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close this bookEnvironmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)
close this folderInternational human rights law and environmental problems
close this folder8. The human rights system as a conceptual framework for environmental law
View the document(introductory text...)
View the documentEnvironmental issues
View the documentEnvironmental rights in the context of the natural order
View the documentDuty to future generations
View the documentThe concept of ''the common concern of mankind''
View the documentThe protection of indigenous peoples
View the documentEnvironmental rights and international refugee law
View the documentSubstantive norm-making and enforcement procedures
View the documentConclusion
View the documentNotes

Duty to future generations

The human right to a healthful environment should be viewed in the context of a duty to future generations.43 The duty to preserve and protect the environment is a duty that is owed not merely to all other human beings, non-human beings, and inanimate objects in present time but extends also to future generations. The duty is expressed in the theory of "intergenerational equity," which articulates that "all members of each generation of human beings, as a species, inherit a natural and cultural patrimony from past generations, both as beneficiaries and as custodians under the duty to pass on this heritage to future generations," and that this right to benefit from and develop this natural and cultural heritage is inseparably coupled with the obligation to use this heritage in such a manner that it can be passed on to future generations in no worse condition than it was received from past generations.44 This theory of intergenerational equity finds support from religious and ethical norms and from numerous international instruments commencing, in modern times, from the Charter of the United Nations, the Universal Declaration of Human Rights and its two International Covenants, to a host of conventions and declarations that are concerned with the dignity, worth, and progress of mankind. When we speak of mankind, we speak of the human race as it exists today and also as it will in the future. And, therefore, an intergenerational dimension must be necessarily inferred in these international instruments extending to all future generations as an obligation erga omnes that derives some support from customary international law45 and is regarded as an emerging norm of customary international law. Another view is that the universal and unequivocal recognition of the duty to protect the interests of future generations, as well as of the principles necessary to implement that duty, should be achieved on the basis of treaty rather than be left to the development of customary law.46

As in the case of non-human beings and inanimate objects, a question arises whether this duty to future generations is correlative to a right inhering in future generations. If rights cannot be attributed to an unborn child, can they be attributed to unborn generations? Unless life on this planet becomes extinct altogether, in which case no occasion for enjoying the benefit of planetary resources or cultural heritage will arise, future generations may be regarded as of certain and definite existence, although lying in the future. We can conceive of a time continuum in which human generations are positioned at successive points of time. They will have definite and certain positions, depending on the number of years when one generation can be said to follow another. A continuous relationship links the generations, and they succeed each other with definite certainty and constant regularity. The existing concept of a right-duty relationship will, in this context, have to be developed further to accommodate the case of rights of future generations. These rights, as Professor E. Brown Weiss47 observes, are not rights possessed by individuals but are generational rights, conceived of in the temporal context of generations. They will be governed by considerations different from those applicable to the case of an unborn child, the incidents in each case being different from the other. Professor Brown Weiss points out that "while rights are always connected to obligations, the reverse is not always true,"48 and she refers to Hans Kelsen49 and John Austin50 in support.