious climate change deniers–are wrong? Then a great many of us will die, more will die on this planet than ever before except during a rare Earth extinction event. In contrast, if the analyses by the leading scientists in the world, such as those found in the IPCC, including Dr. Molina50 and many other eminent climate scientists- and the arguments in this article are wrong, then a great many of us, including the very young, will live long and prosperous lives. We certainly hope so. But, in the face of the mounting scientific evidence to the contrary,51 it makes simple sense to err, even slightly, on the side of the sheer survival and safety of current generations of life on Earth.
THE GROWING LEGAL CHALLENGE: LET LIFE SURVIVE
Yet, it is increasingly difficult to say honestly that we are preserving even a minimal Earth ecology necessary for the survival of future or even current generations. Yet, this is a basic legal and fiduciary duty of the state, its government, and its courts. Instead, we are currently endangering the life expectancies and chances of presently living human beings as well as all of life on this planet.52 In other words, the still increasing use of carbon-based fuels and other Greenhouse Gases (GHGs) is now directly threatening all of life on Earth in the form of global climate change which is accelerating and still largely unaddressed in any effective way. Due to this, scientists are already stating that human beings have ushered in accelerating extreme weather events, massive wildfires, drought and increasing extinctions of species; though in our hubris we may deny it, we human beings, as individuals and as a species are not exempt from the approaching existential danger.53
So, incredibly, this existential threat increasingly applies to the current living generations of life on the planet and not, as some wishful optimists think, a possible, pending generation sometime in the far future.54 Many of the feared “tipping points” that will destabilize the global ecology and climate have already been reached and are being surpassed; the rapid melting of the massive Greenland Ice sheet, or the melting of the permafrost, as well as the polar ice regions in both the northern and southern hemispheres, are simply three examples of the obvious.55 So, it seems that we have precious little time to take corrective legal action that may provide even the living generations a much better chance at survival.
EVIDENCE OF GROWING THREATS TO LEX NATURALIS AND IE: ESTABLISHING PROOF IN COURT
Unfortunately, there is ample and growing scientific, geophysical, and “real-time” evidence56 of the growing violations of and threats to Lex Naturalis and IE in most or all state jurisdictions. In the following section, we will only outline some of the most salient areas of scientific and actual “real-time” geophysical evidence that can be submitted to national courts to prove deep violations to IE or to Lex Naturalis. We will elaborate in greater detail in a later article in the future and, sadly, there will undoubtedly be more evidence to present and potentially submit in a court of law. So, we will briefly suggest and examine three key areas, knowing that there are other areas of growing evidence as well. As we shall see, all of these areas are interrelated. Such evidence, often contested, includes:
I) TIPPING POINTS: DESTRUCTION OF ESSENTIAL ECOLOGIES THAT SUPPORT AND SUSTAIN LIFE.
In 2009, the American NASA scientist Dr. James Hansen and his colleagues defined the idea of environmental “tipping points” caused by human actions thus:
“Anthropogenic pressures on the Earth System have reached a scale where abrupt global environmental change can no longer be excluded. We propose a new approach to global sustainability in which we define planetary boundaries within which we expect that humanity can operate safely. Transgressing one or more planetary boundaries may be deleterious or even catastrophic due to the risk of crossing thresholds that will trigger non-linear, abrupt environmental change within continental- to planetary-scale systems.”57
Dr. Hansen and his colleagues then identified nine tipping points, noting:
“Many planetary-scale processes (such as climate change) primarily produce impacts at a sub-Earth System scale, where such sub-systems show varying degrees of sensitivity to change. For example, climate change is associated with at least nine sub-systems “tipping elements” (e.g., the Indian monsoon and El Niño events), which all show varying degrees of sensitivity to a change in radiative forcing or temperature rise.”58
Dr. Hansen and his colleagues point out that the scientific evidence in 2009 supported the idea of such tipping points in general, though specific dynamics and feedback loops—remain to be fully determined. (Skeptical scientists will undoubtedly argue the point probably till we are overwhelmed by extreme weather after all of these tipping points begin to interact and greatly accelerate climate change…) Fortunately, Hansen is not alone; other scientists have identified large scale global tipping points as well as regional and sub regional ones, each of which can are now (2022) having an increasingly adverse environmental impact, such as: the melting of the polar ice caps and Greenland; the ensuing impact on the temperature differentials that fuel the variability of the jet stream and creating potentially extreme weather events;59 the melting of the global ring of permafrost, which is already occurring in large areas of Russia, Canada and the U.S- potentially resulting in the release the feared “methane bomb;”60 the slowing down or change of oceanic currents, including the Atlantic’s Gulf Stream or the Monsoon Current or Drift, due to temperature changes as a result of climate change; such oceanic changes can and possibly are having a catastrophic effect on hundreds of millions of human beings and other wildlife due to growing cold spells, droughts (Europe), or massive droughts in the Indian subcontinent.
Also, as mentioned earlier, great rivers on all six inhabited continents are drying up simultaneously during the summer of 2022, including the Colorado, the once “Mighty Mississippi, The Rhine, the Danube, the Volga and the Yangtze.61 These rivers represent vast watershed areas and are probably preludes to greater country-wide or even continental droughts caused primarily by climate change—if nothing is done…..62 We could go on but lawyers and the judiciary will undoubtedly have to conduct more and up-to date-research when and if related cases reach a court of law.
II) EXTINCTION EVENTS: THE ABNORMAL AND INCREASING LOSS OF BIODIVERSITY
As mentioned earlier in the essay, scientists are already warning that human beings are ushering in their continual destruction of vast and interconnected ecological systems, the Sixth Extinction Event of living species on Earth.63 specifically, scientists warn rapid loss of species we are seeing today is estimated to be between 1,000 and 10,000 times higher than the natural extinction rate;64 So imagine that we replace the proverbial “canary in the coalmine” with one representative of an entire species going extinct that day. Do this in every one of the thousands of coal mines still operating every day— then replace one member of a species (that went extinct yesterday) with a new one today, each representing the species that go extinct today– and so on every day from now on; replace daily the now extinct species with a new one today in a deep coal shaft, and inevitably repeat tomorrow. The rare medicinal plant that could cure your cancer in ten or twenty years will, unfortunately, die next week in one of these coal mines.65 As this terrible image represents, we are daily losing the priceless heritage of biodiversity unless we take critical steps to preserve our fellow beings and species from utter destruction.
So, national courts must try to calculate what the rate of loss of biodiversity is within their national jurisdiction as a key indicator of not only deforestation but of the droughts, extreme temperatures, and growing wildfires caused by accelerating climate change; such fires alone, are already circling the globe from Russia, Canada and the United States down to the equator to Australia, Africa and South America, Africa and Australia. For instance, massive clouds of smoke streaming from fires burning in Siberia were visible in the Eastern United States.66 The resulting loss of habitats for humans and other biological species is great and growing, and this is only the beginning.
III) INCREASING LOCAL OR NATIONAL DESTRUCTION OF HUMAN LIFE AND HABITATS.
One key indicator of global climate change is the rising oceans all over the world due to the melting of the polar ice in the Arctic and Antarctica as well as the simultaneous melting of the massive Greenland ice sheet. The projected rise in sea levels could result in catastrophic flooding of coastal cities. Thirteen of the world’s 20 megacities are situated along coastlines.67 As a direct consequence, oceans are rising and warming, endangering coastal cities and human habitation all over the globe, from New York City, Miami (which is already flooding), Rio de Janeiro, London, Singapore, Jakarta, and Shanghai. Tokyo and many others. Moving further inland, the rising temperatures due to climate change will make increasing parts of the Earth almost entirely uninhabitable—if nothing is done to stop the increase in heat-trapping greenhouse gases GHGs); yet, sadly, nothing really effective is currently being done since the GHGs, especially CO2 and Methane are still increasing in the atmosphere.68
Once released, CO2 can stay in the global atmosphere for hundreds of years, if not longer. As we continue to dump CO2 and other GHGs into the air, resulting temperature increases around the world are inevitable; already, we are seeing heat-related deaths in North and South America, Europe, Africa, and Asia. Sadly, the number of human casualties will tragically rise due to the increasing global temperatures,69 especially if we do nothing to curtail the use of carbon-based fuels; simultaneously we must begin massive marine-based or other large-scale carbon sequestration projects and Negative Emission Technologies (NETS)— which are remedies discussed below.
So, in view of the above, other indicators of irreparable damage and danger to the life prospects of present or future generations may be submitted to courts depending on the unfolding events within a specific national jurisdiction; such indicators may include: massive droughts, degradation of forests and deforestation; loss of fisheries or coral reefs that feeds millions, especially in the Pacific basin; loss of drinking water; degradation and loss of good agricultural land.70 Unfortunately, if nothing is done, the cascading adverse consequences of accelerating global climate change could now bring massive and irreversible damage to many of the ecological systems that make life possible on Earth.71
This preeminent global threat72 of climate change now needs to be radically addressed and corrected through equitable remedies by governmental and judicial action; specifically, the main and preeminent indicator that really matters now is stopping and even reversing the increasing amounts of legally sanctioned or permitted CO2 and other GHGs in the global atmosphere, and the carbon caused temperature increases all over the Earth; at the same time, we desperately need to accelerate “ecological restoration,” including court-ordered mandates to create or preserve nationally important ecologies, essential for clean water resources and “protected areas” in which biodiversity can flourish.73
So, getting to carbon net zero alone won’t ensure present or future generations of life; the vast ecological systems that support and sustain life are absolutely necessary to preserve the living and future generations. Yet, many local, regional and global ecological systems are under increasing threat from climate change or other causes as well. So, at the same time, we must preserve as much of the remaining biodiversity, watersheds, forest and arable agricultural lands as possible.74
So, in many ways, Lex Naturalis as a general principle of global and domestic law is much more demanding than IE in that it now requires, in order to ensure the self-preservation of life on Earth that any legally sanctioned or permitted activities which result in more CO2 or GHGs be totally offset by the offending parties or governments through effective carbon sequestration and negative emission technologies (NETs); failing this, such legally sanctioned consumption of carbon fuels and other GHGs must be quickly terminated, by progressively and strictly regulated, increasingly limited and, finally outlawed till we are carbon-free within the domestic jurisdiction of any state that is governed by the rule of law.
As argued above, Lex Naturalis is the bare and minimum legal duty imposed by Intergenerational Equity (IE). So, if Lex Naturalis– the self-preservation of the nation and nature—is not a minimal, essential and principled precondition for the law to exist, then why do states, courts or even defense establishments have any right to any subsequent exercise of power, authority or legitimacy? A state’s armed forces are designed as a critical component of ensuring the self-preservation and survival of the state; as such, this is an important yet now secondary goal of the state that must now confront and overcome the existential threat of climate change to its nation(s) and the ecological systems that make national, as well as individual, life possible.
THE LEGAL ENFORCEMENT OF IE REQUIRES COURT-MANDATED REMEDIES:
The states of the world still legally allow for up to forty billion tons of CO2 to be released yearly from the burning of carbon-based fuels, deforestation and other causes;75 Most of these CO2-producing activities are still legally sanctioned by states and occur, or are initiated, within states’ jurisdictions, especially the developed or industrialized ones. The results of this legally permissive, if not murderous, behavior are increasingly visible in the increasing droughts, wildfires, extreme weather events and killing temperatures around the world. If this truly massive release of CO2 continues, it is literally a collective death sentence for the world and many, if not most of the species as well as ecologies on Earth.
In view of this, enforcing the general principles of IE or Lex Naturalis is an essential part of the sovereign state’s duties as well as the best practices and independence of national judiciaries around the world. Such enforcement must include equitable remedies for the continuing burning or use of carbon-based fuels that contribute to the still-increasing amount of CO2 released into the global atmosphere. The burden and remedy regime for such CO2 increases must be first imposed on the STATE that allows such consumption of carbon-based fuels to continue. This duty of states was established long ago in the Trail Smelter and other legal cases that specify state responsibilities to remedy the damages caused by their continuing pollution or adverse effects.76
These legal remedies must now include remedial mandates issued from the bench that require the state to develop and deploy large-scale Negative Emission Technologies (NETs) immediately to remove such CO2 emissions from the global atmosphere, or barring this, the rapid phase-out and elimination of further carbon burning within or initiated within, the state’s jurisdiction. States have already legally sanctioned the large-scale development and deployment of coal mines, oil fields or burning power stations with their transmission lines crisscrossing countries and continents. Now it’s time for the courts to legally require the state, as equitable remedies for all of these active emission technologies, to develop and deploy the necessary large-scale NETs to remove the so-called “externalities” of CO2 in the global atmosphere –if life is simply to survive on this planet. This is the primary and basic duty of the state and its courts in the face of the growing reality of catastrophic climate change on a global scale.
In fact, in a longer pending law journal article on this subject, we will argue that the observance and enforcement of IE or Lex Naturalis is the essential precondition for the legitimate and legal sovereignty of the modern nation-state as well as the ensuing public authority of any national judiciary.77 This fundamental legal duty to preserve the life chances of present or future generations is based on the widely recognized general principle of IE now being part of accepted state practices around the world and customary international law.
In this essay, one main focus has clearly been on the state’s responsibility for legally enabling private actors as well as state agencies to continue to operate and often enrich themselves by abusing the Earth’s environment.78 Yet, in one of the cruelest ironies of the modern world, while states still invest heavily in carbon fuel extraction or provide significant tax breaks to oil and other carbon-based industries, they provide little or nothing in terms of funding to develop or deeply NETs, or even conduct significant research on carbon sequestration. These are the actions of a lawless Leviathan, a purely predatory pirate and should not be countenanced by any judiciary that is bound by oath to enforce the rule of law.
If we fail to curb the dumping of CO2 and others into the global atmosphere, we may be fiddle playing till the last day while the world burns. So, the international, regional, national and indigenous courts around the world can address this gross unjust enrichment and national negligence by states of the global atmosphere, still being used as a dumping ground for state-legalized emissions of CO2, by ordering and enforcing the appropriate equitable remedies required by IE or—at the very least—the basic principle of Lex Naturalis; simply stated, it is self-evident that no state has the legal or existential eight to endanger the continuing self-preservation of current or future generations, especially by unjustly enriching itself.
Thus, in the following and final section, we will briefly examine some of the most promising NETs being developed as potential legal remedies for state-sanctioned violation of IE and its essential prerequisite, Lex Naturalis. As we shall see, while states will spend almost two trillion dollars on defense in 2022, many—if not most—of these most promising NETs are still terribly underfunded—a deficiency that could be corrected by the courts as part of their required remedies imposed on the offending state.79 Or, will states be allowed to spend hundreds of billions on armaments and their militaries and not a penny for preserving life in the present or future?
The Most Promising Negative Emission Technologies (NETS): A Tentative List.
The potential of a variety of NETs and carbon sequestration techniques has been extensively studied and proven.80 The most promising NETs are listed below and are currently being developed,81 though each project needs a large infusion of capital NOW to scale up to the enormous scale needed for effective deployment and implementation; these promising NETs—each could absorb up to one percent or more of the CO2 in the global atmosphere– include:
a) UCLA’S CARBON MANAGEMENT INSTITUTE: “SEA CHANGE”
The “Single-step Carbon Sequestration and Storage” Project was developed in prototype at the Carbon Management Institute at the University of California, Los Angeles (UCLA). This extraordinarily innovative institute at UCLA has developed a variety of proven and patented NETs, including the one with perhaps the most potential to capture CO2 out of the global atmosphere, entitled “Sea Change.” Simply stated this is one of the two or three most promising NETs in development in the world today;82 So, courts should have no problem in requiring a state to fund, develop large-scale facilities and deploy them—if they have a sea coast. Since most of the developed or industrialized states in the world, like the United States, Russia, the EU or China have extensive coastlines, this is no obstacle to requiring the rapid deployment of large-scale Sea Change facilities as a legal remedy.
b) HEIMDAL CCU AND KARBON X CORP. https://www.heimdalccu.com/
Two Oxford graduates developed a process similar to the UCLA Sea Change, but using a different chemical process, to remove CO2 from ocean water and permanently capture it as calcium carbonate and other inert but useful substances powered by solar energy. They formed a company called Heimdal CCU and actually deployed the first working pilot project to remove CO2 from the atmosphere in Hawaii in 2021-22.83 They then partnered with Karbon X Corp to expand their capacity to remove CO2 in real time. Heimdal CCU is expected to expand carbon capture in Q1 2023 to 5000 tonnes/year and by Q1 2025 5MT/year capacity to be reached.84 The potential for the growth of this partnership and its ability to remove gigatons of CO2 from the global atmosphere on every continent in the world is now only limited by the lack of funding. So, it’s critical to realize that a fully working and online method of removing massive amounts of CO2 from the atmosphere now exists; so, if states want to continue to legalize public or private activities that continue to place CO2 in the global atmosphere, they should also be legally required as a remedy to offset these emissions by supporting this partnership or buying offsetting carbon credits from them. In short, a practical path forward exists to enforce Lex Naturalis and even IE if Courts recognize the massive damage being done to our global and local ecologies, as well as the actual remedies available.
c) MARINE PERMACULTURE AND THE CLIMATE FOUNDATION:
Massive Marine Permaculture and Kelp farms have already been developed and deployed by the Climate Foundation in largely indigenous areas in Indonesia and the Philippines, where local people intensely depend on the fish protein that healthy coral reefs provide.85 The Climate Foundation has discovered that coral reefs can sometimes be rapidly restored by drawing cooler waters from a hundred feet below to pour over the overheating reefs; drawing up these cooler waters also helps with large scaled Kelp farming and harvesting—a source of income to local inhabitants (and to potential investors) from Australia to the Philippines on a potentially massive scale, so much so that the directors of the foundations, including highly trained scientists, believe that such Marine Permaculture can suck out gigatons of CO2 from the atmospheres yearly. Having developed the NET, all they need now is capital to expand their operations. Their success in sequestration of CO2 through kelp farming placed them at the very top of the most promising NETs in the world today. States in the Pacific basin have no reason to continue the wanton destruction of the global environment by pumping gigatons of CO2 into the global atmosphere without being legally required or even voluntarily accepting the state’s responsibility to remove CO2 from the atmosphere or oceans.
d) CARBON CAPTURE AND STORAGE: THE ORCA PROJECT:
Since so much has already been written and researched about the ORCA Project, I refer you once again to the citations and articles listed below in the footnotes for a fuller and more robust description and explanation.86 While this project may be unique to Iceland and its geography, the methods of carbon capture and storage are proliferating and possess enormous potential for growth with proper and adequate funding. As such, this is an opportune area for court-mandated legal remedies; the point is that remedies actually exist and courts as well as people around the world don’t have to simply accept using the global atmosphere as a dumping ground for CO2 that is legally entitled by states in fundamental violation of their basic fiduciary duties to present or future generations.
e) COASTAL CARBON CAPTURE: OLIVINE AND THE OCEANS:
Olivine is one of the most common minerals on the Earth; it also absorbs CO2. To do this, all olivine needs is to be exposed to the surface, either in the oceans or the atmosphere, and it immediately begins to absorb C02; then “it forms into magnesium-carbonate and silicic acid. This process locks up CO2 from the air into rocks with a new chemical composition” where it can stay for thousands of years, if not longer…87
BLUE CARBON: This sequestration process, using the common mineral olivine and other ultramafic minerals– has been extensively studied, proven to work—though it would have to be scale up very quickly to a massive scale’ using olivine on beaches to capture CO2 in oceans and other rock weathering projects should be R&D2 immediately as well since olivine and other ultramafic minerals are plentiful, if not under your feet right now. The mission of the Vesta Project is to: is to further the science of Coastal Carbon Capture and galvanize global deployment. See the Vesta Project website (below) for scientific studies, concept papers, and pilot projects.88
f) CARBON FARMING AND THE CARBON CYCLE INSTITUTE:
According to the Carbon Cycle Institute: “Land management is the second largest contributor to carbon dioxide emissions on planet earth. Agriculture is the ONE sector that has the ability to transform from a net emitter of CO2 to a net sequester of CO2 — there is no other human-managed realm with this potential.”89
The Carbon Cycle Institute goes on to state:” Recent studies demonstrate the efficacy of several carbon-beneficial agricultural practices in increasing soil carbon sequestration. Compost use has been shown to increase the amount of carbon stored in both grassland and cropland soils and has important co-benefits, such as increased primary productivity and water-holding capacity.”90
g) THE IRON HYPOTHESIS:
Despite being known and discussed for over two decades, the so-called Iron Hypothesis still must be progressively tested, titrated up to scale in larger and larger experiments, and then fully deployed.
The Iron Hypothesis involves the seeding of the oceans or Oceanic gyres, with iron filings to cause great plankton blooms that will then absorb CO2 from the atmosphere.91 Meanwhile its critics speculate and argue without compelling evidence that deploying iron filings in this way would be a toxic development, despite the deadly toxic blooms in the oceans ALREADY being caused right now by climate change while the world burns; plus, human beings among all the other Biosphere, faces the Sixth Extinction event. A little more humility, intuitiveness and what the great Gandhi called “Experiments with Truth” are called for in the face of such catastrophic, runaway climate change…. But academics “know it alls” are adamant so convincing them might simply take more time than we now have to prevent what Secretary-General calls “climate catastrophe….”
Since I have written extensively on these, the Iron Hypothesis, and its potential for large-scale deployment elsewhere,92 I will not repeat the arguments here. However, I will quote from an earlier article (2018), to wit:
“Time is now not on our side as the danger of irreversible climate change is rapidly growing; so, we need to accelerate global climate consultations, continuous negotiations and lasting action. As a global organization, the UNGA can help mobilize the necessary research and development of policies, programs and technologies to accomplish greater efficiencies in all possible mitigation methods, including healthy carbon sequestration as well more remote techniques such as “in the stratosphere” and space-based solar screening. In short, every mitigation method or every “experiment with Truth” must be tried until one or more mitigation method proves effective.
“Untried ways to achieve the massive reduction of atmospheric carbon should be as varied and innovative as the human imagination and following policy initiatives allow. For instance, vastly expanded and added efforts must include, in memory and honor of Wangari Maathai, the continuous planting of a billion trees per year on each of the inhabited mainland continents; renewed experimentation of the Iron Hypothesis in the Southern Ocean; and there should also be massive and accelerated conservation efforts with energy or electricity as well as recycling, especially throughout the developed world where the waste is greatest.
“In doing so, the obvious ethical rule of application is that such mitigation or sequestration technologies should not be deployed if the actual damage that they cause is greater than the growing danger and increasing devastating consequences of continuing, unabated global climate change to all life on Earth. There is now a cruel yet unavoidable calculus of cost-benefit calculations concerning the benefits and inevitable consequences of simply doing nothing, such as droughts, migrations and increasing extinction events. For instance, critics of carbon sequestration in the oceans often cite the unintended potential consequences of large-scale deployment of technologies based on the Iron Hypothesis; yet there was a massive and growing toxic orange algae bloom growing off the coast of California in 2016 caused by increased temperatures and unabated climate change. This toxic bloom caused a massive kill-off of fish, the seabirds or mammals that rely upon them. So, not doing anything—and thus allowing such unintended consequences to grow, must be calculated against the possible and still hypothetical unintended consequences of carbon sequestration methods. The deadly costs of doing nothing are very steeply increasing.
“Policy Purists” who advocate “carbon cuts or nothing!”–which was an appropriate attitude and approach thirty years ago–are now possibly the greatest hindrance to climate progress and even human survival. There are now rapidly increasing costs of doing nothing that can be measured, calculated, and compared, even roughly, against the inevitable cost/benefits of carbon sequestration methods, geo-engineering and the R/D of new technologies. The time has now simply passed when ethically “ideal” or “pure” cost-free measures were perhaps feasible.
“The Earth is rapidly heating up to uninhabitable levels, or will in the next years and decades, the polar ice caps and glaciers are melting at unprecedented levels, sea levels are rising, and extreme weather events are spreading as well as intensifying. In view of deeply troubling developments, we need to intensify our efforts through a collective commitment to climate policy pluralism and have a variety of strategies, methods, and approaches to stabilizing the Earth’s climate; so far, it’s becoming increasingly obvious—except to rabid climate deniers and ironically environmental purists–that carbon cuts alone simply aren’t working.”93
There are a variety of new NETS and carbon sequestration techniques being developed as well. Thus, there is no shortage of potential remedies for the courts to mandate should they determine if states are unjustly enriching themselves by destroying the life chances and opportunities of current or future generations of life. In fact, in view of the ongoing, massive planetary-scale destruction going on right now caused by legally sanctioned activities of individual states, it is simply astounding that so few or no court-mandated remedies have been ordered to address and attempt to remedy the increasingly obvious and ongoing destruction of the global or local ecologies that make all of life on Mother Earth possible.
CONCLUSION: SIMPLY RUNNING OUT OF TIME
As argued above, the state and its courts must do all that they can to preserve, at the very least, the life chances of present generations and pending generations to survive. In view of this, this article argues that Intergenerational equity (IE) is a general principle of international law, found in the constitutions in a large number as well as legislated or case law within a variety of domestic jurisdictions,94 and consists of two interrelated, co-equal and constituent elements: first, the general principle of Lex Naturalis, the law of self-preservation, first defined by Thomas Hobbes and the integral first requirement of intergenerational equity (IE) which is a general principle of international law also found in many domestic jurisdictions.
Yet, there are the current living generations of life, hereafter referred to as the present generations, whose absolute right to self-preservation is now threatened by the legally sanctioned activities of the state that involve the continual exploration, drilling extraction, and consumption of carbon-based fuels, such as oil or coal, that threatening the very existence of current life on this planet.
Yet, no state possesses the authority or power to legally permit or legitimate activities within its jurisdiction that threaten the self-preservation of the nation or the Earth’s ecologies that make national and individual life possible. If a state does not acknowledge and enforce its supreme duty of ensuring the self-preservation of its nation and nature, then simply becomes a lawless Leviathan that has no fundamental inherent right to create courts or enjoy national sovereignty; it becomes a dangerous pariah, or pirate state, a predatory political entity that seeks to exercise the power to devour and destroy without recognizing its legal and basic duty to preserve and perpetuate the national life of its people and the nature or eco-systems upon which the nation as a whole fundamentally needs and requires simply to exist.
As such, the general principle of Lex Naturalis, derived from IE, is the basic Law of Nature that recognizes and requires self-preservation as the supreme obligation of the nation-state. This is applicable as the first essential and minimal legal obligation of the state—the preservation of current human life—which is the basic legal foundation for the general principle of IE that is already accepted in most civic or mixed legal systems as well as Anglo-American jurisdictions.95 Simply stated, if we fail to preserve current life on this planet, and we are presently failing to do so, then it becomes almost meaningless to speak of perpetuating life as well.96 There will be little or nothing for future generations to enjoy if we continue to plunder and pollute the planet.
So, both of the terms of reference in IE –the present generation as well as future ones- are crucial and have significant legal importance. First, the word “intergenerational” articulates the responsibilities of the present living generations of human beings—and assumes that our own fate and future are preserved and even assured; due to global climate change, this assumption is now profoundly problematic. In particular, if current trends in the consumption of carbon-based fuels continue, young children living today or babies recently born will live in a profoundly different and increasingly uninhabitable world; people all over the world are already dying from increasing extreme weather events, including record-breaking increases in ground-level temperatures.97 If this be doubted, just read tomorrow or next week’s headlines from around the world.
Second, the term “equity” usually requires judicial action in order to be enforced. So, this article has argued, at the very least, that international, regional, national and indigenous courts have a profound responsibility to enforce at least the minimum requirements of IE which is to preserve, protect and try to perpetuate the present generations of life currently living on Earth. Yet, IE has never been fully or robustly enforced and time may be running out to do so in many jurisdictions, such as island nations or low-lying liminal states, currently being ravaged by climate change and the resulting adverse consequences such as ongoing sea level rise.
In view of this, this article seeks to provide a minimal General Principle of IE, focusing on the preservation of current generations of life, to correct this situation by focusing on the power and potential of judicial action; such action by the courts can provide the legal and much-needed basis for effective intervention to stop such ongoing devastation, pollution or outright destruction of the global and local ecologies and Earth commons. The hour is very late, so if we don’t address the rampages of accelerating climate change soon, which is almost entirely due to human activities, we will have no second chance and no planet B for escape. If we don’t take effective action now to protect and save our planet and its capacity to sustain current and future life, we may well perish due to human folly, greed or delusional denial by some but not because of general ignorance; we now know the causes of climate change. And if we lose most or all, then we have only ourselves, supposedly homo sapiens (wise man) to blame. So, this article and argument are presented in the hopes that we can do much, much better for our children, grandchildren and all the young people of the world.
by: Thomas Boudreau Ph.D.
Interdisciplinary Professor of Conflict Analysis
–and International Law (CADR)
Salisbury University, MD.
2022, Creative Commons (CC)
Duplication is encouraged;
Per CC protocols, Please cite
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in any subsequent reuse.
Acknowledgments:
It is not easy to write about the increasing dangers and destruction or ensuing conflicts caused by climate change. So, I would like to give a special thanks and acknowledgment to an undergraduate student, Analynn Redding, who encouraged me to write this article and helped with research and editing; this article would not exist without her and her classmates, other volunteer members of the Global Trust Project, whose promising futures inspire me to continue working on climate change.
SELECT SOURCES OF IE LAW
a) BEST LEGAL ARTICLES ON INTERGENERATIONAL EQUITY AVAILABLE?
See: https://www.ohchr.org/sites/default/files/Documents/Issues/Environment/SREnvironment/Child/CIEL.pdf
Sohn, L. B., & Weiss, E. B. (1987, April). Intergenerational Equity in International Law. In Proceedings of the Annual Meeting (American Society of International Law) (pp. 126-133). The American Society of International Law.
Also see: for instance: Weiss, E. B. (1988). In fairness to future generations: international law, common patrimony, and intergenerational equity.
JUST PUBLISHED (Nov. 2022): Bertram, D. (2022). ‘For You Will (Still) Be Here Tomorrow’: The Many Lives of Intergenerational Equity. Transnational Environmental Law, 1-29.
b) SOURCES OF IE IN INTERNATIONAL LAW: Full Quote from note 25, supra:
Prof, Slobodian notes:
References to future generations are found throughout national and international law. The Convention on Biological Diversity, the World Heritage Convention, and the United Nations Economic Commission for Europe Water Convention, among others, include obligations to future generations.7 Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, arts. 1-2 (future generations as part of the definition of sustainable use, included as one of the objectives of the convention); Convention for the Protection of the World Cultural and Natural Heritage adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization art. 4, Nov. 16, 1972, 1037 U.N.T.S. 151, https://perma.cc/KKG3-XAPZ (duty of each State Party to conserve and transmit to future generations cultural and natural heritage on its territory); UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes art. 2 5(c), March 17, 1992, 31 I.L.M. 1312, https://perma.cc/H79B-RAL2 (“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.”). The United Nations Framework Convention on Climate Change (UNFCCC) obliges Parties to “protect the climate system for the benefit of present and future generations of humankind, on the basis of equity . . . .”8 United Nations Framework Convention on Climate Change, Art. 3 1, 1771 U.N.T.S. 107, https:// perma.cc/37ZZ-2YHB. Obligations to future generations are found in the constitutions of Brazil, Germany, Guyana, Norway, South Africa, and Vanuatu, among others, as well as the national and subnational legislation of many countries, including the United States, Japan, and Australia.98
c) Statute of International Court of Justice (ICJ)
Article 38: Sources of International Law
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
- a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- b. international custom, as evidence of a general practice accepted as law;
- c. the general principles of law recognized by civilized nations;
- d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Also see:
a) Global Trust Project at: https://atmosphereasaglobaltrust.com/
b) Advances in International Law: Enhancing the Role of the Judiciary in the Rule of Law (2017), T. Boudreau & J. Carlos Sainz Borgo (eds), Elias Press. c) https://www.leclubdesjuristes.com/100-jurists-call-for-action-for-the- adoption-of-a-global-pact-for-the-environment
d) Boudreau Ph D, T. (2017). The Earth’s atmosphere as a global trust: establishing proportionate state responsibility to maintain, restore and sustain the global atmosphere. Environmental and Earth Law Journal (EELJ), 7(1), 2.
Climate Change and the Global Trust Project 