Long Views
The Summit of the Future is a United Nations event planned for New York in September. “At the Summit, countries are expected to adopt a Pact for the Future that covers five areas: sustainable development and related financing; international peace and security; science, technology, innovation and digital cooperation; youth and future generations; and transforming global governance” (UN news, 2023).
According to
Pham (2024) the summit is “intended to revive a multilateral system built for a
different era”. She claims that “no other platform for reforming global
governance can compete with a summit that convenes all countries, great and
small.” Pham described the initial draft of the Pact for the Future as “a timid text” characterised by
reaffirmations rather than decisions and stressed the need for it to “look
ahead to the governance of new and emerging global challenges”. However, she regards
a proposed Declaration on Future Generations as an inspired idea. The
Declaration “would, if intergovernmentally agreed, be annexed to the Pact for
the Future and form one of the outcomes of the Summit of the Future” (UN
Summit, 2024). The Zero Draft of the Declaration is a short document consisting
of a preamble, a list of guiding principles, and nineteen commitments (UN Zero Draft, 2024).
The Zero
Draft notes the importance of safeguarding future generations, the promotion of
intergenerational solidarity and responsibility, the need for intergenerational
dialogue and engagement, and the exponential effect of present conduct on future
generations, all those who “will eventually inherit this planet.” It
acknowledges the need to address “intergenerational transmission of poverty and
hunger” and the “pressing issues of climate change, biodiversity loss and
pollution” along with desertification and water scarcity. It refers to demographic
trends, migration, leveraging “data and strategic foresight to ensure long-term
thinking and planning”, and the use of future impact assessments, taking
account of “indices beyond GDP”.
While
readers of the Zero Draft may feel that it has succeeded in identifying some of
the most pressing problems surrounding climate change, some might wonder what
the forthcoming Summit of the Future is likely to achieve, beyond further
statements of laudable aims. In a review of his recent book Long Problems,
Thomas Hale is quoted referring to the Summit as “perhaps a chance to catalyse
action around the world to rise to the challenge that long problems pose” (BSG,
2024). Hale and his colleagues published a policy brief in 2023 outlining their
views on what a Declaration on Future Generations should look like (Hale et
al., 2023). They wrote that such a declaration could in no way be “a panacea
for the dilemmas of short termism or the structural challenges we face”, but
that together with its institutionalisation it could “serve as a critical
catalyst” for broader changes. Institutionalisation could imply creating “a
‘voice’ for future generations in the UN system, such as a Special Envoy or
High Commissioner”. The Declaration could provide “a source of inspiration and
a reference point for efforts to embed legal protections for future generations
in treaties, laws, constitutions, specific legal rulings, or other instruments”.
It should “go beyond a simple list of familiar issues” extended toward future
generations, and should “provide a concrete basis for further
institutionalising attention to the needs of future generations … across society as a whole.” It should
establish “a dynamic compact between present and future generations” and
highlight issues such as “long-term sustainability, the stewardship of emerging
technology, existential risks, and a renewed emphasis on long-term development.”
Long
Problems addresses many
issues specific to climate change (Hale, 2024). The review cited above (BSG,
2024) describes climate change and its consequences as unfolding over many
generations and asks how governments can address this and related problems like
infrastructure investment, when “the priorities of the present dominate
politics and policy.” Hale’s book attempts to show “why we find it hard to act
before a problem’s effects are felt, why our future interests carry little
weight in current debates, why our institutions struggle to balance durability
and adaptability, and what we can do about it all.” Emerging tools include “courts
enforcing the rights of future generations, new kinds of accounting that better
weigh long-term costs, and citizens’ assemblies where people can consider big
issues.”
Long problems
are distinguished from ongoing problems such as health care and education which
we expect to be always with us. Although climate change may last for centuries
or millennia, it is termed a long problem because is has a well-defined
historical starting point and a conceivable solution. Other examples of long
problems are the accumulation of space debris and the storage of nuclear waste.
Long problems present three challenges to long-term governance: the early
action paradox; shadow interests; and institutional lag. The early action
paradox arises because long problems “require action before effects are felt”; shadow interests belong to the people of the future,
who “lack any agency over decision-making today”; and institutional lag describes
the difficulty of updating the institutions set up to govern long problems when
the problems themselves shift with time.
For each of
the challenges three categories of solution are proposed. The early action
paradox requires information and foresight, such as environmental and fiscal
assessments which make the future seem real; it needs experimentalist
governance, such as the Montreal Protocol, which used industrial and regulatory
experts to review progress and make changes; and catalytic strategies such as
the Paris Agreement. Shadow interests can be represented by bodies such as the
Climate Change Committee; by court rulings on climate change targets; and by
changing the time scales for action through capacity building, activism, and
rule changes. Institutional lag can be addressed through goal setting such as
the UN’s Sustainable Development Goals; by governance measures such as review
and sunset clauses; and by automatic policy triggers and reserves such as
sovereign wealth funds.
In
discussing the difficulty of changing institutions, Hale comments on the
‘nontrivial’ process of changing laws, and in a section on Trusteeship,
suggests that courts could become trustees for the future. New legal
instruments on the rights of future generations would reshuffle power “from
present interests to future ones”. The increasing impacts of climate change
could create the political conditions that would allow jurists to “act in the
interests of future generations”.
Shortly
after the publication of Hale’s book, Yvonne Kaul drew attention to legal
obligations towards future generations. She reported the conclusion of jurist
Professor Dr. Svenja Behrendt that fundamental law “already
includes our obligations towards the future interests of people living now or
of people who will live in the future.” (Kaul, 2024).
Behrendt (2024)
contradicts the common argument that “a legal subject that does not yet exist”
can have no claims and so creates no obligations. While her paper is generally very
readable, it is in places technical, and no attempt will be made here to do
more than indicate a few points in her argument. It is natural to think of
responsibilities toward future generations in moral terms. “If the presently
living are engaging in enterprises that benefit them but will cause … harm to
future generations that is only avoidable at great expenses … it is certainly
plausible that such behaviour violates moral obligations.” However, even if “there
is a moral obligation to do X, it does not mean that there is a legal
obligation to do X.” While natural law is strongly linked to morality, legal
positivism denies this connection and Behrendt avoids the difficult issues of
morality by asking only “whether obligations towards future generations are
conceivable as legal obligations from a positivist stance”. She describes such legal
obligations as at present “primarily understood to be self‐imposed … framed as
a guiding principle” or as a “state task which comes with enormous discretion”.
This view can be challenged by taking a rights-based approach, and Behrendt
argues that “legal obligations towards future generations are grounded in the
relational character of human rights.” She refers to horizontal relationships
in law, in which objectives and obligations are met reciprocally by equals: “If
the law acknowledges human rights, meaning fundamental rights that are bestowed
on human beings, every human being is a bearer of human rights … horizontal
legal relationships arise because every bearer of human rights can claim that
another bearer of human rights is obligated to respect their right and vice
versa”.
Behrendt
develops her argument that legal obligations towards future generations are
grounded in the relational character of human rights, referring to existing
texts such as the EU Charter of Fundamental Rights and the Universal Declaration of Human Rights, describing them
as norm texts. She also argues that “some claims and obligations are
conceivable even though the rightholder has not made a decision by which they
concretize their interests. This means that present claims and obligations
exist even though the impact of the behaviour will only occur in the distant
future.” In her conclusion, quoted below, she limits the time scale of
applicability, refers to norm texts on human rights, and to the positivist
stance which sees law as a system of rules and norms not dependant on morality.
“Legal
obligations towards future generations are conceivable based on human rights,
even from a positivist stance, insofar as the interests concern a person who is
born during the lifespan of a person alive today. A legal order that entails
norm texts on fundamental rights and that proclaims human beings to be
rightholders already contains the necessary feature by which to argue that such
a legal obligation exists.”
References
Behrendt,
S., 2024, Facing the Future: Conceiving Legal Obligations Towards Future
Generations, Politics and Governance, online, accessed 21 May 2024
https://www.cogitatiopress.com/politicsandgovernance/article/view/7839/3737
BSG, 2024, New
book by Thomas Hale on ‘long problems’ like climate change, Blavatnik School of
Government, online, accessed 20 May 2024
https://www.bsg.ox.ac.uk/news/new-book-thomas-hale-long-problems-climate-change
Hale, T., et
al., 2023, Toward a declaration on future generations, Blavatnik School of
Government, online, accessed 20 May 2024
Hale, T.,
2024, Long Problems: climate change and the challenge of governing across time,
New Jersey and Oxford, Princeton University Press.
Kaul, Y.,
2024, Legal Scholar Shows That Legal Obligations to Protect Future Generations
Already Exist, Universität Mannheim, May 2024, online, accessed 21 May 2024
https://idw-online.de/en/news833876
Pham, M.T.,
2024, The UN Pact for the Future Needs Something Old, New, Borrowed, and Blue,
Emissary, April 15, 2024, online, accessed 18 May 2024
UN news, 2023, Summit of the Future ‘unique opportunity’ to rebuild trust:
Guterres, United Nations, online, accessed 20 May 2024
https://news.un.org/en/story/2023/09/1141187
UN Summit,
2024, Towards a Declaration on Future Generations, United Nations, online,
accessed 20 May 2024
https://www.un.org/en/summit-of-the-future/declaration-on-future-generations
UN Zero
Draft, 2024, Zero Draft of the Declaration on Future Generations, online,
accessed 20 May 2024
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