All human beings are born free and equal in dignity and rights (Universal Declaration of Human Rights, Art. 1). While age-old questions probe into the source and substance of the International Human Rights Law (IHRL) project, queries have since shifted from one of material scope to temporal ambit. With the rapid development of environmental law, the focus is not now limited to the meaning of “dignity” or the limits of “rights” but puts into question the potential conditio sine qua non: birth.
At the heart of the debate lies the doctrine of intergenerational responsibility—a present-day duty for the benefit of forthcoming generations. The doctrine was famously pronounced by the Philippine Supreme Court in the case of Oposa v. Factoran
Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generation to come. (Emphasis supplied)
Oposa recognises that both the living individual and the inchoate man possess the right to a healthful ecology (i.e. the right to the environment). This post tests the veracity of that claim.
While it is conceded that the present state of IHRL discourse would necessarily flow towards a concern for future generations, the doctrine of intergenerational responsibility reaches beyond reason by purporting to protect human rights of future generations. Though fueled by noble convictions, it is submitted that the (mis)use of the doctrine of intergenerational responsibility qua human rights law is not only found wanting of philosophical footing but betrays the very cause it seeks to champion.
A. Intergenerational Responsibility: Right-Conferring or Duty-Imposing?
Oposa recognises that “every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology.” Notice: While oft-cited in the language of rights, intergenerational responsibility speaks of duties. Oposa is thus duty-imposing rather than rights-conferring. While the two may indeed be entwined, one does not ipso jure spring from the other. Ultimately, the right and the duty are separate and distinct elements (Weston B, ‘The Theoretical Foundations of Intergenerational Ecological Justice: An Overview’ Human Rights Quarterly 252 (2012)). Indeed, a legal claim would require both a right-holder and duty-bearer (Harris S, ‘What Is a Cause of Action’ 16 Cal L Rev 459 (1928)).
Legal rights and duties do not always go hand-in-hand. While the author agrees with the ethical and pragmatic rationales recognising moral rights to protection from environmental threats and harms, the doctrine of intergenerational responsibility appears to derive the right of future generations from the duty of present-day peoples—a non sequitur.
B. Semantic Inflation: Diluting the Normative Value of Human Rights
1. Setting the Stage for Bentham’s Objection
In response to the 1789 French Declaration of the Rights of Man and of the Citizen, Jeremy Bentham—the father of utilitarianism—famously criticised the notion of “natural” rights as “non-sense upon stilts.” Absent a duty to respect rights or a threat of consequence for their violation, human rights are not binding law but mere wishful declaration.
The utilitarian approach to human rights is met by a naturalist rebuttal. Human rights are neither a creation nor mere consideration of man but a right that stems from humanity. That a priori recognition, however, is challenged by the doctrine of intergenerational responsibility, which places a claim for human rights without a human rights bearer.
While there is no question that human rights, and perhaps the rule of law as a whole, seeks to effect intergenerational change, this purpose fails to serve as the foundation for human rights of future generations. On the contrary, it in fact shakes the very foundation of human rights which celebrates its innate existence. Indeed, to now argue for the rights of the human-in-the-abstract appears to depart from the self-establishing deontological approach to human rights, and thus sets the stage for the Benthamist objection: To mean something, the law must afford protection.
Perhaps unbeknownst to the intergenerational justice advocate, to champion the rights of future generations may very well weaken the human rights movement today. It runs the risk of undoing the recognition of fundamental rights and revert to a teleological approach by deriving its value from the outcome pursued rather than the source from which it springs.
I ask: Is it truly necessary that we reinvent the wheel?
2. Human Rights Hypertrophy
By taking an anthropocentric view to environmental law, environmentalist principles are mainstreamed into the human rights discourse. The language of human rights law is pursued for the obvious reason: it tilts the balance of advantage. But for a field often criticised for offering mere paper protection, to argue for the existing rights of the inchoate man does not do human rights theory any favours. After all:
environmental rights remain ambiguous as human rights for several reasons… [T]hey are particularly abstract rights because they extend to persons not yet born; that is, they include an element of time not usually associated with the practice of rights (Hiskes R, ‘The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational Justice’, 27(4) Human Rights Quarterly (2005), 1351).
Instead of realising the universal norm, intergenerational responsibility runs the risk of delving further into abstraction. Human rights would thus once again lie victim to the phenomenon of semantic inflation—when colloquial interests are given the label and corresponding stigma of international concerns. Blurring the distinction and losing its content.
Indeed, Eric A. Posner’s Martii Koskenniemi on Human Rights: An Empirical Perspective Working Papers is once again called to the fore. The range of human activities has indeed “expanded greatly, so that today, nearly everything one might think of is formally governed by human rights law.” Apparently, not only in materiae, but in temporae.
C. Human Rights: Forward Looking
All claims of rights, to some extent, are future-oriented (Hiskes, 1355). In recognising the universality of human rights ratione materiae, it is necessarily implied that the human right’s ratione temporae is equally timeless. Indeed, the Universal Declaration of Human Rights may have been adopted more than seventy years ago, but this is not to say that the children then “yet unborn” did not benefit from its declaration.
Assuming the status quo, to recognise human rights today is to acknowledge them tomorrow; not just for one individual, but for all of humanity. There is an inherent futurism in “universal” human rights norms which renders moot the need to designate any right as that of any particular generation, past, present, or future. From this view, to label a right as “intergenerational justice” appears to be more legal nicety than substantive consideration. There is already an innate futurism, timelessness, and agelessness in the universal human rights norm.
Rather than reinvent the wheel, we should therefore instead “review the claims to rights of those currently alive, together with their various moral responsibilities, which may, of course include responsibilities in respect of future generations” (Merrills J, ‘Environmental Protection and Human Rights: Conceptual Aspects’ in A. Boyle and M. Anderson’ (eds.), Human Rights Approaches to Environmental Protection (Oxford University Press 1998), pp. 25-41). By protecting the present generation’s right to a healthful “tomorrow,” rather than tomorrow’s generation’s right to environmental rights today, neither the goal posts of intergenerational responsibility nor the grounds in which human rights are founded will be abandoned or shifted.
Intergenerational responsibility is incompatible with the philosophical foundations of human rights. Therein lies the doctrine’s weakness, but perhaps therein too lies its strength.
Traditional human rights law refers to innate freedoms—life, liberty, the pursuit of happiness. The environment, however, is different. The right to a “healthful ecology” is not so much founded in our humanity, but stems from facticity—the world into which humankind is thrown.
The environment is not inherent but inherited. Unlike “first” and “second” generation rights, the environment does not interminably flow from our moral status but is limited and non-fungible. What is left of it will be passed on in the same way that it was given from past generations. Perhaps, therefore, strengthening the cause for environmental rights does not require the exclamation point of human rights, but a caveat: That, despite shaky philosophical foundation, the intergenerational right to a healthful ecology is a sui generis human right precisely because it is different from the human rights we have traditionally come to know.
In nature, yes. But most especially in consequence.