1. Introduction
Climate change is a temporal phenomenon spanning past, present, and future – an extended process that necessarily covers a lengthy period of time. Dipesh Chakrabarty notes that the predicament of the climate crisis is that the lasting effects of present and past actions ‘perpetrate a sense of the present that disconnects the future from the past by putting such a future beyond the grasp of historical sensibility’.Footnote 1 Increasingly it is recognized that the climate crisis goes beyond the boundaries of time within national and international legal frameworks. A commonly used argument to overcome the inability to address the temporal extendedness of climate change is that we should stretch the scope of application of current human rights frameworks to include potential future harm – be it through constructing rights of future generations or reconceptualizing the rights paradigm through concepts such as intergenerational equity.Footnote 2
This article critically interrogates these concepts and their use in practice at a higher level of abstraction. Drawing on insights from the phenomenological tradition,Footnote 3 I aim to bring the calls for better protection of future generations in climate litigation in line with an awareness of the fundamental issues that considerations of the future comprise. The conceptual issue at the heart of this article is that conceptualizing future generations as a distinct group of rights-bearers cannot include the future in the present without, at the same time, creating a temporal gap – that is, a distance in time along the lines of a linear progression of temporal moments. The added value of introducing a phenomenological account in the already crowded debate on future generations lies in its unique understanding of futurity that can help to make sense of this conceptual issue.
Taking up Hans Lindahl’s critical phenomenology of legal ordering,Footnote 4 I argue that the impossibility of representing future generations as present rights-holders is rooted in the strangeness of the future. Lindahl’s theory provides an alternative understanding of positive law that enables us to make sense of the asymmetrical temporal relation between the present and the future,Footnote 5 which stands in stark contrast to understandings of law that presuppose symmetry in legal relations.Footnote 6 Taking into account future generations within the present requires our processes of legal ordering to engage with questions about the nature of our responsibilities and obligations towards the future.
It is precisely by posing such questions that the practice, or praxis,Footnote 7 of future-based climate litigation is at its strongest. The article thereby builds on the premise that our inabilities to address the harmful effects of climate change (be it present or future) are not merely caused by the fact that climate change is an intractable policy issue,Footnote 8 but are more fundamentally rooted in how law as a process of ordering determines the ways in which we live together in a common world. Consequently, the practice of future-based climate litigation shows potential to contribute to a fundamental transformation of our world.Footnote 9
The article unfolds as follows. In Section 2, I turn to the so-called ‘rights turn’ in climate litigation and its accompanying revitalization of intergenerational equity discourse. Section 3 introduces the central issue of my argument: the inability of future-based climate litigation to take into account the strangeness of the future. To bring the theoretical problematization back to the lived experience of the law, Section 4 puts under closer scrutiny two examples of future-based climate litigation that show both downfalls as well as positive potential to effectuate more future-oriented action in the present. Section 5 thus aims to provide a theoretical substantiation for interpreting the discourse on future generations in a positive light – that is, future-based climate litigation evokes a disruption of the normality of legal ordering by emphasizing the asymmetrical responsibility of the present towards the future.Footnote 10
2. The Rights Turn and the Revitalization of Intergenerational Equity
While climate change-related cases grounded in human rights are not a new phenomenon, over the last decade legal practitioners have turned increasingly to mobilizing human rights to hold states accountable for failing to protect people from the harm of climate change – known as the ‘rights turn’.Footnote 11 The re-emergence of intergenerational equity ties in with this broader trend in the emphasis that is put on the detrimental consequences for humanity in the future if we fail to address climate change now.Footnote 12
2.1. The Problem of Rights
At first glance, human rights law appears to be a highly utilizable and fitting legal framework for addressing climate change in that ‘in the worst-case scenario, climate change spells human catastrophe’.Footnote 13 Before turning to the conceptual issues of temporality to which future generations discourse refers, it is important to scrutinize arguments that rely on the universalizing logic of human rights as they may oversimplify the issues at stake.
Exemplary of this tendency are arguments that use interest theory as their base for effectuating greater protection for future generations. According to interest theory, someone has a right to something if that something is of a sufficiently weighty interest to them to impose duties on others.Footnote 14 In terms of universal human rights, these interests are then supposed to convey fundamental interests that all human beings share – past, present, and future generations included. In this line of thought, Bridget Lewis claims that there is a sufficient ‘theoretical basis for protecting the rights of future generations’Footnote 15 and that Edith Brown Weiss’ influential concept of intergenerational equity Footnote 16 can be considered an extension of interest theory – even ‘an articulation of the specific obligations that current generations owe towards future generations’.Footnote 17 In a similar vein, Simon Caney argues that since we can imagine what the interests of future generations are, we can conceive of future generations as subjects possessing human rights.Footnote 18
While both Lewis and Caney take up interest theory to substantiate an extension of rights protection for the benefit of future generations, interest theory is also taken up by scholars who argue the opposite. According to them, ascribing rights to future generations on the basis of their supposed interests needs to take seriously the so-called ‘right-bearer contemporaneity’ requirement.Footnote 19 This requirement encompasses Ruth Macklin’s argument that before a person becomes an ‘actual person’, the person cannot be entitled to have human rights simply because of the impossibility of identifying the rights-bearer.Footnote 20 In other words, if interest gives rise to human rights, we need to know whose interest is served.Footnote 21
Confronting the contemporaneity requirement, Derek Bell contends that anthropogenic climate change does constitute a violation of the human rights of future generations because the reason anyone possesses human rights is not their specific identity – but, rather, ‘human rights are grounded in our humanity’.Footnote 22 So, if we know that there will be human beings in the future, we know that they possess rights as humans. He concludes that ‘[t]he indeterminacy of the identity of future persons does not offer any ground for denying that they will have human rights’.Footnote 23
However, when grounding rights on/in humanity, we are at the same time determining what humanity ought to be. A universal determination based upon humanity’s innate interests excludes the possibility of different interests: we are still representing humanity as this rather than as that.Footnote 24 While human rights understood as universal norms are supposed to take into account that the most vulnerable to climate change (for instance, the global south, Indigenous peoples, and other marginalized communities) are often historically the least responsible for climate change, it is precisely for the representation of certain interests as something universally determinable that critical voices from the global south (Third World Approaches to International Law (TWAIL), feminist theories, queer theories and others) have extensively criticized the human rights movement.Footnote 25
2.2. Against Future Generations?
While the plea to protect future generations might intuitively seem appealing, Stephen Humphreys sets out convincingly why the concepts of rights of future generations and intergenerational equity are problematic.Footnote 26 According to Humphreys, Brown Weiss’ concept of intergenerational equity is rooted in a certain ‘Lockean proviso’Footnote 27 on resource useFootnote 28 – that is, John Locke’s understanding that the private acquisition of natural resources from the ‘commons’ should be limited to not exhausting more than is strictly needed in any specific case and consequently leave enough in the ‘commons’ for others to claim.Footnote 29 The problem with this Lockean underpinning of Brown Weiss’ intergenerational equity principle is that Locke’s ‘proviso’ is not intended for a law-based order but rather applies to his state of nature. Consequently, this ‘proviso’ was/is used mostly to justify existing resource allocations on a notional historical basis.Footnote 30 It does not take much to recognize how this understanding of resource allocation is problematic.Footnote 31
According to Humphreys, rights of future generations and intergenerational equity are called forth in a manner that aims to effectuate a certain responsibility from present generations to future generations.Footnote 32 Humphreys rightfully points out that the discourse thereby creates a distinction between we (the present generation) and they (future generations). This is problematic because ‘the invocation of a “future generation” reflexively collectivizes the present’Footnote 33 – a collectivization that is certainly not a reality:
Politically, a universal ‘we’ stands to slice through the seemingly intractable obstacles that have dogged climate action for decades: the ethically irreproachable, but politically thorny, appeals to ‘equity’ and ‘common but differentiated responsibilities’ upon which half the world insists; the refusal to cede, or recognize liability or compensation, that characterizes the other half.Footnote 34
While Humphreys seems almost to deny any upside to the discourse on rights of future generations, my aim in this article is to make a more modest intervention. To do so, I follow Margaretha Wewerinke-Singh, Ayan Garg and Shubhangi Agarwalla in their reply to Humphreys, in which they emphasize the ‘emancipatory power [of future generations discourse] for actors who have thus far remained at the margins of international law’.Footnote 35
While agreeing with Humphreys’ claim that an overemphasis on the future can come at the expense of present concerns, Wewerinke-Singh, Garg and Agarwalla contest Humphreys’ outright dismissal of future generations discourse from a climate justice perspective.Footnote 36 Efforts in climate litigation can ‘address both present and future concerns while avoiding the window dressing or greenwashing, parochialism and hypocrisy that Humphreys criticizes’.Footnote 37 Drawing on a wider range of sources and perspectives, particularly from the global south,Footnote 38 they bring forth how strategically incorporating rights of future generations can open doors for effectuating ‘accountability for past, present and future climate harm’.Footnote 39 Understood as such, climate litigation can play a role in confronting the global north for its contribution to ‘actual or projected climate harm’.Footnote 40
However, the disagreement between both accounts is smaller than the articles’ respective titles would imply: ‘Against Future Generations’ and ‘In Defence of Future Generations’. Humphreys himself acknowledges this in a further reply: ‘I do not believe that the authors and I disagree on very much’.Footnote 41 Both Humphreys and Wewerinke-Singh and co-authors endorse the instrumental use of future generations as a means of effectuating responsibility in the present for future concerns. Taking this responsibility to a higher level of abstraction, I hope to find a further middle ground between an overly optimistic account of the potential of rights of future generations on the one hand and denying any such potential outright on the other. I take my cue here from Wewerinke-Singh and co-authors:
[who] encourage future scholarship to engage with these critiques, both in theory and practice, while considering the emerging discourse on future generations within and beyond the courtroom. By doing so, we can better understand the complex interplay between intergenerational equity and climate justice and how these concepts can work in tandem to address the pressing challenges posed by climate change.Footnote 42
3. Representation and the Strangeness of the Future
This section introduces the phenomenological concept of the strangeness of the future to make sense of the promise and perils of future generations discourse. From the outset, it is important to distinguish between (i) interpretations that seek mostly to position future generations as legally present rights-holders and (ii) the more fundamental contestations through which the praxis of future-based climate litigation confronts the normality of current legal orders with the strangeness of the future. As I remain highly critical of the former, it is the latter dimension which my article ultimately aims to clarify and strengthen.
While this section centres mostly on theoretical considerations in abstraction, such considerations manifest in the lived experience of the law as litigants struggle with the impossibility to represent future generations as something present.
3.1. Moving Beyond the Surface
On the surface we find, as Julia Dehm notes, that ‘advocates have sought to give an intertemporal dimension to rights claims by positioning future actors as legally present rights-holders by according rights to yet-unborn “future generations”’.Footnote 43 Though not encompassing all future generations narratives, this reading is not only premised on a conceptual mistake, it also fails to do justice to the work done by advocates and scholars who fight for greater recognition of the long-term harm caused by climate change.
If the problem were indeed merely an issue of extending rights protection to a currently excluded group, then effectuating better protection for future generations could be accomplished by enshrining a specific human right for future generations in existing human rights treaties, establishing a new treaty for future generations rights, or simply applying current rights frameworks to future generations.Footnote 44 While some of these efforts are currently being pursued, including future generations as a present group of rights-holders presupposes an abstraction of a group of future individuals distinguishable from the present group. At the same time, it suggests that this abstracted group of future individuals can be faithfully represented in the present.
This abstraction of a future group from the present by allocating rights to different stakeholders along the lines of linear progressive temporalities does not account for the fact that it is in the present that the future (and past) exists. The phenomenological insight provided in Maurice Merleau-Ponty’s chapter on temporality lets us recognize that the past and future are not merely distinct temporalities; rather, they are always already situated within the present.Footnote 45 Time as experience, in this phenomenological sense, points to the recognition that ‘each present reaffirms the presence of the entire past that it drives away, and anticipates the presence of the entire future or the “to-come”’.Footnote 46 The present here is then not limited to itself but rather transcends towards a future to-come and towards a past having-been.Footnote 47
When arguments for future generations’ rights aim to bring the future into the present through representation, they abstract from our situatedness in time. Importantly, and this is where the conceptual issue lies, the actuality of future rights does not come into existence in the future but rather always stays grounded in the present as rights to-come. Because at the point in time when the future arrives, potential rights subjects are no longer future rights-bearers; they have become present and thus lose their essence of being future. Rights of future generations therefore always remain strange to us in the present. The strangeness I am concerned with draws heavily on Lindahl’s interpretation of the limits of legal orders:
The limits of legal orders become visible in strange behaviour that, irrupting into a legal order from the domain of the unordered, transgresses the spatial, temporal, subjective, and material boundaries that establish whether behaviour is legal or illegal. If the boundaries of legal orders determine what is (il)legal, they manifest themselves as limits when challenged by a-legality, that is, by strange behaviour and situations that, evoking another realm of practical possibilities, question the boundaries of (il)legality.Footnote 48
3.2. Representing Future Generations
Famous for being one of the first successful climate actions, the 2015 Urgenda case in the Netherlands can be considered a pioneering example of climate litigation for the ‘advent of intergenerational arguments’.Footnote 49 As noted by Daniel Bertram, at first instance the Hague District Court controversially ruled that:
[The] possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the State must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.Footnote 50
Interestingly, in his citation of the same excerpt,Footnote 51 Bertram leaves out one of the most controversial aspects of the Urgenda ruling: that is, ‘whose interests Urgenda represent’. It is this representation that continues to haunt future-based climate litigation. Bertram himself seems very aware of this as exemplified by his consideration later in the same article:
Prima facie, the difficulty of operationalizing intergenerational modalities of legal representation pervades all intergenerational litigation in one way or another. Who can speak for those who have yet to (or potentially never will) come into existence?Footnote 52
While Bertram considers that a way of ‘navigating around the affectedness requirement is to entrust transgenerational institutions with legal representation’,Footnote 53 he neglects to engage with the more fundamental question of whether such legal representation can be deemed legitimate. The problem of an all too easy presumption of legitimacy in this regard is that, as Lindahl notes, ‘[f]uture generations are necessarily absent, not only because they must be represented, but because they can neither authorize nor disavow representational claims made on their behalf’.Footnote 54
In a similar fashion to Bertram’s consideration of the representational nature of future-based climate litigation, Luigi Corrias takes up claims to protect future generations in an analysis of speech acts in youth protests, specifically Greta Thunberg’s seminal speech at the United Nations (UN) Climate Action Summit in 2019.Footnote 55 Corrias asserts that Thunberg’s message contains a challenge to current representation of future generations in the form of contestation: ‘not in my name’.Footnote 56 It is thus not that representations of future generations are missing in our legal order, they are rather misrepresented. The interesting aspect of Thunberg’s claim is that her speech act represents a group to which she in fact cannot fully belong. While Corrias notes that Thunberg can be considered a legitimate representative of future generations because of the following she has amassed from younger generations, Corrias does recognize that ‘a real acknowledgement of future generations would require taking serious the radical nature of this claim’.Footnote 57
To make sense of representational claims, it is important to note that legal orders (as collective action)Footnote 58 are actualized through a first-person plural perspective.Footnote 59 Jacques Derrida, in an analysis of the Declaration of Independence,Footnote 60 groundbreakingly recognized this by pointing out the paradoxical nature of representation in constituent power:
The ‘we’ of the Declaration speaks ‘in the name of the people.’ But these people do not exist. They do not exist as an entity, the entity does not exist before this declaration, not as such. If it gives birth to itself, as free and independent subject, as possible signer, this can hold only in the act of the signature. The signature invents the signer. This signer can only authorize him- or herself to sign once he or she has come to the end – if one can say this of his or her own signature in a sort of fabulous retroactivity.Footnote 61
In other words, considering that a collective thus cannot collectively say ‘we’, it can find its voice only by way of a spokesperson.Footnote 62
In this line of thought, Lindahl rightfully points out ‘that a collective intends, believes or acts means that a collective is deemed by someone to intend, believe or act’.Footnote 63 In turn, only if the collective that is represented identifies itself as being the collective that grounds the representational act can there be a legitimate representation of the collective. As the identification of individuals collectively as a collective retroactively gives authority to the representation, the normative authority of representations comes from the represented, which at the same time comes into existence only through the representation. This is why the representation and the collective stand in a paradoxical relation.Footnote 64
The implications of this insight are important. As the ‘representation of a collective involves the twofold claim that there is a collective (its existence) and what it is/ought to be about (the point of its existence)’,Footnote 65 the collective continuously has to re-define what binds it together as a collective.Footnote 66 The emphasis on re here is meant to stipulate that definition is continuous in time. What Lindahl shows is that legal orders are more properly a process of ordering rather than static orders.Footnote 67 The critical insight here is that the representational dynamic of collective ordering always remains open to being questioned by members (and non-members) of the collective.Footnote 68 This fundamental questionability is contained in the question: does this representation represent me/us? Exactly this question forms the foundation for Thunberg’s contestation of ‘not in my name’ and, more generally, the claims made by those pursuing future-based climate litigation.
3.3. The Strangeness of the Future
As Lindahl points out, the retroactive nature of representation contains a temporal rupture.Footnote 69 Even though constituent power must be initiated by a spokesperson who represents a collective, this initiative constitutes a collective only if it is taken up by its addressees. Consequently, the representation of the addressees must both be viable as a future possibility and recognisable, albeit retroactively, as articulation of what the collective already shares – or better yet, ‘the articulation of who they already are’.Footnote 70 This retroactive element in the identification of the collective as a collective is, as Lindahl borrows from Merleau-Ponty,Footnote 71 based upon ‘a past which has never been present’.Footnote 72 The temporal rupture in the paradoxical nature of representation thereby questions the idea that the establishment of a legal collective through constituent power is to be characterized as an absolute formal beginning.Footnote 73
This brings us back to the impossibility of representing future generations in present climate litigation efforts because of the future’s inherent strangeness. The very fact that the dynamic of representation requires that representations are to be retroactively legitimized means that we can represent future generations only if those future generations recognize themselves as part of the collective that represents them. It is here where we arrive at a conceptual impasse. While the legitimization of the representation needs to appear in the future, at the point in time when that future arrives it would no longer be the future but rather a new present. As Bernhard Waldenfels notes, ‘a future that had nothing alien or strange about it would not be the future’.Footnote 74 As such, representations of future generations cannot mend the temporal rupture inherent in representational claims, because the represented collective is, in its very essence, always absent in the present.Footnote 75
The debate on the rights of future generations often overlooks this conceptual issue and, in turn, seems merely to oscillate between arguments about the legitimacy or illegitimacy of the mechanisms or institutions that ought to represent future generations. However, the more important question is whether this representation is justifiable at all within the current limits of our legal ordering. As such, pleas to represent future generations confront legal orders with an ‘interruption’ that ‘disrupts the conditions of legal intelligibility’.Footnote 76 Put in Lindahl’s terms, the representations of future generations stem from a place of a-legality.Footnote 77 As a result, simply legitimizing representations of future generations – by installing caretakers, interest groups, or enshrining human rights specifically for their interest, as Bertram proposesFootnote 78 – cannot overcome the exclusion of future generations in their present representation. In other words, including future generations by representing them as present rights-holders still excludes precisely that which makes future generations strange to us in the present: their futurity.
3.4. Staying with the Problem of Representation
With these issues in mind, it is not surprising that the Dutch courts in later stages of the Urgenda case circumvented the question of whether Urgenda’s representation of future generations was legitimate.Footnote 79 The Court of Appeal, for example, denied the state’s argument that there is an insufficient ground for legal action against the state because Article 34 of the European Convention on Human Rights (ECHR)Footnote 80 does not allow for ‘public interest actions’,Footnote 81 and asserted that ‘Dutch law is decisive in determining access to the Dutch courts’.Footnote 82 Considering that the Dutch Civil Code provides for class actions of interest groups in Dutch courts (Article 3:305a of the Dutch Civil Code),Footnote 83 and that the ECHR has direct effect in the Dutch legal order (Articles 93 and 94 of the Dutch Constitution),Footnote 84 the Court noted that ‘the claim of Urgenda, insofar as acting on behalf of the current generations of Dutch nationals against the emission of greenhouse gases on Dutch territory, is admissible’.Footnote 85 The Court emphasized the representation of current individuals to ground the admissibility: ‘After all, it is without a doubt plausible that the current generation of Dutch nationals, …, will have to deal with the adverse effects of climate change in their lifetime’.Footnote 86
The Dutch Supreme Court, in turn, affirmed the Court of Appeal decision and rejected the appeal, considering that ‘[t]his case involves an exceptional situation’,Footnote 87 grounding Urgenda’s representation of ‘the residents of the Netherlands’ on the basis of the state’s duty to protect the right to life (Article 2 ECHR) and the right to private and family life (Article 8 ECHR).Footnote 88 Again, the Supreme Court seemed only to refer to the residents of the Netherlands in the present tense. Even though it might seem, as Bertram argues, that cases such as Urgenda can overcome the problem of representation by accepting the claimants as intergenerational institutions,Footnote 89 the further judicial development of Urgenda not only exemplifies that courts remain cautious in actually doing so, it also reiterates the importance of considering the conceptual implications of representation in future-based climate litigation.
Here we find the added value of the phenomenological insights provided above. While Humphreys rightfully criticizes future generations discourse for essentializing the future and thereby neglecting existing inequalities in the present, the phenomenological account emphasizes that the essentializing rhetoric of the future generations discourse is inherent in future representations in general. There is a certain inescapability of misrepresentation in all representation. However, to stop there would mean to falsely reproduce a presentism that makes considerations of the future impossible. As Waldenfels emphasizes, ‘[t]he predicative assertion that the future does not exist or does not yet exist makes things too easy for itself’.Footnote 90 Humphreys himself reiterates, in his reply to his critics, that he is certainly ‘for’ future generations: ‘How can one not be?’Footnote 91 His concern in arguing against future generations is rather anchored in ‘epistemological and normative grounds’ and aimed primarily against the rhetorical appeal of calling on future generations.Footnote 92 I share this concern. By introducing a phenomenological angle, I hope to elevate the normative and epistemological dimension of Humphreys’ critique with an ontological perspective, which remains grounded in the everyday practice of those who stand at the forefront of challenging present and future climate harm.
4. Disruption and Continuation in Climate Litigation
Since a legitimate representation of future generations is impossible, does this mean that we cannot help but misrepresent future generations, and should therefore cast aside future impacts of our actions today? Not at all. Both pleas for the inclusion of future generations into legal orders by deeming the representation of their interests legitimate, as well as the denial thereof, have the same problematic starting point: they abstract the future solely into a distinct, bordered-off temporality. In the following section two different instances of future-based climate litigation – the human rights petition Billy and Others before the UN Human Rights Committee (HRC) concerning the Torres Strait Islanders,Footnote 93 and the Neubauer case before the German Constitutional CourtFootnote 94 – will illustrate how considerations of future concerns already apparent in the practice of climate litigation can be interpreted as both unfruitful and successful contestations to the normality of legal ordering.
4.1. Judging Back and Forth in Time
Billy and Others exemplifies why, even if and when the rights of future generations and their representation are considered legitimate, this frame still eludes any meaningful action if it remains within the conception of a linear progressive temporality. The more promising aspect of the petition rather is the recognition of culture as inherently transitory over time, which reveals a more fundamental disruption of the contemporaneity requirement that a simplified understanding of future generations rights eludes.Footnote 95
In Billy, the HRC assessed whether Australia was in violation of Articles 6 (right to life), 17 (right to private life), 27 (right to culture), and 24(1) (rights of the child)Footnote 96 of the International Covenant on Civil and Political Rights (ICCPR).Footnote 97 With regard to Article 6, the applicants argued that the state party failed to prevent a ‘foreseeable loss of life’ as a result of the impacts of climate change.Footnote 98 According to the applicants, the state party ‘must devote maximum available resources and all appropriate means to reduce emissions in order to comply with its obligations under article 6’.Footnote 99 Whereas the argument on grounds of Article 6 referred to a ‘foreseeable’ situation, Articles 17 and 27 were invoked on the grounds of the applicants’ already affected private lives and traditional way of life.Footnote 100
Among other arguments, Australia argued ‘that the communication is … inadmissible under article 1 and 2 of the Optional ProtocolFootnote 101 because the authors invoke potential future harms’,Footnote 102 therefore lacking the status of victimhood. Reaffirming its findings in Teitiota,Footnote 103 the HRC held that only if applicants are actually affected can they claim victim status in the sense of Article 1 of the Optional Protocol.Footnote 104 While Australia argued against the affectedness of the applicants, the HRC stated that it is ‘a matter of degree how concretely that requirement should be taken’.Footnote 105 Admissibility could follow if the ‘risk of being affected is more than a theoretical possibility’.Footnote 106 The HRC thus makes it seem like there is a certain threshold of expected affectedness which allows future harm to be invoked – thereby establishing some kind of timeliness criterion.
The Committee declared that the impacts of climate change were indeed more than a theoretical possibility for the applicants in the case at hand and therefore their claims were admissible.Footnote 107 While admissibility was established for all articles included in the petition, the HRC found violations only of Articles 17 and 27 ICCPR in its consideration of the merits. Regarding Article 6, it noted that the time frame of 10 to 15 years suggested by the applicants could still allow for intervening acts by the state party. The HRC did not consider itself in the position to conclude that ‘adaptation measures taken by the State party would be insufficient so as to represent a direct threat to the authors’ right to life with dignity’.Footnote 108 Notably, the HRC refrained from giving any definition of what a right to life with dignity entails, except that waiting 10 to 15 years for transformative change to materialize is apparently dignified.
The HRC did consider that Australia had violated its positive obligations under Articles 17 and 27 ICCPR by not acting in a timely and adequate manner.Footnote 109 The HRC grounded this conclusion on the fact that ‘the climate impacts mentioned by the authors represent a threat which could have reasonably been foreseen by the State party’, especially as the issue had been raised by the applicants’ community since the 1990s.Footnote 110 The curious thing here is that the HRC assessed time in two different ways. On the one hand, it limited the application of Article 6 because of a sufficient time frame to make amends – that is, future time.Footnote 111 In so doing, it reaffirmed the interpretation of future rights along the lines of a linear understanding of time which abstracts the future as a bordered-off temporality. On the other hand, it granted the applicants’ claim on the grounds that the state party had not acted in a timely manner – that is, past time.Footnote 112
The first of these conclusions exemplifies why the establishment of a right to life for future generations would not change the assessment in any meaningful way. By concluding that the open possibility to make amends does not ground a legitimate claim to a violation of the right to life in the present, what is actually obstructed is the possibility for change in the present moment of time that allows for transformative action. A right to life for future generations would not change that assessment in any meaningful way as long as the future is considered merely as a distinct point in time. I remain critical of how the HRC looked mostly backwards in time in its assessment of the responsibility that Australia has for its violations of the possibility of handing down the Torres Strait Islanders’ way of life. However, the HRC’s consideration of the transitory essence of culture does give an indication of how the rights of future generations can be understood as an asymmetrical responsibility in the present towards the future – that is, the obligation to hold open the possibility of a future so that culture can be transmitted over time.
4.2. Rights Obligations Over and In Time
The Neubauer caseFootnote 113 before the German Constitutional Court followed a similar path to the Urgenda caseFootnote 114 in the Netherlands, where concerned citizens challenged the government’s insufficient climate action. The claimants in Neubauer alleged that Germany, by insufficiently implementing its commitments under the Paris Agreement,Footnote 115 is unable to protect the potential harm that climate change poses to their fundamental rights as laid down in the German Constitution (Basic Law).Footnote 116 The plaintiffs argued that Germany violated ‘the right to a future consistent with human dignity’, which they derived from Article 1(1) of the Basic Law (right to human dignity) in conjunction with the responsibility that binds the political process to protect the natural foundations of life as enshrined in Article 20(a) of the Basic Law (protection of the natural foundations of life and animals).Footnote 117 Similarly they argued that Germany violated Article 2(2) (right to life and physical integrity) in conjunction with Article 20(a).Footnote 118 Violations of Article 12(1) (occupational freedom) and Article 14(1) (guarantee of property) were called upon in conjunction with Article 20(3) of the Basic Law with regard to related guarantees laid down in Article 2 (right to life) and 8 (right to private and family life) ECHR.Footnote 119
Similar to the Urgenda verdict, the claims were considered admissible as ‘the complainants who live in Germany are potentially faced with immense reduction burdens after 2030 which might jeopardize their freedom’.Footnote 120 However, what makes Neubauer interesting is that the German Court interpreted fundamental rights as having an inherent intertemporal nature: ‘Under certain conditions, the Basic Law imposes an obligation to safeguard fundamental freedom over time and to spread the opportunities associated with freedom proportionately across generations’.Footnote 121 It is thus not simply the fact that potential future harm was more than a theoretical possibility, as seemed to be the consideration of the HRC in Billy and Others; nor was it about a direct threat to the person involved, as was the line of thought in Urgenda. Instead, because fundamental rights are ‘intertemporal guarantees’,Footnote 122 the Court found a responsibility in the present to take into account future impacts.
Even though the German Constitutional Court indicated that it understands human rights as not solely dependent on the contemporaneity of rights-bearers, Bertram validly critiques the outcome as enjoining the state to prevent the present from harming the freedom of future generations to burn fossil fuels – at the expense of even later generations.Footnote 123 While the Neubauer decision opens up an interpretation of future rights that is not bound to establish legal standing for future generations, it nevertheless filled in that openness with a fossilized conception of the possibilities that future generations should have.Footnote 124
Against the misrepresentation of future possibilities apparent in Neubauer, and in line with a more fundamental phenomenological understanding of time, I contend that argumentative practices, like the climate-related cases described above, could lead us to redefine how our legal ordering addresses the future without foreclosing this redefinition. While representing future generations as present rights-holders contains a representational impossibility, claiming rights for the benefit of future generations in the present does confront the legal order with a question it cannot answer. It proposes, in Lindahl’s terms, a question that cannot be answered from within the logic of the legal order – that is, a question that cannot be answered without redefining our present (legal) world.
Redefining the present, as put forward here, would not just entail the imposition of a place and time for the future within present legal orders. The problem with creating such a space and time for a necessarily absent group is whether that place can be considered the future’s own place. Lindahl’s inquiry into intergenerational justice for more-than-human collectives exemplifies why assimilation of a group can come at the expense of an unjust appropriation of the space and time.Footnote 125 In fact, the assimilation of future generations as present rights-holders actually denies the future its own place. Instead, Lindahl emphasizes that the ‘response-ability’,Footnote 126 which makes future generations so dependent on us in the present, entails our being responsible ‘for the very possibility of a future’.Footnote 127 It is precisely this responsibility that future-based climate litigation ought to accentuate.
5. A Responsibility Towards the Future
Understanding the future as the to-come lets us recognize that the promise of future generations discourse is not so much tied to giving the future standing in our present legal orders. It is not about including the future generations as legitimate actors in the present. In this vein, Ferdinando Menga sharply notes that ‘the more one insists on looking at the present as a source capable of enacting a chain of obligations towards the future, the more the future is reduced to being an appendix to the present’.Footnote 128 The future becoming this appendix to the present, I would argue, concerns the appropriation of the future’s strangeness by excluding its futurity. Nevertheless, the praxis of future-based climate litigation can contribute to re-orientating legal ordering(s) to take into account the asymmetrical responsibility of the present towards the future by confronting the normality of our legal ordering.Footnote 129
In this section I join hands with recent critical accounts of legal theory that problematize extending rights protection and propose prioritizing obligation over right.Footnote 130 Ultimately, these critical accounts can help us to make sense of the asymmetrical relation between the present and future without falling back into a presentism that Menga rightfully criticizes.Footnote 131 Against Menga’s dismissal of ‘enacting a chain of obligations towards the future’,Footnote 132 however, I contend that there is a certain alignment between the phenomenological interpretation of the future generations discourse and the priority of obligation arguments.
5.1. Responsiveness and Responsibility
As Waldenfels notes, ‘living time’ in the present ‘consists in the way that life is always in advance of itself and constantly surpasses itself’.Footnote 133 If intergenerational equity is considered merely as a contract between actors separated over a linear progression of time, the question remains whether ‘a just and appropriate distribution of rights and duties between different generations’ can take into account that we cannot treat ‘the unequal as equal, the unlike as like’.Footnote 134 Waldenfels overcomes this issue by recognizing that the question of representation is something with which all legal orders are confronted. According to Waldenfels, normative rulings and regulations should therefore be regarded as answers and responses that arise from collective claims and demands.Footnote 135 The emphasis on responsiveness in Waldenfels’ phenomenology is important here precisely because it points to the asymmetrical positionality of the present in terms of its temporal orientation towards the future.
Interestingly, Waldenfels evokes an etymology of the word ‘generosity’ in order to retrieve ‘generativity’ as a ‘productive event that is oriented towards the future’.Footnote 136 Through the German word for ‘generosity’ (Freigebigkeit) Waldenfels arrives at the idea of Freigeben and Freilassen as a ‘giving away and letting free that opens up an other future, a future for the other’.Footnote 137 This opening up is rooted in Levinas’ ‘response of responsibility’Footnote 138 as ‘the core of an ethics of responsivity that not only answers for the consequences of what has been said and done, but begins and proceeds from what is to be said and done here and now’.Footnote 139
Eva Buddeberg similarly builds on Levinas’ ethics of responsivity in the face of the other to accommodate ‘our responsibility towards future generations’.Footnote 140 As she sets out, Levinas recognizes that ‘in their subjectivity, even before their formation as a subject and without conscious awareness of this, every human being is affected by the other’.Footnote 141 In Levinas the ‘subject is subjected (sujeté) to the other because, although it cannot totally apprehend the other, it is nonetheless always determined by them’.Footnote 142 The subject is therefore conceptualized in terms of its passivity in the world.Footnote 143 In other words, it is the other that approaches the self and in turn emulates a responsibility of the self to respond to the other.
Van der Walt, too, takes up Levinas’ emphasis on responsibility and considers that the ‘encounter with the other’ demands a response.Footnote 144 Future generations thus confront us in the present with an obligation that precedes any explicit claim made by them on us – an asymmetrical obligation that precedes the future’s right to a response. As Menga similarly puts it, ‘the subject is haunted by the other prior to the conditions of symmetry, cooperation, and, thereby, contract’.Footnote 145
5.2. Situating the Priority of Obligation within the Response-ability of the Present
The implication of considering asymmetrical legal relations and the challenge it poses to the symmetrical understanding of law come to light in a remarkable article on the Rights of Nature (RoN) by Daniel Matthews.Footnote 146 In this article, Matthews argues that because rights language remains problematic for addressing climate change and its effect on nature, we need to consider the possibility to think legal relations in terms of obligations instead of rights.Footnote 147 This proposed shift in thought on legal relations is, as Matthews contends, concerned with a fundamental question of ‘the ordering of associations’.Footnote 148 The imposition of ordering in his article resonates, while not explicitly, with the insights provided by Lindahl’s critical phenomenology of legal ordering.
While Matthews’ inquiry concerns the discourse on Earth jurisprudence and its proponents who insist on extending rights for other-than-humans, the similarities between the discourse on RoN and rights of future generations are fairly obvious.Footnote 149 Both discourses make sense of our anthropogenic condition defined by the looming environmental degradation and, on the surface level, seem to rely heavily on extending the scope of rights for currently excluded groups. The issue with the reliance on rights is that these efforts remain ‘inextricably tied to modern law and its various entailments’.Footnote 150 Conversely, extending the scope of rights confirms that claims, which challenge the normality of our legal ordering, can only be enforced precisely through those structures of law that such claims aim to disrupt.
However, as Matthews notes, the underlying rationale for the RoN discourse is not to create new rights-bearers but rather to ‘render us sensitive to the forces and relations that are shaping political space in the Anthropocene’.Footnote 151 Understood as such, posing unintelligible claims for the benefit of future generations disrupts the normality of our legal ordering and opens up the possibility for an affective reorientation towards the future. Menga’s remark that ‘some trajectories of politics and legal praxis’ are already ‘nourished by … an ethico-anthropological reconfiguration, [that] might trigger the required revolution’ ties in here.Footnote 152 I argue that it is in praxis that such a revolution in legal thought is effectuated.
Bringing our discussion back to the lived experience of the law, Emma Lees and Emilie Gjaldbæk-Sverdrup rightfully note: ‘One effect of Urgenda has been to emphasize the existential threat of climate change and the temporal consequences of climate change-related harm’.Footnote 153 They assert that, in a similar fashion, the Supreme Court of Colombia in Future Generations v. Ministry of the Environment Footnote 154 reasons that ‘the rights of future generations, being the same as the rights of current generations, are undoubtedly affected by the current lack of action in relation to the climate’.Footnote 155 With reservation on the interpretation of the similarity between rights of future generations and present generations, it is groundbreaking that the Colombian Court grounds the rights of future generations not on the intrinsic value of the potential future rights-bearers but on the ‘(i) ethical duty of the solidarity of the species and (ii) on the intrinsic value of nature’.Footnote 156 With the resulting decision that the ‘principle of solidarity, for this specific case, is determined by the duty and co-responsibility of the Colombian state to stop the causes of the GHG emissions from the abrupt forest reduction in the Amazon’,Footnote 157 the Future Generations case can be seen as a prime example of a successful disruption of the normality of legal ordering, which could serve as an inspiration for future litigation efforts.
The assertion that the rights of future generations are based on the ‘ethical duty of solidarity of species’ and on the ‘intrinsic value of nature’Footnote 158 seems to conform to the priority of obligation arguments in that it grounds the protection of future generations in the present possibility to safeguard the future. The Court appears to recognize a primacy of duty before a jural relationship comes into being. It is precisely the asymmetrical ability of the present to respond to future concerns, its response-ability, with which it holds in its hand the very possibility of a future. Like Lindahl, Marie-Catherine Petersmann thematizes Donna Haraway’s concept of response-ability in an effort to question the ‘onto-epistemological premises and presuppositions’ of ‘international environmental law’s extant framework’.Footnote 159 Petersmann’s problematization of RoN can be transposed as a critique of the future generations discourse in the sense that the extension of rights to future generations risks sacrificing non-present ‘alterity’ by morphing future being into a presentist template of rights protection.Footnote 160
From a phenomenological perspective, the principle of solidarity that the Colombian Court calls upon seems to derive from our situated being in the world with others. As Heidegger puts it, ‘being-with is an existential constituent of being-in-the-world’.Footnote 161 The constituent primacy of our non-solitary existence here lets us recognize that, as beings in the world, we are always already beings situated in a world with others, both in space and time. As such, I contend that since our being is already entrenched in sociality over solitude, solidarity precedes self-interest in terms of what I can be considered responsible for. There is, as the Colombian Court stipulates, already a duty of solidarity in the intrinsic nature of our being. Taking into account the asymmetrical relationship between the present and the future, for future generations discourse to be effective it needs to disrupt the prominence of symmetrical understandings in legal thought between present obligation and future rights-holders. Van der Walt pushes this insight to its fullest and proposes that a ‘deeper sense of responsibility may well arrive one day, accompanied by a sober awareness that much of what is currently called law will simply have to be destroyed’.Footnote 162
6. Concluding Remarks: On the Promise of Future-Based Climate Litigation
My contention throughout this article has been that destroying what is considered law, which Van der Walt contemplates explicitly,Footnote 163 is done not only through theoretical reconsiderations but through legal actions that disrupt the system from within. Future-based climate litigation can be considered a possible avenue to achieve a thorough reconceptualization of our legal orders – in Lindahl’s terms, the redefinition of legal orderings. However, such litigation can do so only if it remains wary of the possible misconceptualization of the future that lurks within its discourse. It is important here to reiterate the need to differentiate between interpretations that aim merely at presenting future generations as holders of present rights, and the more fundamental disruption that imposing future concerns through future-based climate litigation effectuates.
If future-based climate litigation is indeed, as I contend, more than about imposing standing for a currently excluded group of future individuals, we do not need future generations to be represented by a tangible (present) right in order to confront the detriments of climate change to the possibility of a future. Even more so, the asymmetry between present and future in fact requires us to conceptualize future concerns as present obligations. Understood as such, future generations discourse is not about changing the future into something legally feasible within the present by ascribing rights; nor is it about levelling the playing field between present and future generations. Rather, what it does – through discourse and praxis – is to change the present into being more future-orientated.
Acknowledgements
I wish to thank my former colleagues at Tilburg University (The Netherlands) for letting me present an early draft of this paper at their ‘Jurisprudence, Law and Philosophy (JLP)’ seminar, as well as my current colleagues from the Vrije Universiteit Amsterdam (The Netherlands), who provided helpful comments after I presented the article at the ‘Boundaries of Law (BoL)’ seminar. I wish to thank Luigi Corrias and David Rossati specifically for their help when I was finalizing the article. Lastly, I am grateful for the thorough yet constructive feedback provided by the anonymous TEL reviewers.
Funding statement
Not applicable.
Competing interests
The author declares none.
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