This article is written by Vishwom Revankar, a Law student at Bangalore Institute of Legal Studies pursuing Diploma in Environmental Law, UNELCP.
Table of Contents
Introduction
Intergenerational equity is that concept which forms the bedrock of the entire Environmental philosophy. It emphasizes the interdependence of generations of humankind on the grounds of environment. The expeditious leap of technology reconciling economic growth and industrialization fosters the imminent peril towards the sustainability of the environment. This certainly raises grave concerns for future generations, and at the same time builds extreme pressure on the existing generation stakeholders to immediately reflect on the environmental concerns and take effective measures. This article tries to outline the ambit of the said principle along with analyzing the statutory status in the global world order. In contrast it highlights the emergence and unavoidability of the principle with the introduction to environmental revolution. Apart from examining major multilateral environmental agreements it also involves domestic precedents as well as reimagining individual responsibilities towards nature.
What is intergenerational equity?
The term intergenerational equity states that “every generation holds the Earth in common with members of the present generation and with other generations, past and future. The principle articulates a concept of fairness among generations in the use and conservation of the environment and its natural resources”.
Before the late 19th Century, there was no appreciation for the idea that ecosystems and other important natural resources should be made the subject of legal protection and prevention for future generations. Before the 1960s, environmental law had no discrete domestic and international statute of its own. Even in the 1970s, there were only a few multilateral agreements related to environmental law, and most countries lacked a law dedicated to the environment.
The evolution of International Environmental Law and the integration of environmental concerns for the present and the future into policy making and governance is manifest since the United Nations Conference on the Human Environment, 1972 held in Stockholm and famously known as the “Stockholm Convention”. It set a new precedent in the regime of International Environmental Law which entailed effective policies and common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment.
International Conventions affirming this principle
Under the banner of international environmental law or governance, Intergenerational equity has always been a cardinal principle. From the 1972 Stockholm Declaration on Human Environment to the recent Minamata Convention on Mercury which came into effect in 2017 the said principle has been an inseparable, inevitable fundamental object. The principle embodies a fixed space in every international environmental treaty. Following are one of the major environmental consensuses on an international scale which has significantly addressed the global environmental concerns.
Principle 2 of the landmark declaration affirms “The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate”.
This report among other things affirmed the principles of Intergenerational Equity by stating: “Humanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs”.
Principle 3 of this declaration reads “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”.
It states that: “Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities”
The preamble of the convention makes an attempt to include both present and future generations as it states: “Recognizing that each and every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”
Para 6 of the declaration refers to “equitable social development and social justice”.
Sustainable development and equity
It was not until the report of the World Commission on Environment and Development, “The Brundtland Report” and the 1992 United Nations Conference on Environment and Development that the term “sustainable development” gained global currency. Over 7,000 delegates from 178 countries recognized a global need for environmental protection with economic and social development, and called for sustainable development.
Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. The International community recognized sustainable development as the overreaching development paradigm for improving quality of life. And it is sustainable development goals (SDG’s) which present equity both intra-generational and inter-generational. A developmental mechanism reconciling progression without compromising on the environment and the needs of tomorrow.
Sustainable development and equity are the two sides of the same coin. The common aim of SDG’s is to maintain sustainability by employing mechanisms of prevention, preservation and precaution. It is the process of maintaining the dialogue of development whilst protecting the same. The principle of intergenerational equity is inherent in sustainable development, whereas the entire apparatus of the latter is the attainment of the former. And on the avenue towards a better, clean and safe environment for tomorrow sustainable development is the only jalopy.
Right to environment, a Fundamental Right for all generations?
Today, the right to a healthy environment has gained constitutional recognition and protection in more than 100 States; the strongest form of legal protection available. About two thirds of the constitutional rights refer to a healthy environment; alternative formulations include rights to a clean, safe, favorable, wholesome or ecologically balanced environment.
The Preamble to the Universal Declaration of Human Rights refers that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. The reference to all members of the human family has a temporal dimension, which brings all generations within its scope. The reference to equal and inalienable rights affirms the basic equality of these generations in the human family.
Along with the fundamental right to environment, it is an inherent and implied duty of humans to act as the guardians of nature. Environment is not a property of people or governments and all generations have equal possession over it. We the people of this generation or even this century are the inheritors of such a right whereas we are equally the abettors playing a collective role in the causing of irreparable prejudice in such rights of the next generation people. Development can have, and has had over the years, major impacts on the environment, by degrading resources, altering landscapes and threatening biodiversity and such actions definitely places the coming generations rights in extreme jeopardy.
Landmark cases on the principle
Minor Oposa Case
In the case of Oposa v. Factoran Minors Oposa the Supreme Court of the Republic of the Philippines decided that the petitioners could file a class suit for others of their generations and for the succeeding generations. The court, considering the concept of intergenerational responsibility, further stated that every generation has a responsibility to the next to preserve that rhythm and harmony necessary for the full enjoyment of balanced and healthful ecology.
Goa Mining Case
In the Goa foundation v. Union of India and others the Supreme Court of India ruled that four principles— intergenerational equity, sustainable development, the precautionary principle and polluter pays principle—are part of the right to life according to the Constitution. It has also ruled that the public trust doctrine extends to all-natural resources, and that the state is a trustee for the people, and especially for the future generations. The Supreme Court has recognized the intergenerational equity principle (future generations must inherit at least as much as the present inheritance) in the context of conservation of scarce resources like minerals.
The CRZ Notification Case
In the case Enviro-Legal Action v Union of India decided in 1996, a full bench of the Supreme court of India observed that “A law is enacted because the law makers and the Legislature believes and contemplates that it is necessary. And it is with this particular view that it is necessary to protect and preserve the environment and save it for the future generations and to ensure good quality of life”. It relied on the right of Intergenerational equity along with some other right and delivered the judgement.
Similarly, under International Law the International Court of Justice (ICJ), has acknowledged and upheld that present generations should safeguard the interests of future generations.
Maritime Delimitation in the Area between Greenland and Jan Mayen
In the case of Denmark v. Norway decided in 1993 by the International Court of Justice, Judge Christopher Weeramantry wrote in his concurring opinion that respect for “elemental constituents of the inheritance of succeeding generations dictated rules and attitudes based upon a concept of an equitable sharing which was both horizontal in regard to the present generation and vertical for the benefit of generations yet to come”.
Gabčíkovo-Nagymaros project
In 1997, in a case between Hungary and Slovakia before the ICJ concerning the Gabcíkovo Nagymaros Project of locks and dams on the Danube river, Judge Weeramantry chronicled the concern for future generations across several continents: “… land is never the subject of human ownership, but is only held in trust, with all the connotations that follow of due care, wise management, and custody for future generations”.
The Inter-American court of Human Rights (IACtHR) also has an affirmative precedent on this issue.
Awas Tingni Case
In the case of Mayagna (Sumo) Awas Tingni Community v Nicaragua the Inter-American Court of Human Rights referred to the interests of future generations which involved the rights of indigenous communities. While the IACtHR’s decision referred to the community’s relations to the land as necessary to ‘preserve their cultural legacy and transmit it to future generations’, the Joint Separate Opinion of three of the judges addressed the intertemporal dimension more fully and explicitly. The judges noted that ‘we relate ourselves … in time, with other generations past and future), in respect of which we have obligations’.
The need for environmental revolution
It certainly needs redefining and reinventing the subject of environmental law and compliance as with the compliance with other critical fields of legal subjects. The advancement and transformation of the world economy, significantly creates scope and emergence for the new order of Socio, economic, political and legal openings in compatibility with it. This emergence shall not deal with environmental governance in isolation. The subject of environmental law is not irreconcilable with the general law. The effectiveness and compliance of the former shall be no less than the latter. Environmental laws should be an integral part of every world constitutions with the highlighting principle of intergenerational equity.
Just like other global revolutions which transformed the global society, today needs an inexorable “environmental revolution” to meet the needs of tomorrow. Where environmental concerns shall be addressed with the same gravity, legislation with efficacious sanctions and an inherent part of education. Individuals must embrace the cognizance of their environmental rights with reciprocity to their environmental duties. Just like the violation of any other rule of law, responsibility should entail for environmental breaches. The specific compliance mechanisms for environmental laws must be a part of national legislation.
Individual actions and public participation
Any rule of law is incomplete without effective public cooperation. Every individual holds equal responsibility towards fulfilling their environmental duties. Individuals need to realize that environmental breaches are synonymous to human rights violations. And the breaches of the former results in the violation of the latter both intragenerational and intergenerational. Which is where all individuals collectively can address these concerns. It starts from a very rudimentary process of individuals engaging in environmental information, environmental participation and environmental impact.
As the Earth Summit 1992 emphasized the active participation of all sectors of society and all types of people. The Agenda 21, formalized nine sectors of society and officially called “Major Groups” and included following sectors:
- Women
- Children
- Indigenous people
- NGO’s
- Local Authorities
- Workers and Trade Unions
- Business and Industry
- Scientific and Technological community
- Farmers
It is with collective and cooperative action in contrast to equity and inclusiveness that the goals can be achieved.
There is a huge gap or one may call it a vacuum between the law makers and the law followers and it is in this gap where the need of law observers is felt. And it is an interesting subject of study. And from a personal remark the legal fraternity has a comparatively added responsibility. To maintain the check and balance and to fight every loophole encountered in the environmental governance.
Conclusion
With the advancement of human civilization and the gigantic leap of the human race towards modernism a threat persists, a threat to those who cannot fight for their rights, to those who have not yet evolved but those who will live tomorrow. With the emergence of intertemporal principles and prospective justice the concern is addressed. It is with the concurrent voice and collective decision making that such aspects are answered. Public participation, right to information, access to justice are and will be the pillars for an effective environment policy. With the growing concern for the environmental crisis, we the people of this generation must pledge to act in integrity to provide to the people of tomorrow no less than what we have of today. The breach of this moral and natural law would not only be the invocation of legal responsibility but would rather devastate the very essence of natural law.
References
- Edith Brown Weiss, Intergenerational Equity, Oxford Public International Law, https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1421
- Pratyush Pandey, History of Environmental Law, Law Times Journal, http://lawtimesjournal.in/history-of-environmental-law/
- Segger, M., & Khalfan, A. (2004-11-25). Origins of the Sustainable Development Concept *. In Sustainable Development Law: Principles, Practices, and Prospects.: Oxford University Press. Retrieved 19 Jul. 2020, from https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199276707.001.0001/acprof-9780199276707-chapter-2
- What are your environmental rights, UN Envi.,https://www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights/what-0
- Raffensperger C. Models for protecting the environment for future generations. Cambridge (MA): Science and Environmental Health Network, International Human Rights Clinic at Harvard Law School; 2008. http://hrp.law.harvard.edu/wp-content/uploads/2013/02/Models_for_Protecting_the_Environment_for_Future_Generations.pdf
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