Law's Hidden Subjects

Future generations are often hidden from law's eye, and therefore its protective scope, simply because they do not yet exist. Scholars and advocates have long argued for greater consideration of future generations in political and legal processes, but with little success.Footnote ² On paper at least, key international environmental law declarations, multilateral environmental agreements, domestic laws, the Sustainable Development Goals (SDGs), and even some domestic environmental human rights emphasize the importance of protecting future generations. Often they do so explicitly in human rights terms. One famous example is Principle 1 of the Stockholm Declaration (widely considered the forerunner to current manifestations of the human right to a healthy environment), which states: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” Even though only in a preambular provision, the Paris Climate Agreement notes the importance for states, “when taking action to address climate change, [to] respect, promote and consider their respective obligations on human rights, [including] intergenerational equity.” The Constitution of the Republic of South Africa, 1996 is a domestic example that recognizes: “Everyone has the right to an environment that is not harmful to their health or wellbeing; and to have the environment protected, for the benefit of present and future generations.”Footnote ³

Yet very little of this high rhetoric has managed to effectively translate into concrete institutions, processes, and mechanisms that protect unborn generations. One example of what is possible when rhetoric translates into action is the office of the Future Generations Commissioner for Wales that was created under the Well-being of Future Generations (Wales) Act 2015.Footnote ⁴ Another is the Israeli Commission for Future Generations that operated for only one term between 2001–2006.Footnote ⁵ Elsewhere, most of the action seems to be happening in court rooms and (youth) activist spaces, especially in the climate litigation context, where incremental success is being achieved.Footnote ⁶ Often relying on environmental and other human rights provisions, courts are gradually impacting and shaping power dynamics in politics by empowering the youth (sometimes also representing the unborn) to have a say in the making of climate laws and policies, influence regressive global climate governance, and increase liability for climate damaging activities.Footnote ⁷ A recent example is Neubauer et al. v. Germany, where the German Constitutional Court declared the country's Federal Climate Protection Act partly unconstitutional because it does not sufficiently protect young people against future infringements and limitations of their existing fundamental rights as a result of climate change.Footnote ⁸

Like future generations, nature's rights are also invisible to law's eye and largely remain hidden behind the human-centered Cartesian veil that separates humans and nature. The rational human subject has over many years, notably through its disembodying gendered legal and political processes, constructed nature as an objectified, subservient, weak, feminine “Mother Earth.” “Mankind” continuously seeks to dominate, mold, control, and protect Mother Earth through anthropocentric social institutions to ensure optimal ecosystem “services” and other benefits that must sustain (mostly present human) life on Earth.Footnote ⁹ Anthropocentric law, including its human rights provisions, has been deformed by rational thinking that places Anthropos at the center of all concern, where nature merely acts as a backdrop for the many hierarchies and predatory practices that law creates and perpetuates between living beings.Footnote ¹⁰ Nature is only protected for the short term utilitarian benefit of humans, and not because of a sense of obligation, ethical or otherwise, that is commensurate with an acknowledgement that non-human beings should be legally protected in their own right.

It is only recently that more “radical” alternative framings of rights have been emerging in the form of rights of nature, mostly in Latin American countries, but also elsewhere in the world.Footnote ¹¹ In many instances driven by movements of Indigenous peoples and communities, the nascent rights of nature initiative is seen to have some potential to dissolve modernist dualisms and to promote more expansive ways of seeing, being, caring, and knowing that can redefine sociality and relationality in a decentered, all-inclusive and non-hierarchical “ecological” legal space.Footnote ¹² As is the case with climate litigation and future generations, the judiciary in particular is playing a key role in illuminating the evolving possibilities and limitations of rights of nature provisions, and the myriad tensions that arise when these radical provisions collide with the systemic obstacles and realities of capitalist-driven growth-without-limits development. One example is the 2011 Vilcabamba River case in Ecuador, where the court upheld the country's constitutional rights of nature provisions.Footnote ¹³ In 2017, Colombia's Constitutional Court ruled that the Atrato River possessed rights to “protection, conservation, maintenance, and restoration” and established joint guardianship arrangements shared between Indigenous communities and the government.Footnote ¹⁴ But these victories are few and far between and difficult to implement; they are still only confined to a few (mostly Global South) jurisdictions, and are often too weak to withstand the realities of exploitative economic development.Footnote ¹⁵

The Effect of the Right to a Healthy Environment on Law's Hidden Subjects

Clearly, there have been some significant, but still insufficient, advances in efforts to afford future generations and nature the care and protection they deserve under rights-based regimes. In this section, I explain why I believe the international recognition of the human right to a healthy environment will likely not play a significant role in advancing the legal protection of law's hidden subjects.

One consideration is conceptual-ontological and requires reflection on whether the human rights language in which the resolution is explicitly framed is the most appropriate basis for environmental rights-based approaches. This is not a trivial wordplay exercise. One criticism often leveled against human rights is that they tend to center the human subject as their main concern while “othering” everything else that does not fit within the rationalist liberal construct of “the human” and its central position in law. In liberal law's anthropocentric view, and the view of human rights specifically, nature is a disembodied object at the service of a small, selectively privileged subset of some present-day humans.Footnote ¹⁶ As far as I am aware, there is no empirical evidence that suggests non-anthropocentric laws, such as those expressed in rights of nature provisions, offer better protection in comparison to their anthropocentric counterparts, although they could in theory. But rights of nature do at the very least provide radical alternative and expansive ways of knowing, seeing, being, and caring that could open up human-centered rights to alternative understandings and much broader categories of law's vulnerable subjects. There is no explicit recognition in the resolution of the intrinsic significance of nature, let alone the possibility of affording rights to nature, or even for the resolution to act as catalyst to do so over time. It is rather the case, as the resolution says, that nature stands in the service of humans instead of recognizing that anthropogenic pressures actually impact ecosystems: “the decline in services provided by ecosystems interfere[s] with the enjoyment of a clean, healthy and sustainable environment.”Footnote ¹⁷ The more critical issue that the resolution does not recognize is that these ecosystems are in decline precisely because of increasing human pressures that are promoted by capitalist-oriented pro-growth laws, including human rights.

At a more general level, there are convincing arguments that increasingly expose environmental law's cornerstone principle of sustainable development for the predatory, neoliberal growth-oriented world order that it actively and consciously creates and maintains.Footnote ¹⁸ The resolution is explicitly embedded in this growth-without-limits sustainable development paradigm, and more specifically, what it describes as the “far-reaching and people-centred set of universal and transformative Sustainable Development Goals and targets.”Footnote ¹⁹ Neoliberal sustainable development operates as the pivotal core of the SDG framework, and as a result, the SDGs have had negligible positive steering effects on efforts that aim to achieve planetary integrity, protection of the non-human world, and future generations.Footnote ²⁰ The fact that the resolution endorses and orientates itself alongside the SDGs suggests that it will likely not be able to counter the dominant pro-growth, people-centered framing of a world order that favors short term economic development at the cost of long-term ecological sustainability. This is arguably a lost opportunity for environmental human rights to prompt the sort of radical social transformations that must recognize both the limits of the planet and the fact that humans are not the only living beings that matter.

On the one hand, one might argue that recognizing nature's rights was probably not the intention of states parties, or their primary concern in this instance. Rather, other interstate processes such as the United Nations’ much “softer” Harmony with Nature program, which through the adoption of thirteen General Assembly resolutions to date aims to propose alternative understandings of nature-human relationships, are more suitably geared toward pursuing such an effort (although even this program is unlikely to move states to formally recognize nature's rights in the foreseeable future).Footnote ²¹ But on the other hand, the resolution presented an ideal––but now lost––opportunity for states to recognize the rights of nature. Nothing, in principle, prevented states from doing so, especially in the light of well-established precedent already embedded in the many domestic legal systems that provide for such rights, and in the light of parallel UN processes supporting the rights of nature movement. Was recognizing rights of nature just asking a tad too much from states?

In the end, the menace of realpolitik probably prevailed and it is likely that officially recognizing the rights of nature was seen to be too radical and controversial, and therefore unacceptable for the unambitious, path-dependent, development-oriented, human-centered global (environmental) governance regime.Footnote ²² Global governance processes and politics being what they are, and chasing the lowest common denominator as they do, delicately curating this opportunity to recognize the human right to a healthy environment was a tedious and protracted task that required a mammoth multi-actor effort. Requiring states to also recognize the rights of nature in that same resolution was probably going too far, although it should not have been the case.

I am therefore not optimistic that the international recognition of the human right to a healthy environment will have any significant destabilizing effect on business-as-usual global environmental governance by shifting its orientation from one rooted in human-centered development to that which is more ecologically caring. More specifically, the resolution is a missed chance for bolstering the rights of nature movement and I suspect that, as with the transnational environmental human rights regime that has been built over several decades from the bottom up, the future growth of rights of nature will largely depend on domestic, and perhaps to a more limited extent also regional, innovations.

The resolution is clearer about recognizing the rights and interests of future human generations, although it does not offer anything new in terms of formulation or concrete measures and institutions that are more fully geared toward protecting future generations. The resolution merely reaffirms, as do so many other international texts, that “sustainable development . . . and the protection of the environment, including ecosystems, contribute to and promote human well-being and the full enjoyment of all human rights, for present and future generations”; and that “environmental degradation, climate change, biodiversity loss, desertification and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to effectively enjoy all human rights.” The extent to which the gravity of the problem is recognized by the resolution is not commensurate with the extent of the measures that are being proposed to address the problem. Moreover, while states acknowledge the need that “additional measures should be taken for those who are particularly vulnerable to environmental degradation,” the resolution is unclear whether this category also includes future generations. On the basis of a contextual-textual analysis of the resolution, one can therefore only conclude that the international recognition of the human right to a healthy environment is as insignificant for the protection of future generations as it is for bolstering the rights of nature.