1. INTRODUCTION
With the arrival of the Anthropocene, it is apparent that human beings are currently locked into discourses, institutions, and patterns of behaviour – underpinned by vested interests – which have catastrophic impacts for earth systems.Footnote 1 One response to this is to call for the creation of institutions that represent future generations and nature. Such representation must necessarily be by proxy, giving voice to the ‘inarticulate’.Footnote 2 The term ‘representation’ is used in this article to refer to ‘proxy representation’ unless otherwise specified.
The article examines the normative arguments for representation of future generations of human beings in law and institutions, and compares these with normative arguments for representation of non-human ‘nature’. The term ‘nature’ is used in this article to refer to ‘that part of our world which has not been made by humans, but comes into existence and vanishes, changes and remains constant by virtue of itself’.Footnote 3 The purpose of this comparison is to assess whether these normative arguments involve common or conflicting value assumptions. For example, do justifications for the representation of future generations based on anthropocentric concepts of human rights or sustainable development contradict rationales for representing nature that rest on the inherent value of nature? To the extent that conflicting values are involved, are there nevertheless overlapping elements that push in the same direction in terms of policy prescriptions and institutional possibilities?
Given the urgency of addressing the global ecological challenge, this exercise has important practical dimensions. If synergies can be identified in relation to these normative arguments, this may help to build important alliances in pursuing environmental and ecological objectives in the reform of law and institutions. While these normative arguments are underpinned by a range of overlapping and sometimes contradictory philosophical and religious traditions and worldviews, involving different fundamental starting points and normative assumptions (for example, utilitarian versus rights based), identifying common ground between them would present a strong case for policy and institutional reform. In this context, David Schlosberg has helpfully emphasized the importance of a plurality of approaches to ecological or environmental justice, given the need to be sensitive to cultural and historical differences, which play a crucial part in how justice is articulated in particular contexts.Footnote 4 A similar approach is adopted in this article.
The article undertakes a comparative analysis in both theory and practice, with the second part of the article examining several real-world institutional mechanisms for representation of future generations and nature. These legal models indicate the types of normative argument that are likely to find traction in terms of particular representative institutions. This may help to gauge whether particular proposals designed to implement ecological justice are hopelessly utopian,Footnote 5 thus paying heed to the advice of pragmatists, such as John Dewey, that normative arguments should constantly be revised in the light of how they play out in the real world.Footnote 6
To date, most institutions aimed at representing future generations or nature have been established at the national, rather than international, level. Accordingly, the case studies presented here involve national institutions. Notwithstanding significant differences between national and international legal orders, state-based studies might provide models that may be incorporated into the international legal order. A significant limitation of the analysis here is that the case studies include industrialized countries only. Further research is required to include case studies from a range of developing countries given that, to be effective, institutions must be tailored to the particular social, economic, and cultural context.
The case studies are necessarily selective but aim to provide a range of possible models. The first case study involves an ombudsman approach, where a particular institution is established to represent future generations or nature. The Future Generations Commissioner for Wales (United Kingdom (UK)) is contrasted with the New Zealand Parliamentary Commissioner for the Environment. The second group of case studies involves mechanisms which ascribe legal personality to nature, with an examination of the recent legal developments in Aotearoa New Zealand and Australia, where legal personality has been ascribed to particular rivers.
The remainder of the article is structured as follows. Section 2 compares the normative frameworks for justifying representation of future generations and ecological systems. It sets out what ‘representation’ means in this context and then examines normative arguments based on justice. Section 3 addresses the case studies set out above and touches on whether these are transferable to the international level (3.3). Section 4 draws conclusions and suggests possible directions for reform.
2. NORMATIVE FRAMEWORKS FOR REPRESENTING FUTURE GENERATIONS AND NATURE
2.1. Representation and Interests
There is no single definition of ‘representation’. According to Andrew Rehfeld's influential definition, a person or institution ‘A’ represents a person or thing ‘B’ where A claims to act or speak on behalf of B with regard to a specified set of issues, and this is accepted by a particular audience.Footnote 7 In contrast, agency-based concepts of representation rely on the representor being authorized to represent the representee's interests.Footnote 8 An agency-based definition involving authorization by the representee clearly cannot work in relation to either future generations or nature. However, Rehfeld's concept of representation can work in relation to both. For example, a United Nations (UN) Commissioner for future generations or nature could, in the context of the UN climate negotiations, be said to represent future generations or nature if participants in these negotiations recognized the Commissioner as exercising this function through the applicable rules of procedure. Rehfeld's theory keeps distinct the issue of whether the particular act of representation is ethically legitimate in terms of truly promoting the representee's interests,Footnote 9 although, as Anja Karnein observes, there are usually at least some shared background norms between the representor and the representee.Footnote 10
So-called ‘proxy representation’ occurs when the representee is incapable of communicating its needs or interests, which may be because it does not yet exist, as in the case of future generations, or is incapable of doing so, as in the case of a severely disabled person, a non-human animal, or nature.Footnote 11 As specified above, the term ‘representation’ is used in this article to refer to ‘proxy representation’ unless otherwise specified.
Representation of future generations or nature may be direct or indirect. Consider, for example, a biologist undertaking research on climate impacts. The biologist might issue a report which highlights the interests of nature or future generations but strictly falls outside our definition of ‘representation’, as the biologist is not claiming to speak on behalf of nature or future generations. This is an example of indirect representation. This example may still fall within the Rehfeld concept of representation because highlighting the interests of nature or future generations serves a similar objective as claiming to speak on their behalf. Alternatively, the biologist may be involved in direct representation, for example, by claiming to speak explicitly on behalf of future generations, younger people, or even a particular threatened biological species, in a media interview or blog contribution as part of a political campaign run by an environmental non-governmental organization (NGO).Footnote 12
Representation may also be multifaceted in that a representative may represent more than one set of interests, and/or be recognized by more than one audience.Footnote 13 In the first example, the biologist's report may highlight the – various and potentially conflicting – interests of future generations and nature. Moreover, the audience can vary according to the context. Thus, for example, the report could be made in the context of an intergovernmental process, produced for the parties to the UN Convention on Biological Diversity,Footnote 14 with the audience primarily being state parties to this convention. Alternatively, in the second example, the blog piece could be aimed at a much broader audience with the intention of feeding into political campaigns by civil society aimed at putting pressure on governments to take stronger action on climate change.
Concepts of representation are closely linked to concepts of interests. Future generations, just like current generations, have multiple interests which cannot be reduced to a single dimension or currency.Footnote 15 Until recently, there was a tendency to assume that ‘interests’ were objectively ‘out there’, with the proxy representative having only to reveal them.Footnote 16 However, Mihnea Tănăsescu argues that representation involves a strong creative and relational element: a proxy brings into existence the interests concerned, through an active process whereby the representor necessarily injects a normative element into how they would like the world to be.Footnote 17 Similarly, Robyn Eckersley points out that proxy representation assumes a possibility that the proxy has knowledge of the future generations or ecological systems being represented. This article agrees with Eckersley's contention that knowledge in this context – including both scientific and Indigenous – must be interpreted through cultural and other mores, but that this is not to deny the existence of knowledge independent of the existence of the knowing agents.Footnote 18
Nature, of course, cannot literally speak to a proxy representative to communicate its interests; there is no shared language. However, other forms of communication might be possible. For example, the anthropologist Eduardo Kohn, in a study of Indigenous Runa in Avila in Ecuador, points out that communication for the Runa includes much more than language given that ‘nonsymbolic representational modalities pervade the living world – both human and nonhuman’.Footnote 19 Given that the Runa live in the forest with close proximity to, and relationships with, a host of non-human life forms, their identity is linked to ‘a whole host of trans-species and trans historical relationships’.Footnote 20 The key point is that proxy representatives speaking for nature can understand the preconditions for its flourishing through a range of means beyond language and science, drawing on the experiences of people who have not become as detached from nature as many living in highly urbanized contexts around the planet.
2.2. Justice
We now turn to normative arguments for the representation of future generations and nature; why should future generations and nature be represented by institutions at all? It is impossible to untangle this issue from the question of the mode of representation. We might, for example, conclude that representative institutions in this context are, in principle, desirable but should be empowered only to highlight policy impacts on future generations and nature, and not have the power to veto government decisions.
Justice and representation of future generations
Why should international institutions for future generations be established? One line of argument relies on the concept of ‘intergenerational justice’.Footnote 21 This argument may be summarized through the following overarching principles (P), fact (F) and conclusion (C) which logically flows from them.
Turning to each of these principles, P1 reflects the reality that international institutions have a range of functions, including peace building, addressing poverty, health issues, facilitating trade, and so on. P1 postulates that, in addition to these functions, international institutions should promote justice. There is, of course, no single concept of justice. A minimal concept of justice might require that the core or basic human rights of individuals essential for their well-being are met.Footnote 22 This does not preclude a more demanding set of criteria for justice based on a broader range of human rights. However, for my argument it is sufficient to rely on this narrower range of core rights. Thus, in the climate change context, the human rights to life, subsistence and health have been relied upon to ground an obligation of intergenerational justice, given that climate change impacts will necessarily increasingly impinge on these rights.Footnote 23 Alternative concepts of justice rely on an equality principle.Footnote 24 We do not have to decide between these approaches to make the argument. Relevant for present purposes is that, regardless of which concept of justice is deployed, the justice principle should be extended into the future, as failing to do so would discriminate against individuals based on when they happen to be born.Footnote 25 Such discrimination is arguably no less objectionable than denying the intrinsic value of a person based on where they happen to be born, or the colour of their skin.Footnote 26
As with justice, there are many definitions of intergenerational justice.Footnote 27 The strength of the ethical obligation to future generations under various theories of justice varies from a requirement to pass on the earth in at least as good a condition as one has received itFootnote 28 to the (less demanding) obligation to pass on the earth in sufficient condition to allow future generations at least a minimal enjoyment of core human rights.Footnote 29 This article proceeds on the basis of a core subsistence content for intergenerational justice: namely an obligation on existing human beings to ensure that, as a minimum, future generations enjoy core human rights (P2). For our purposes, it is sufficient to define the demands of intergenerational justice as a duty to ensure that persons born in the future enjoy core human rights to health, life, and subsistence.Footnote 30
Intergenerational justice tends to be conceived in a way which assumes never-ending economic growth.Footnote 31 Yet, both justice and intergenerational justice need to take into account the reality of the Anthropocene, with human beings now having an impact on the earth's various ecological systems. The reality of the Anthropocene and the risk of catastrophic climate change have led John Dryzek and Jonathan Pickering to suggest that intergenerational justice be reconceived as an obligation to ensure the continuing function of planetary ecosystems.Footnote 32 Human reliance on ecological systems suggests that this ecological justice framing largely points in the same direction as the core human rights framing outlined above, given that the continuing functioning of planetary ecosystems is essential for preserving the core human rights of future generations (see theories of ecological justice discussed in the next section).
F reflects the reality that international institutions – including policies and rules – currently do not meet the requirements of minimal intergenerational justice. One example of this is the failure of the global climate change regime to ensure that the interests of future generations are protected. When added up, countries’ individual pledges (so-called nationally determined contributions) to reduce greenhouse gas emissions under the Paris AgreementFootnote 33 will see global mean temperatures exceed the 1.5 to 2oC target set by the Paris Agreement.Footnote 34
Ostensibly, the international environmental law principle of sustainable development and related concept of intergenerational equity, enshrined in the Paris AgreementFootnote 35 and other treaties,Footnote 36 should ensure that future generations’ interests are incorporated into climate policymaking. However, these principles have not been fully implemented, arguably because of the continuing power of fossil fuel-related interests and economic growth-oriented discourses.Footnote 37 Deeper causes of the ecological crisis can be found in the legal systems and structures established in Europe from the late 15th to the 18th centuries, which were then globalized through colonization. The concepts of property rights and, in particular, the corporation, combined with a discourse of unlimited economic growth, have allowed largely unsustainable levels of natural resource extraction.Footnote 38 The concept of sustainable development was intended to counter this trend but at times has been used to justify economic development at the expense of the environment,Footnote 39 while the concept of intergenerational equity suffers from a degree of indeterminacy with an impasse between states preventing its further elaboration within the Paris regime.Footnote 40 Moreover, current institutions appear to be biased in favour of the present and short-term interests and against the interests of future generations.Footnote 41
These shortcomings suggest that a new approach is urgently needed. This leads us to the final step in the argument: the conclusion (C) that existing international institutions need to be reformed, or purpose-built institutions created which represent future generations, so that their interests will be factored into policymaking. Representation in this context must be by proxy, with the proxy making reasonable assumptions about the interests of future generations. As pointed out by Eckersley, proxy representation is the only possibility for representation of future generations, as the latter cannot delegate to contemporaries, and it is better than no representation at all.Footnote 42
Institutions with the aim of representing future generations may never be a substitute for adequate mainstreaming of future generations’ interests in governmental policymaking, but they can nevertheless play a modest role in fostering intergenerational justice.
Justice and representation of nature
Until recently, justice was conceived as relevant only to relations between humans. This flowed from the idea that justice concerned principles of distribution determined through discussion and negotiation between humans.Footnote 43 Both John Rawls and Brian Barry precluded non-human nature from the community of justice, while not denying that human beings had ethical obligations towards nature. Those propounding theories of ecological justice, such as Brian Baxter,Footnote 44 have argued that incorporating non-human nature within the community of justice is vital as this provides a stronger rationale for its protection than do moral principles. As Eckersley notes, all of these theories are based on a set of normative assumptions or core values.Footnote 45 The following paragraphs focus on these core values, seeking to identify the particular values that underlie various theories; such values, in turn, can potentially form the basis for mechanisms of representation. While necessarily selective, we briefly examine Brian Baxter's and David Schlosberg's theories of ecological and environmental justice, Meg Parsons’ and Deborah McGregor's theories of Indigenous ecological justice, and Nancy Fraser's and Özge Yaka's theories of socio-ecological justice.
Baxter extends the community of justice to non-human nature with the aim of ensuring a fair distribution of environmental ‘goods’ and ‘bads’ to all living beings. His purpose in doing so is to undergird the view that it is unjust for non-human species to become extinct as a result of the actions of humans.Footnote 46 A strong rationale for this extension is that the community of justice must include those humans who are incapable of communicating their interests, such as the severely disabled and the very young. On that basis, Baxter argues for extension to non-human beings who cannot communicate their interests.Footnote 47 The values underpinning Baxter's theory of ecological justice extend beyond the narrow interests of human beings by recognizing that all organisms can have ‘welfare goods’, meaning preconditions for their survival and flourishing.Footnote 48
Given that non-human nature cannot articulate its own interests, proxy representation is required.Footnote 49 According to Baxter's theory, what should be represented depends on the scope of what is considered within the domain of ‘moral considerability’. Baxter argues that moral status should extend to populations of all living organisms.Footnote 50
How do these theories resolve possible conflicts between humans and non-human nature? Baxter's approach to this question is to distinguish between essential and non-essential interests of particular organisms, giving priority to sentient over non-sentient and complex over less complex organisms.Footnote 51 Human beings are at the apex of this hierarchy and generally prevail over other sentient species. Hence, ecological justice does not require equal treatment of non-human sentient beings but rather, equal consideration of their interests.Footnote 52 This, however, necessarily leads to the difficult issue of the moral considerability of different elements of nature. In the case of conflict, how do we weigh the respective interests of a human being against those of a chimpanzee, a fly, or the COVID-19 virus? Baxter argues that a justifiable hierarchy will protect essential welfare interests based on the preconditions for survival above non-essential interests, with the interests of complex organisms trumping those of non-sentient beings.Footnote 53 Implicit in such hierarchies is a prioritization of values, such as sentience, complexity, and capacity to make moral judgements. Deep ecologists have countered that these values reflect an anthropocentric bias, arguing that ‘all things in the biosphere have an equal right to live in blossom and to reach their own … self-realisation’.Footnote 54 Finding agreement on these values, particularly in an international setting, is a daunting task. While some international instruments do recognize the intrinsic value of non-human nature (such as the Convention on Biological DiversityFootnote 55), this is rare, and most international environmental instruments reflect an anthropocentric position.Footnote 56 As Louis Kotzé states, international environmental law ‘is predominantly based on a green-washed neoliberal anthropocentric ethic, devoid of a deeper sense of ecological obligation’.Footnote 57 Moreover, the piecemeal structure of environmental treaties fails to take into account the interlinked nature of the earth systems.Footnote 58
All theories of ecological or environmental justice are ultimately underpinned by values, and there is no agreement on these. Graham Smith notes that environmental philosophers propose a range of ‘possible candidates as the characteristic or feature of the natural world that is the basis of moral considerability, including life (Taylor, 1986[Footnote 59]; Attfield 1991[Footnote 60]), complexity (Matthews 1991[Footnote 61]) naturalness (Rolston 1989[Footnote 62]; Elliott 1995[Footnote 63]) and autopoiesis (Eckersley 1992[Footnote 64])’.Footnote 65 In addition, there is debate about the entity within which intrinsic value is said to reside – namely, whether this should be individuals, species, ecosystems, the biosphere as a whole, or some combination of these.Footnote 66
One response to this conundrum is to argue that ecosystems or particular species are inherently valuable. But as John O'Neill points out, while we can identify the ‘inherent value’ or interests in the sense of preconditions for the flourishing of a particular plant or animal, this cannot in itself justify our moral duty to ensure that conditions for flourishing are met. One cannot derive an ‘ought’ from an ‘is’.Footnote 67 Moreover, such an exercise would entail a risk that anthropocentrism is replaced by anthropomorphism – that is, the projection of human characteristics onto other non-human beings.Footnote 68
Nevertheless, one could argue that, however moral considerability is defined, current institutions are biased against the interests of non-human nature, and that proxy representation of non-human nature is therefore justified in order to attempt to correct this bias. This bias is evidenced by the continuing acceleration of biodiversity loss, with more than one million plant and animal species currently under threat.Footnote 69 The concept of bias, however, entails a benchmarking of fairness, and this in turn would require agreement on a concept of justice which applies between human beings and ecosystems.Footnote 70
Schlosberg's theory of environmental justice extends Baxter's theory based on the insight that injustice occurs through the lack of recognition accorded to individuals and groups, both politically and culturally, which both inflicts harm and forms the basis for distributional injustice.Footnote 71 He argues that recognition and participation are not preconditions for justice but rather are integral to justice itself as, without recognition and participation, maldistribution of goods cannot be understood and justice-based claims cannot be made.Footnote 72 This, in turn, provides a powerful rationale for proxy representation of both marginalized human beings and non-human nature.Footnote 73
A striking feature of Schlosberg's theory is its incorporation of ‘participation’ within a justice framework. This concept of participation is extended in Schlosberg's theory to include participation of non-human nature through proxies, which allows the interests of those incapable of speaking for themselves to be incorporated into the decision-making processes.Footnote 74 The representation of non-human nature can be based in science, storytelling or traditional knowledge.Footnote 75
Schlosberg's response to the difficulty of finding agreement on a particular definition of environmental justice and underlying values is to argue for a pluralistic approach, in which differences are resolved through ‘recognition’ and ‘mutual engagement’.Footnote 76 Following this approach, justice is reflected in various cultural contexts in different ways, and theory is informed by how the environmental movement evolves in practice.Footnote 77 This is illustrated by the cooperation between labour, unions, Indigenous and other groups in the 1999 WTO conference protests in Seattle (United States).Footnote 78
Indigenous scholars have taken a fresh approach to ecological justice. There is no single theory of Indigenous ecological justice (IEJ), but some general features of this approach can be identified. A characteristic of this scholarship is its application of Indigenous ontologies to issues of environmental injustice, which are considered in a broader institutional framework of capitalism, colonialism, and patriarchy.Footnote 79
There are certain common threads in IEJ approaches. The first is the idea that human beings are part of nature, thus rejecting a bifurcation between human beings and nature.Footnote 80 Secondly, nature is seen as having spiritual, and not just instrumental and resource values for humans. For example, a river's water is not seen as a resource and source of property rights to be accessed equitably, but rather as having spiritual value, and the river itself can even be conceived of as an agent.Footnote 81 Thirdly, individuals have a responsibility to maintain a balance between the elements of nature of which they are a part, and this duty is exercised with regard to one's ancestors and future generations, within a circular rather than linear concept of time.Footnote 82 In contrast to the western liberalism concepts of autonomy and rights, Indigenous freedom is conceived of as being based on acting ‘with and through others’, with law consisting ‘in the informal responsibility to coordinate mutual aid (gifts and needs) within particular forms of relationship’.Footnote 83
IEJ also includes a call for decolonization, which provides a strong rationale for representation. According to this approach, what is being represented cannot be split between nature and human beings, given that humans are conceived of as being part of the very fabric of nature. Moreover, ‘representation’, with its roots in western political philosophy, is to be conceived more broadly in different cultural contexts. A striking example is the ‘water walks’ undertaken by Indigenous women, which have taken place since 2003 around the Great Lakes and St Lawrence River in North America, tracing the traditional migration routes of the Anishinaabek people and aimed at raising awareness of the spiritual value and cultural significance of waters.Footnote 84 A participant wrote of this experience:
This journey with the pail of water that we carry is our way of Walking the Talk. We really don't have to say anything. Just seeing us walk is enough to make a person realise that, yes, we are carriers of the water. We are carrying the water for the generations to come.Footnote 85
Representation is premised on recognition, which is a two-edged sword in this context. The act of asking for recognition by Indigenous peoples can reinforce their subordinate position.Footnote 86 Recognition of native title in the Australian context has been limited by the dominant state and court system, which establishes the terms of recognition.Footnote 87 Negotiated agreements have offered an alternative route but often the government has offered these on a ‘take it or leave it’ basis.Footnote 88
IEJ has had some traction internationally, reflected in various Indigenous environmental declarations since the 1992 Rio Earth Summit,Footnote 89 including, for example, the so-called 2012 ‘Lima Declaration’ adopted at the Rio+20 Indigenous Peoples International Conference on Sustainable Development and Self-Determination.Footnote 90 It is also reflected in the work of scholars who have proposed according rights to nature, including the development of earth jurisprudenceFootnote 91 and a number of academic networks such as the Earth Law AllianceFootnote 92 and the Task Force on Earth System Law.Footnote 93 IEJ has the potential to reshape radically the way in which humans regard nature and provide solutions for climate change.Footnote 94 However, as suggested earlier, this would require a dramatic change in current approaches.
The IEJ approach is a ‘bottom up’ rather than ‘top-down’ approach to justice theory in that it is strongly influenced by the practice and language of those suffering injustice. This dimension is also shared by the socio-ecological justice (SEJ) theory of Nancy Fraser and Özge Yaka. According to their approach, the value of elements of nature – as an extension of social reality and identity – is incorporated into their concept of social justice. This is illustrated by Yaka's application and extension of Fraser's theory, which examined the roll-out of more than 2,000 hydro schemes across Turkey without any community consultation, spurring a strong protest movement across the country.Footnote 95 The discourse of this movement – particularly in the less industrialized north-east of Turkey – reflected the notion that the river was not only essential for subsistence, but integral to people's identity, with nature here seen as an extension of the self so that ‘if the river is harmed, I am also harmed’.Footnote 96 This worldview is in stark contrast to more dominant perspectives across the globe, where industrialization and urbanization have dramatically weakened human links with their natural environment.Footnote 97
SEJ is anthropocentric, but the value of nature to humans is recognized as including not just the instrumental value of nature in providing food but also as including the conception of nature as intrinsic to the identity of human beings. SEJ includes representation as an integral component of justice, as representation is requisite for making justice claims and ‘furnishes the stage on which struggles over distribution are played out’.Footnote 98
Justice: final remarks
This necessarily selective survey of ecological theories of justice suggests that they are founded on a range of values, with moral considerability contested in theories that rely on the intrinsic value of nature. Schlosberg's notion of justice pluralism would suggest the need to find common ground between these approaches through mutual engagement. After all, each of the different theories provides a rationale for the representation of nature, however defined, and thus contributes to countering the current strong bias against nature being accorded anything more than instrumental value.Footnote 99
Representation was a crucial element in Schlosberg's theory as well as the IEJ and SEJ theories outlined above. Representation can be given a particular form in accordance with local cultural practice, with IEJ scholarship providing the important insight that representation may reflect particular Indigenous values which extend beyond the relatively narrower concepts of representation rooted in western political philosophy. Representation is seen as a vehicle for giving a voice to the marginalized, with the aim to better take their interests into account.
The anthropocentric intergenerational justice theories referred to in Section 2.2 above provide a compelling rationale for the representation of nature, given human reliance on it. Human beings are heavily reliant on the biological wealth of nature for food, medicines, and other goods, and, more generally, ‘human flourishing is dependent upon the productive, protective and waste assimilative functions of ecosystems’.Footnote 100 Bryan Norton points out that there is a persuasive case for the wider preservation of species and ecosystems as this provides opportunities for new and potentially useful species to emerge, which turn out to be vital for human well-being.Footnote 101 Norton argues for a precautionary approach, given the possibility that elements of nature currently of little utility to humans might in future be of great value and thus ought to be preserved.Footnote 102
Justice in both its more traditional liberal form and in its ecological variety provides compelling reasons for representing future generations and nature. There are, however, key differences in these approaches to justice. Traditional liberal versions of justice (as represented by Rawls and Barry) limit the community of justice to human beings. Nevertheless, intergenerational justice under these approaches can arguably require a duty to preserve nature, given human dependence on it. Accordingly, there is a strong rationale for establishing institutions to represent both nature and future generations.
An advantage of justifying institutions for future generations on the basis of intergenerational justice, rather than on ecological justice, is that the core values upon which intergenerational justice rests are better established in the international order. A possible concern is that a human rights-based rationale will implicitly strengthen perspectives that involve instrumental and destructive views of nature. One way to mitigate this risk is for institutions that represent future generations to include in their mandate a strong version of sustainability, according to which ecological systems must be protected to ensure their ongoing viability, given human dependence on such ecosystems.Footnote 103
As mentioned, most international instruments reflect an anthropocentric view rather than one based on the intrinsic value of nature, which would more easily mesh with an ecological justice or IEJ approach. A Global Pact for the Environment has been proposed in the UN system over recent years with the aim of identifying and addressing gaps in international environmental law.Footnote 104 However, this project has remained modest in scope and has stopped well short of proposing a more radical overhaul that would recognize the need to move beyond existing anthropocentric approaches,Footnote 105 and the reality that various planetary boundaries have already been crossed, or are about to be crossed.Footnote 106 Such sweeping reform efforts should be pursued with utmost vigour given the current global ecological crisis.
IEJ theories have great potential to reshape views towards nature, which could spur reform. The theory of socio-ecological justice formulated by Fraser and Yaka and empirical work demonstrate that nature as a strong component of social identity is not unique to Indigenous peoples. The extension of representation beyond humans to non-human nature prima facie has strong logical coherence. If we accept that inarticulate human beings (such as the severely disabled) should be represented by proxies in the form of guardians, then there is arguably a strong onus to show why nature, or elements of nature, should not be similarly represented.Footnote 107 There is an interesting parallel with Article 29 of the UN Convention on the Rights of Persons with Disabilities, which requires state parties to ensure that persons with disabilities are able to participate in public life, including through their right to vote.Footnote 108 This has been interpreted as requiring states to put in place measures that ensure that persons with disabilities have a vote in elections on an equal basis with others.Footnote 109 Lack of capacity to express a view, whether as a result of a disability or being born in the future, should not be a bar to participation. However, in the case of nature, this again opens up the question of exactly what is to be represented: is it ‘nature’ in general, particular species, sentient/non-sentient organisms, or something else?
As discussed above, obtaining agreement on these questions is a significant challenge.Footnote 110 Proxy representation could be of all non-human nature, but perhaps this is unworkable as the particular interests involved are so diverse.
2.3. Normative Frameworks: Concluding Comments
Normative justifications for proxy representation of future generations and nature have significant points of divergence. A traditional justice-based justification for the representation of future generations relies on the value of equality in relation to human dignity, all human beings being equally entitled to human dignity, with the latter defined by core human rights. Theories of ecological justice incorporate nature or elements of nature within the justice community of interests. This overcomes the ‘speciesism’ inherent in liberal models of justice, but opens up difficult issues as to the scope of moral considerability, which ultimately concerns the values which the theory is seeking to maximize. Given the human reliance on ecological systems, arguably these rationales for proxy representation point in the same direction; but has this been the case in practice?
Given the urgency of the global ecological crisis, it is vital to find synergies in these normative arguments to maximize the chance of reform. Peter Singer emphasizes that ethical theories must be capable of implementation in the real world.Footnote 111 They must have practical feasibility: ‘ought’ implies ‘can’. We therefore now turn to a number of case studies to illuminate how the normative arguments outlined above work in the real world.
3. CASE STUDIES
This section examines examples of existing institutions that represent future generations or nature. Each institution is analyzed through consideration of the following questions:
• What is the implicit or explicit normative basis of the institution: is it grounded in intergenerational justice, sustainability, or some other normative framework?
• Is the institution's mandate framed in terms of intergenerational justice, ecological justice, or some other concept?
• Has the institution been successful in attaining its stated goals?
The purpose of these short case studies is to identify which of the normative arguments outlined in Section 2 are likely to have the most traction in political campaigns to establish relevant institutions at the international level. The methodology follows Dewey's pragmatism in that theoretical constructs should be revised in the light of how they play out in the real world.Footnote 112 In the analysis that follows, ‘institutions’ refers not only to bricks-and-mortar institutional entities but also to rules or laws. The case studies include institutions founded on more traditional intergenerational justice rationales, as well as others that are connected with more recent ecological concepts, such as ascribing legal personality to nature.
Success is inherently difficult to measure in relation to these institutions and, for the purposes of this article, is defined as the extent to which these institutions achieve their stated goals, whether these are defined in terms of sustainability, intergenerational justice or human rights. This article relies on the sparse secondary literature that analyzes the success of these bodies. As noted in the introduction, there have been limited attempts to integrate the interests of nature or future generations within international institutions. The case studies therefore involve national mechanisms only. Whether the particular model can be exported to the international level remains the subject of future research.
3.1. Ombudsman/Parliamentary Commissioner Model
This section analyzes selected existing commissioner/ombudsman institutions at the national level in order to shed light on the types of normative argument that are most likely to gain support for such institutions at the international level. The analysis is necessarily tentative, given that each national institution is rooted in particular social and cultural traditions, including constitutional frameworks, which are not necessarily transferable between countries, or from the national to the international level.Footnote 113
The Aotearoa New Zealand Parliamentary Commissioner for the Environment (PCE) is arguably the most effective national institution in this area. It has been in operation for more than 35 years and was the trailblazer for a number of national institutions developed in the 1980s.Footnote 114 The Commissioner is rigorously non-partisan, independent of the government, well resourced, and reports to the Parliament.Footnote 115 The PCE has been described as an environmental guardian and watchdog, with a mandate to provide independent reviews of major environmental policy and regulatory issues, as well as having a discretionary investigative function, acting as a quasi-ombudsman in relation to individual complaints.Footnote 116 It has no enforcement powersFootnote 117 and can only make recommendations, which is perhaps one reason why it has survived for so long.
While the PCE does not purport to represent future generations, it clearly operates for the benefit of future generations, and can therefore be considered as an indirect representative of future generations.Footnote 118 The mandate of the PCE reflects a range of environmental values, both anthropocentric and intrinsic. Section 17 of the 1986 New Zealand Environmental Act provides that the Commissioner is to ‘have regard to’:
(a) maintenance and restoration of ecosystems of importance, especially those supporting habitats or rare, threatened, or endangered species of flora or fauna
(b) areas, landscapes, and structures of aesthetic, archaeological, cultural, historical, recreational, scenic, and scientific value
(c) any land, water, sites, fishing grounds, or physical or cultural resources, or interests associated with such areas, which are part of the heritage of the tangata whenua and which contribute to their well-being …Footnote 119
Jonathan Boston has observed that the operation of the Commissioner has varied over the years depending on the particular approach of the appointed individual. For example, Morgan Williams, who was PCE between 1997 and 2007, adopted a strong sustainability approach and emphasized biophysical limits, reflecting his background as a biologist,Footnote 120 whereas Jan Wright, who was PCE in 2007 to 2017 with a background in public policy, physics and energy, gave precedence to climate change.Footnote 121
The effectiveness of the PCE is difficult to assess. The PCE reports have undoubtedly made significant contributions to the policy process, with a recent report on the UK climate change legislative framework feeding into the policy processes that led to Aotearoa New Zealand's progressive climate change framework.Footnote 122 Without the Commissioner, environmental outcomes – and impacts for future generations – would undoubtedly have been worse. However, the Commissioner has not brought about an ‘enduring or transformational change’ in terms of, for example, a move away from a growth-oriented discourse.Footnote 123
Intergenerational justice is not mentioned in the mandate of the PCE but is included in the Aotearoa New Zealand Conservation Act 1987, which was drafted at the same time as the PCE was created.Footnote 124 As for the representation of nature, the PCE does not claim to represent elements of the environment but rather is to ‘have regard’ to these elements of nature, which falls within the category of indirect representation. More research is required to determine what role (if any) these normative arguments about representation of future generations and nature had in gaining political support for the establishment of the PCE.
The Future Generations Commissioner for Wales was created in 2015 under the Well-being of Future Generations (Wales) Act (Well-being Act).Footnote 125 The Well-being Act imposes duties on ministers and public bodies to act on ‘well-being objectives’ and take reasonable steps to carry out the ‘sustainable development principle’.Footnote 126 It introduces reporting and review mechanisms involving the statutory offices of the Future Generations Commissioner and the Auditor.
The Act defines both ‘well-being objectives’ and the ‘sustainable development principle’. Under the ‘well-being objectives’, Wales is to be prosperous, resilient, healthier, more equal, and globally responsible. It should have cohesive communities, vibrant culture, and a thriving language.Footnote 127 Under the ‘sustainable development principle’, ‘public bodies must act in a manner which seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs’.Footnote 128 To act in that manner, a public body must take into account ‘the importance of balancing short term needs with the need to safeguard the ability to meet long term needs, especially where things done to meet short term needs may have detrimental long term effect’.Footnote 129
The Act states that the general duty of the Commissioner is:
(a) to promote the sustainable development principle, in particular to:
(i) act as a guardian of the ability of future generations to meet their needs, and
(ii) encourage public bodies to take greater account of the long-term impact of the things that they do, and
(b) for that purpose to monitor and assess the extent to which well-being objectives set by public bodies are being met.Footnote 130
According to the Well-being Act, the Commissioner's role is to work with ministers, public bodies and public service boards, as well as exercising oversight, along with the Auditor, to make recommendations and undertake independent reviews.Footnote 131 On the face of it, this sounds potentially quite bureaucratic and possibly not very effective, but the current Commissioner, Sophie Howe, is very proactive and publicly visible, and has made a number of high-profile interventions, including opposing the proposed M4 relief road – a major infrastructure project.Footnote 132 On 20 September 2020, she issued a statement to the effect that Wales was failing to fund a climate emergency, and outlined the necessary funding.Footnote 133
The Commissioner's role is very broad and extends beyond environmental issues. Following consultations, the Commissioner identified six priority areas: ‘skills, adverse childhood experience, better ways to keep people well, planning, housing and transport’.Footnote 134 The Well-being Act embeds the sustainable development principle into ministerial and bureaucratic processes and provides oversight, transparency, some accountability, and a guardian advocate for future generations. As stated by Jan Linehan: ‘It is not perfect. The “sustainable development principle” has been subverted in the past. … whether the office of the Commissioner can deliver what is needed depends on its proactiveness and its “leadership”’.Footnote 135
Peter Davies, a former Future Generations Welsh Commissioner, explained at a workshop held in Hobart (Australia) in June 2019 that a reference to ‘sustainable development’ in the Government of Wales Acts, which regulated UK devolution of powers to Wales,Footnote 136 provided the hook on which the Welsh Well-being Act was developed. He explained that in the extensive negotiation process that led to the legislation, a politician had a conversation with an elderly constituent who stated that she did not understand what ‘sustainable development’ meant but she did care about her children and grandchildren. This led to the use of the language of ‘well-being of future generations’ while, in substance, sustainable concepts are found throughout the legislation.
Bearing in mind the normative argument outlined in Section 2, it is clear from the legislative mandate of the Future Generations Commissioner for Wales that intergenerational justice as a normative principle is central, demonstrated by the anthropocentric language of ‘well-being of future generations’. This is combined with a sustainable development principle that emphasizes the ‘ability of future generations to meet their needs’. The Commissioner is to act as a guardian, not of future generations directly, but of their ‘ability to meet their needs’.
A lesson from these two examples is that the normative framework for representation of future generations or nature can take a range of forms. There is no ‘one size fits all’, and institutions need to be developed in the light of the particular cultural, social, and historical context. The Aotearoa New Zealand PCE ostensibly reflects environmental values, while the Wales Commissioner more strongly represents intergenerational justice and sustainability values. Measuring the effectiveness of such institutions is difficult, but the examples of Aotearoa New Zealand and Wales suggest at least some modest success in contributing to policy processes in terms of furthering environmental outcomes and promoting long-term thinking. Further research is required to ascertain more precisely the role played by the normative argument set out in Section 2 in the development of these mechanisms.
3.2. Representation of Nature
There are a number of recent examples at the national level of legal personality being ascribed to nature, with an institution being created to speak on behalf of a particular element of nature.Footnote 137 One such example is the 2017 Te Awa Tupua (Whanganui River Claims Settlement) Act of Aotearoa New Zealand (Te Awa Tupua Act), which declares the Whanganui River to be a legal person with ‘all rights, powers, duties, and liabilities of a legal person’.Footnote 138 This Act needs to be understood in the context of the Aotearoa New Zealand colonization process, with Treaty of Waitangi negotiations between the Māori and Crown accelerating following the creation of the Waitangi Tribunal in 1975.Footnote 139 The Te Awa Tupua Act can be considered a compromise to avoid deciding between conflicting claims to sovereignty over the land in question between the Crown and Māori.Footnote 140 The Act creates the office of Te Pou Tupua, which is to be the ‘human face of Te Awa Tupua’ and act to ‘promote and protect the health and well-being of the Te Awa Tupua’.Footnote 141
The normative framework includes references to the ‘intrinsic values that represent the essence’ of the river, including its role of being a ‘source of spiritual and physical sustenance’, and in relation to the natural resources and life of the Māori communities in general.Footnote 142 Indeed, the Māori connection and responsibility for the river is reflected in the phrase ‘Ko au te Awa, ko te Awa ko au’: ‘I am the river and the river is me’.Footnote 143 A strategy group is established in relation to the river representing a wide range of interests, including Māori communities, environmental and conservation interests, tourism, recreational and primary industries.Footnote 144
Spiritual, intrinsic, and instrumental values are reflected in this legislative framework. The legislation puts into a legal framework the spiritual relationship between the Māori communities involved and the river. However, recent scholarship has challenged whether according rights to natural entities is inherently compatible with Māori ways of thinking.Footnote 145
In terms of the arguments canvassed in Section 2, this legislative scheme emphasizes environmental values, both intrinsic and instrumental, but also Māori spiritual values, with the Māori perspective involving a symbiotic relationship between nature and human beings. How effective this legal framework will be in achieving environmental outcomes is difficult to assess at this stage, and this remains an important research task.
The second example is that provided by legislation in Victoria (Australia) in relation to the Birrarung/Yarra River. The 2017 Yarra River Protection (Wilip-gin Birrarung murron) Act (Vic) (Yarra River Act) establishes the Birrarung Council with a mandate to ‘advocate for protection and preservation of the Yarra River’.Footnote 146 The legislation also provides for the preparation of a Yarra strategic plan based on a long-term community vision for a period of at least 50 years.Footnote 147 The Preamble to the Act states that the intention of the Parliament is that the Yarra River be ‘kept alive and healthy for the benefit of future generations’.Footnote 148 The following paragraph recognizes ‘the intrinsic connection of the traditional owners to the Yarra River and its country’, and acknowledges them as custodians of the land called Birrarung. The Act sets out the so-called Yarra protection principles, which include ‘integration of environmental, social and cultural considerations in order to improve public health and well-being and environmental benefit’.Footnote 149 The Act also provides that decision making in relation to the river is required to take into account climate change,Footnote 150 and recognizes an obligation on each generation to ‘ensure that the environmental, social and cultural benefits that have been acquired are maintained or enhanced for the benefit of future generations’.Footnote 151 There is also reference to environmental principles – including the precautionary principle, social principles, recreational principles and cultural principles – with a requirement that traditional owners of the Yarra River be acknowledged through partnership and ‘representation and involvement in policy planning and decision-making’.Footnote 152
Both of these examples manifest normative underpinnings in the representation of nature involving both intrinsic and instrumental values. A striking feature of both is the recognition of Indigenous cultural bonds with the river.Footnote 153 Each of the institutional mechanisms also allows for the involvement of other values and uses, which include recreational, aesthetic, and scientific uses. The Yarra River Act also refers expressly to future generations, which is consonant with the intergenerational justice argument sketched above. In contrast, the Te Awa Tupua Act does not seem to reflect a normative discourse of intergenerational justice. However, it is perhaps inherent in the Act in the sense that if the intrinsic value of the river is respected, this will benefit future generations.Footnote 154 How these instruments play out in practice remains to be seen.
We now turn to see if these mechanisms and related normative arguments are transferable to the international level.
3.3. International Level
Are these mechanisms transferable to the international level? At the UN Rio+20 conference in 2012 a proposal was made for a commissioner for future generations, but it failed to gain acceptance owing to sovereignty-related concerns among developing countries that such a mechanism could be used to monitor countries.Footnote 155 The UN Secretary-General has recently announced the intention to appoint a Special Envoy for Future Generations,Footnote 156 which appears to build on the previous Secretary-General's report on intergenerational solidarityFootnote 157 and a proposal by the Mary Robinson Foundation for the appointment of global guardians.Footnote 158 It remains to be seen what the mandate and functions of this Special Envoy will be.
Other possibilities remain to be explored. Christopher Stone, in his landmark 1972 article ‘Should Trees Have Standing’, raised the possibility of separate commissioners for the oceans, biodiversity and other elements of the global environment.Footnote 159 This proposal has not been taken up. Another possibility would be the negotiation of a new optional protocol to the UN International Covenant on Economic Social and Cultural Rights (ICESCR)Footnote 160 requiring member states to introduce a national mechanism for representation of future generations or nature, giving states discretion with regard to implementation. Such a step would be modest, but nevertheless a step in the right direction. In adopting any of these proposals, it would be crucial to ensure that such mechanisms would not impinge on the development interests of developing countries. Absent progress at the international level in this direction, progress can continue at the national level, which may in turn contribute to transnational governance through a network of national representative mechanisms. The World Futures Council in recent years has established an informal network of institutions for future generations and experts.Footnote 161
4. CONCLUSION
Values underpinning justice can justify the representation of both future generations and nature. The values supporting institutional representation of future generations have tended to be anthropocentric – for example, values based on a human rights ethos. Nevertheless, these values can also justify the representation of nature, given human reliance on functioning ecological systems.
IEJ and ecological justice theories prima facie provide a clearer justification for institutions to represent nature. Given that these theories explicitly involve the inherent value of nature, there is a compelling argument for representation of interests inherent in nature. However, on closer inspection, these theories are built on different assumptions as to which entities are ascribed moral status, ranging from sentient beings to living organisms. While reform of international law and institutions is urgently needed to make them less anthropocentric and more responsive to the imperatives of the global ecological crisis, finding agreement on moral status seems to present more difficulties than relying upon the globally accepted human rights norms which can justify institutions for future generations.
SEJ theories also provide a strong basis for the representation of nature, given that representation is integral to the definition of justice in these theories, and with these theories recognizing human identities being linked to nature.
The case studies demonstrate that apparent conflicts between values, as they manifest in the discourse, may be less significant in practice. For instance, the Aotearoa New Zealand Parliamentary Commissioner for the Environment is not expressly mandated to represent future generations. Nevertheless, the Commissioner has acted in a reasonably effective way to promote the interests of future generations, relying on an environment-based mandate, which includes a range of environmental values, from the inherent value of nature to more anthropocentric recreational and scientific values. In contrast, the Welsh Future Generations Commissioner relies on a discourse of ‘welfare for future generations’, incorporating sustainability concepts which recognize humans’ dependence on nature. While these models have different normative foundations, they arguably push policymaking in the same direction.
One tentative conclusion is that, in the case studies surveyed, both intergenerational justice and environmental values have played a significant role in justifying the institutions. The differences between these models suggests that there is no ‘one size fits all’ model for institutions to represent future generations or nature. The tentative conclusions reached in this article need to be tested against a wider range of case studies involving developing countries and within different cultural and socio-economic contexts.
Notwithstanding the scholarly quest for a universal theory of ecological justice, it is difficult to deny the reality that understandings of justice must be interpreted through local cultures and institutions.Footnote 162 People in different contexts, times and places will value things differently, and in that sense a plurality of approaches is inevitable.Footnote 163 Accordingly, while there are common themes of fairness, distributional principles and the like, how these are applied in particular contexts must necessarily be historically and contextually based.Footnote 164
The case studies canvassed here involve representation of nature through the attribution of legal personality. They are underpinned by values of the intrinsic worth of nature and also Indigenous beliefs involving a river having spiritual value. The legal frameworks for the Te Awa Tupua/Whanganui and Birrarung/Yarra Rivers reflect a range of values involving the intrinsic value of nature, as well as anthropocentric values, including Indigenous fishing rights and non-Indigenous recreational and industrial values. In both cases the range of values is reflected in the decision-making models that have been established. On the face of it, providing legal personality to a river would ensure that greater weight is given to the ecological values of the river when these conflict with other values. However, it remains to be seen how these institutional arrangements play out in practice, and whether these models ultimately offer greater environmental benefits compared with other approaches based on, for example, stewardship. Importantly, the evaluation of these models needs to consider the extent to which Indigenous perspectives and values are recognized and included.
Affording legal personality to elements of nature needs to be considered in the broader context of innovative strategies to bring the legal system into harmony with ecological systems.Footnote 165 Possible strategies are wide-ranging and include stewardship and guardianship models and a reinvigoration of the concept of ‘the commons’, which arguably entails obligations towards future generations.Footnote 166 Other pathways include making explicit the extension of human rights to future generations and enshrining in an international instrument an obligation to preserve both humanity and the earth, given their interdependence.Footnote 167 These various strategies need to be compared carefully in terms of their likely efficacy.
Further research is also required to examine whether proxy-style international institutions which ascribe legal personality to elements of nature would be feasible and potentially effective. In the lead-up to the Rio+20 conference, NGOs proposed a UN commissioner for future generations with extensive powers, including the power to bring cases before the International Court of Justice.Footnote 168 The recent announcement by the UN Secretary-General of his intention to appoint a Special Envoy for Future Generations could be the first step towards a mechanism of this type.
In theory, there is no reason why a proxy representative of particular species of endangered animals, or ecological systems, could also not be established at the international level. However, the obstacles to be overcome in the pursuit of such reforms are substantial. States zealously guard their sovereignty, which could be seen as being jeopardized by such a development. Moreover, a move towards institutions involving representation of nature may first require a shift away from anthropocentric values, and towards the values that underpin IEJ and SEJ theories. This shift may be extraordinarily difficult to implement. In tandem with these efforts, such proxy arrangements can and should be developed at the national level, which may pave the way for their development at the international level.
