Legal Actions for Future Generations

by Emilie Gaillard (Volume editor) David M. Forman (Volume editor)
©2020 Edited Collection II, 496 Pages


At present, legal definitions of justice take account of a wide spectrum of concepts operating as juridical tools to protect future generations. Environmental justice, climate justice and protection of the Commons figure alongside new ways of conceiving justice itself, which must evolve in order to fit our changing world. It cannot be denied that we live in an era of wide-ranging transformation both in Law and Human Rights. In 1993, the now famous Oposa vs Factoran case in the Philippine Supreme Court created a precedent for future generations law and paved the way for legal action on behalf of future generations. This legal action also set a global precedent, in the sense that it heralds a new era in legal action throughout the world.
Is it possible to take legal action on behalf of future generations? If so, on what legal bases could this occur? What scientific or legal fields have already been successfully used in this regard? Are there any other bases upon which such legal action could be taken? Mass disputes and litigation on behalf of Humankind in defense of the planet’s future are invoking future generations in constantly increasing numbers.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the editors
  • About the book
  • This eBook can be cited
  • Foreword
  • Acknowledgments
  • Notes from the Editors
  • Contents
  • List of Acronyms
  • 1. Adapting Juridical Order in the Age of the Anthropocene (Mireille DELMAS-MARTY)
  • 2. Intergenerational Equity as a Change of Paradigm (Edith BROWN WEISS)
  • 3. Evolutionary Roots Nurturing Equity Across Generations (Nicholas A. ROBINSON)
  • 4. Nuclear Weapons and Law for the Future: The Application of Principles Protecting Future Generations in International Tribunals (Alyn WARE)
  • 5. Treaty on the Prohibition of Nuclear Weapons: A Move Towards New Legal Action to Protect Future Generations? (Jean–Marie COLLIN)
  • 6. The Bomb as a New Definition of Present and Future Humanity: What We Owe to Günther Anders’ Thoughts (Frédérick LEMARCHAND)
  • 7. Effects of Ionizing Radiation – Evidence of Genetic Effects: Greater Risks for Transgenerational Damage (Martin WALTER & Andreas NIDECKER)
  • 8. Global Warming and the National Courts: A Global Legal Revolution? (Christian HUGLO)
  • 9. Securing the Legal Right to a Healthy Atmosphere and Stable Climate for the Benefit of All Present and Future Generations (Elizabeth BROWN, John DAVIDSON & Danny NOONAN)
  • 10. Climate Justice for Future Generations: From International to French Perspectives (Agnès MICHELOT)
  • 11. Each Object Has its Own Subject! The Legal Revolutions of the Human-Nature Relationship (Marie-Angèle HERMITTE)
  • 12. The Rights of Nature: A Legal Revolution for Ecological Justice (Matthias PETEL)
  • 13. The Recognition of Rights for Future Generations in Argentinian Lawsuits: Review and Prospects (Juan Ignacio PEREYRA)
  • 14. Marooned in the Doldrums While Ignoring Indigenous Ecological Knowledge: Attempting to Regulate Pesticide Use in Hawai‘i (David M. FORMAN)
  • 15. Draft International Covenant on the Human Right to the Environment (Michel PRIEUR)
  • 16. For the Recognition of the Rights & Duties of Humankind (Corinne LEPAGE & Emilie GAILLARD)
  • 17. Law and the Idea of Human Perfectibility (Christian BYK)
  • 18. The Posthumous Post-Human, or Abolishing the Future of Generations: By What Right? (Louise VANDELAC)
  • 19. Transhumanism(s) & Law(s): First Tracks and Thoughts (Amandine CAYOL & Emilie GAILLARD)
  • 20. Legal Bases for Protecting Future Generations (Emilie GAILLARD)
  • 21. Making a Difference for Future Generations (David M. FORMAN & Antonio A. OPOSA, Jr.)
  • List of Figures
  • List of Tables
  • Select Bibliography
  • Select Case Law
  • Notes on Editors
  • Notes on Contributors
  • Board of Advisers – Normandy Chair For Peace Collection

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In the first Part of this book, we explore the concept of Future Generations in a general legal context. Our entry into the Anthropocene Era calls for an urgent Copernican Revolution, a new legal matrix that is not only thought of (and used) for humans today, but also for future generations, including all living species and Nature itself.

Professor Mireille Delmas-Marty sets the stage by criticizing static depictions of the juridical order and proposing, instead, a globalized approach that relies upon mobilized stakeholders to ensure a dynamic equilibrium that recognizes our interdependent responsibilities. Rejecting uniformity in favor of an “ordering pluralism” that is sustained by its differences, Professor Delmas-Marty contends that planetary solidarity can be achieved by relying on two international law mechanisms: the universal principle of equal dignity, and cultural diversity as a Common Heritage of Mankind. By regulating the dialectic winds advocated by globalized economic, scientific and civil stakeholders, we can avoid the doldrums that could otherwise be experienced across a spectrum from totalitarianism to cut-throat competition (essay #1 on “Adapting Juridical Order in the Age of the Anthropocene”).

Professor Edith Brown Weiss is one of the leading authors in international law on the topic of Justice for Future Generations. She puts into perspective the strengths associated with a changing legal paradigm that integrates Intergenerational Justice (procedurally and substantively) as a normative framework involving both rights as well as obligations. Deeply rooted in diverse cultural and religious traditions, intergenerational equity has already been applied by judicial bodies in a growing number of countries and is receiving increasing recognition in international law. The intergenerational equity framework provides that all generations share in a planetary trust and are partners in caring for as well as using the Earth (essay #2 on “Intergenerational Equity as a Change of Paradigm”).

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Professor Nicholas Robinson is an internationally-recognized architect of international environmental law, and one of the world’s most distinguished public intellectuals. He poses an important question: whether jurisprudence and the legal profession can craft rules and procedures to ensure a more holistic, intergenerational application of equitable principles? Recognizing that human society is out of balance with the Earth, Professor Robinson draws upon norms evolved by indigenous peoples that can be applied to help rebalance our “intergenerational” accounts. We must become good ancestors who act as stewards of our cultural and natural heritage, and who are committed to justice and fairness across generations. In this sense, the evolution of environmental norms provides a framework for applying equity in a manner that promotes the resilience necessary to sustain life (essay #3 on “Evolutionary Roots Nurturing Equity Across Generations”).

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1. Adapting Juridical Order in the Age of the Anthropocene

Taking Legal Action on Behalf of Future Generations: it was an ambitious objective for just two days! However, Emilie Gaillard is not easily daunted, so we have agreed to begin with an even more ambitious challenge: “Adapting Juridical Order in the Age of the Anthropocene”.

Many scientists believe that the Anthropocene is a new stage in the history of Mankind; one in which the human species could become its own telluric force, capable of interacting with other geophysical forces and bringing about sustainable consequences for the ecosystem. This type of interaction has been brought to light in a variety of domains, including geology, earth science, geography and climatology. However, professionals in the domain of human and social sciences are taking longer to catch on, perhaps because the temporalities are usually much shorter.

Yet the need to anticipate has begun to affect law and philosophy, reflected in the concept of “future generations”, as well as terms such as “sustainable development” and “sustainable peace”. Currently, this need to anticipate is largely, if not exclusively, focused on nuclear or climate change issues, which will be addressed herein.

In order to fight against climate disruption, the temporal anticipation process cannot be disassociated from a spatial extension process – a phenomenon we refer to as globalization. This globalization dramatically changes the juridical order traditionally identified with States. It is true that globalization in itself is not something new. Going back to the end of the eighteenth century, the philosopher Immanuel Kant based what he referred to as “the principle of universal hospitality” on the spherical form of the Earth. He was well ahead of his times. We know that this principle has not yet been applied per se, but the recent constitutionalizing of “fraternity” could mean that hospitality becomes part of our legal world, thus limiting the definition of the so-called “délit de solidarité”, i.e., crime of hospitality.1

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The surprising thing is that, according to Kant, this principle of “universal hospitality” – from the first article of his Cosmo political law – was imposed because, as the Earth is round, “infinite dispersion is impossible”. He announced that henceforth, ties between nations would be “increasingly close” to the point that, “a violation of rights in one place will be felt everywhere”. The truth of this statement became evident as the two processes that characterize globalization developed: the extension of relations between nations, or globalization stricto sensu (globalization of flows, risks and even crimes); and, the universalization of values (the establishment of “human” rights and crimes against “humanity”).

So, what is different about today’s world?

First, demography: during the time of Kant, there were roughly 1 billion humans on the Earth. Now there are nearly 8 billion of us, and this is growing at a staggering rate: between 1950 (3 billion) and 2010 (7 billion), the population increased by 1 billion every 15 years. This will soon increase every 10 years. Second, interdependencies: another increase between what can be referred to as “les collectifs humains” or “the different collectives”.2 This has been noted between different human collectives (tribes, States, groups of States, transnational companies, NGOs, etc.), but also between human and non-human collectives (non-humans including animals and nature, and perhaps “smart objects” created by Artificial Intelligence).

All this reorganization of human societies includes the sphere of justice and the juridical field. It is definitely not by chance that during this period of transition, drafts have abounded, not unlike those of the 1780-89 period: the age of the French Declaration of the Rights of the Man and of the Citizen. Presently, new declarations are being drafted. These include the Declaration of the Rights of Mother Earth, the Universal Declaration of the Rights and Duties of Humankind (Déclaration Universelle des Droits de l’Humanité, or DDHu) or even the Third International Covenant on the Human Right to the Environment, formulated by jurists such as Professor Michel Prieur and Yann Aguila (following two other international covenants signed in 1966: the International Covenant on Civil and Political Rights, along with the International Covenant on Economic, Social and Cultural Rights).

These different texts share many common points, but one in particular stands out: times have changed since the eighteenth-century declarations, and even since the 1966 Covenants – we have gone from gaining independences to recognizing interdependencies. The word “interdependencies” is central as it obliges ←30 | 31→us to acknowledge what I would call the duty of solidarity. We can already note the increase in power of new legal categories that modify relationships in space and time.

For space, these categories include: the “Common Heritage of Mankind”, “Global Public Goods” (this term was borrowed from economists and could lead to the recognition of common goods) or “ecological prejudice”. As for time, the new categories introduce precisely this concept of anticipation that was not customary in the legal domain. I mentioned earlier the terms “future generations”, “sustainable development” and “sustainable peace”. To these we can add “transgenerational damages”, and also the principle of “non-regression” that was recently introduced to international law. Although this last is perhaps less ambitious than the others, it is more realistic.

Unfortunately, the way juridical order has been depicted does not facilitate such a metamorphosis. The legal vocabulary is still static: foundations, grounds, fundamental rights, etc. Furthermore, the metaphors – which have an even greater influence – are immobile: pyramids, bases, pillars, etc. Even when referring to “sources”, we add the adjective, “fundamental”, which renders them immovable. All this vocabulary spurs – even obliges – us to identify law with a given State, and juridical order to a fixed construction.

To depict these new assemblages, we would need a more radical epistemological break-up, one that moves from concepts to process, from static to dynamic, and from models to movement. To this end, I proposed the metaphor of winds3 – which I would like to take as a starting point for this presentation, divided into three parts. First, an observation: globalization is caught up in a storm of opposing winds. Then, I will study the narrative of “mondialité” by writers from the Caribbean zone – such as Edouard Glissant or Patrick Chamoiseau – who thought extensively about humanizing globalization, proposing to refer to this people-centered globalization as “mondialité”. Finally, we shall consider the new responsibilities as belonging to the world, which we are starting to refer to as “world citizenship”.

I. Globalization in a Storm of Opposing Winds

To sustain what he referred to as the new scientific spirit, Bachelard appealed to the “imaginative forces of the spirit” and opposed false scientific objectivity with ←31 | 32→a non-Cartesian epistemology. In the age of the Anthropocene, the renewal of political thought needs a new legal spirit that awakens the “imaginative forces of law” and opposes the widespread fallacy of a law that represents States with a “non-Kelsenian” epistemology. But how do we escape the “rigidity of blindly accepted convictions”? The philosopher wrote, “If we are unable immediately to attain to an ordered multiplicity, we can always resort to dialectics as to a clang that will awaken our dormant resonances”.4

And Mr. Trump has helped us to discover the consequences of denying reality in a world becoming more and more interdependent. This reveals the emergency of introducing dialectics into the legal field. Two figures illustrate this theory: the wind rose to identify opposing winds (Fig. 1); and dancing with the winds (below, Fig. 2), to attempt to regulate them.

This is precisely the main objective of my imaginary wind rose: identifying contradictions. First, there are the dominant winds: freedom versus security; competition versus co-operation.

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Then there are the intermediate winds, or the winds between winds: innovation versus conservation; exclusion versus integration.

The wind rose helps us to understand the issues – to know where we stand; but it does not indicate the direction to be taken. It doesn’t show the direction for future global governance. It is true that for a long time each “human collective” has chosen its own direction, based on its own logic (or its ideologic). However, they remained within their own territories.

In the age of the Anthropocene, globalization is accompanied by deterritorialization, whether it be immaterial flows (financial flows or flows of information), global risks (climate or health risks), or global crimes (trafficking, corruption, terrorism or even ecocide). The borders that separated territories are becoming porous, and global governance, caught up in the storm of opposing winds, is ←33 | 34→drawing closer to the “doldrums”: the place in the middle of the oceans where the meeting of north and south is so violent that their encounter produces, at best, calms (i.e., neutralizes one another and paralyzes vessels, that remain “becalmed”) and, at worst, causes storms and shipwrecks.

It is true that every social (including legal) organization presupposes a minimum level of stability, at least temporarily. Even so, it must not prevent all movement during this period of major acceleration, when societies are continuously having to adapt themselves. To stabilize our societies without immobilizing them, we need to choose a direction.

Yet it appears impossible to favor one of the winds over the others without destroying the equilibrium. Security without freedom leads to totalitarianism, but freedom without security brings chaos; competition without co-operation leads to rule by force (military or economic), but cooperation without competition brings about collectivism; innovation without conservation could mean the collapse of the planet, but conservation without innovation leads to paralysis; exclusion without integration means imprisonment or war, but integration without exclusion could result in a deadly fusion.

In other words, the triumph of one single wind, whichever one it may be, will lead global governance into the doldrums: either the paralysis of a totalitarian system or a shipwreck in the great disorder of a world where cut-throat competition reigns; or a strange combination of them both.

On the other hand, the energy produced by these tensions could contribute – and here lies the gamble – to revitalizing action. Through a circular movement that resembles a sort of “wind cycle”, this energy could generate legal principles that enable the regulation of opposing winds rather than the elimination of contradictions, thus producing a dynamic equilibrium.

This dynamic equilibrium is rather like the alternation of a world that breathes. Globalization would quickly be suffocated if alternation comes to a halt – for example, if security were to overrule rights or if competition were to extinguish the spirit of co-operation. To avoid this suffocation, each couple of opposing winds must be ordered around regulatory principles that allow “or” (that which opposes) to be replaced by “and” (that which composes).


II, 496
ISBN (Hardcover)
ISBN (Softcover)
Publication date
2020 (November)
Responsibility towards future generations Nuclear disasters Pesticides pollution Humankind rights Climate Justice Philosophy of disasters Transhumanism Transgenerational Democracy
Bruxelles, Berlin, Bern, New York, Oxford, Warszawa, Wien, 2020. II, 496 pp., 11 fig. col., 4 fig. b/w, 3 tables.

Biographical notes

Emilie Gaillard (Volume editor) David M. Forman (Volume editor)

Emilie GAILLARD, is Lecturer at Sciences Po Rennes. She teaches Private Law, Bioethics, International Environmental and Human Rights Law. Author of Générations futures et droit privé. Vers un droit des générations futures, LGDJ, 2011 (Awarded by the French Academy of Political and Moral Sciences, Charles Dupin Prize). She is the general coordinator of the Normandy Chair for Peace led by Tony Oposa (Normandy Region, CNRS, University of Caen Normandy – MRSH Caen). David FORMAN is Director of the Environmental Law Program at the William S. Richardson School of Law, University of Hawai‘i at Mānoa, and a Faculty Specialist with the Ka Huli Ao Center for Excellence in Native Hawaiian Law. The State of Hawai‘i Judicial Selection Commission has nominated him four times for vacancies on the Hawai'i Supreme Court and Intermediate Court of Appeals. He is the Deputy Ombudsman for Future Generations (Oceania Region).


Title: Legal Actions for Future Generations
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498 pages