Children and Future Generations Rights before the Courts: The Vexed Question of Definitions

Abstract

Recent years have seen a sharp increase in the number of cases being brought before national courts addressing the constitutional rights of children and future generations (FG) in the context of environmental protection. These cases have required courts to devote increasing attention to a wide-ranging and complicated array of constitutional rights claims involving the short- and longer-term impacts of environmental harm on children and FG. This article argues that both litigation and judicial efforts in this area have been hampered by the lack of precision of definitions of ‘future generations’ under comparative constitutional and international human rights law, in particular vis-à-vis children. This lack of precision poses a major challenge to both the delineation and enforcement of rights claims in the context of such litigation. After outlining how these cases are being brought and how courts are addressing (or not) the complexities involved in defining children and FG respectively, the article highlights the lack of authoritative definitions of FG in comparative constitutional law – a lacuna that, the author argues, is exacerbated by the ongoing lack of a clear definition of FG in the international human rights law context. The article concludes by identifying key challenges faced by litigators and courts seeking to engage with the rights of children and FG that result from this definitional gap.

1. Introduction

Recent years have seen a sharp increase in the number of cases being brought before national courts addressing the constitutional rights of children and future generations (FG) in the context of environmental protection. An ever-more frequent element of climate justice litigation, examples range from Colombia,¹ Germany,² Canada,³ Pakistan,⁴ the United States (US),⁵ Norway,⁶ Sweden,⁷ Korea,⁸ and Brazil.⁹

These cases have required courts to devote increasing attention to a wide-ranging and complicated array of constitutional rights claims involving the short- and longer-term impacts of environmental harm on children and FG. This article argues that both litigation and judicial efforts in this area have been hampered by the lack of precision of definitions of ‘future generations’ under comparative constitutional and international human rights law, in particular vis-à-vis children. This lack of precision poses a major challenge to both the delineation and enforcement of rights claims in the context of such litigation.

After outlining how these cases are being brought and how courts are addressing (or not) the challenges in terms of defining children and FG respectively, this article highlights the lack of authoritative definitions of FG in comparative constitutional law – a lacuna that, I argue, is exacerbated by the ongoing lack of a clear definition of FG in the international human rights context. The article concludes by identifying some key complexities faced by litigators and courts seeking to engage with the rights of children and FG. Some would exist even if the definition of FG was clearer (for instance, the challenge posed by the relative indeterminacy of FG rights harms far in the future vis-à-vis those faced by currently living children). However, others are created and/or severely exacerbated by the current confusion, with perhaps the most serious of these being the constrained ability of courts (and litigators) to specify clearly, and address, the potential inconsistency, divergence, and conflict between the constitutional rights and interests of children and FG that may arise in climate justice cases.

2. The ‘Child Rights’ and ‘Future Generations’ Turn in Climate Justice Litigation

We are witnessing a dramatic increase in the number of constitutional cases focused on the rights of children and FG.¹⁰ This is in large part attributable to growing awareness of the intergenerational impacts of climate change and their implications for those at the ‘hard end’ of the temporal spectrum.¹¹ In response, litigators and other advocates have designed legal efforts that seek to preserve the natural foundations of life for children and FG, as well as to ensure the fair distribution of environmental burdens between different generations, whether not yet living, living children, or otherwise.¹²

There are several additional reasons why the rights of children and FG are increasingly litigated together in constitutional cases. Firstly, it is strongly arguable that under a number of constitutional frameworks children qualify as FG rights holders for the purpose of constitutional protection.¹³ One example of this is Do-Hyun Kim et al. v. South Korea, a case before the South Korean Constitutional Court arguing that the greenhouse gas (GHG) target envisaged in South Korea's Framework Act on Carbon Neutrality and Green Growth for Coping with the Climate Crisis is insufficient to keep global warming below 2 degrees Celsius (°C).¹⁴ The complainants asserted that ‘[t]he Petitioners who are the future generation, as citizens of the Republic of Korea equally have the right to life, right to health, environmental right, and pursuit of happiness under the Constitution as much as the current generation does’.¹⁵

In this instance, the litigators argued that the ‘future generation’ for the purposes of the action is not an abstract group of individuals, but living and existing persons fully entitled to the claimed rights (aka the child complainants).¹⁶

In another example, the Brazilian case of Six Youths v. Minister of Environment and Others, the complaint suggested that its youth (including child) authors acted in relation to FG in several different ways. As ‘members of organizations formed and led by young people’ and ‘the successors of the current generation’, the complainants presented themselves as guaranteeing ‘the future of their lives, but also those of their children, grandchildren and great-grandchildren’.¹⁷ Here, children asserted FG rights on behalf of both themselves as FG, and with regard to not yet living FG.

In other situations, the constitutional rights of children can be leveraged directly to address intergenerational justice on their own terms, encompassing issues of FG rights. For instance, Article 1 of the Austrian Federal Constitutional Act on the Rights of Children provides that ‘each child shall be entitled to the protection and care that is necessary for his/her well-being, to optimal development and self-realisation as well as to the protection of his/her interests with regards to intergenerational equity’.¹⁸ In spring 2023, 12 children launched a case challenging the ineffectiveness of Austrian GHG reduction measures. The case focused on the rights of children, who were equated to ‘younger generations’.¹⁹ It was based, inter alia, on ‘the best interests of the child in the sense of individual rights to protection and care, to the best possible development and to the safeguarding of their interests, in particular from the point of view of intergenerational justice’.²⁰ In doing so, the complaint argued that future impairments of the best interests of the child are to be included in the assessment of the current violation of fundamental rights.²¹

It is true that this complaint did not assert the rights of the child as ‘future generations’, focusing instead on the rights of ‘children living today in the future’,²² and this was how the complaint was construed by the Constitutional Court as well.²³ Yet, the arguments made with regard to the principle of the generation-appropriate use of resources,²⁴ which drew on both the Federal Constitutional Act and the Federal Sustainability Act,²⁵ clearly have potential implications for FG rights in the climate litigation context.

More generally, there are significant common or mutual (in the sense of shared) interests of children and FG in the environmental protection context. This means that children may be regarded as appropriate representatives or ‘proxies’ of FG for the purposes of standing to bring complaints focused on those shared interests. There is clear evidence that some courts at least are prepared to allow children to serve as representatives of FG on this basis.

An appreciation of these mutual interests is evident in the 2018 decision of the Colombian Supreme Court of Justice in the Future Generations v. Ministry of the Environment & Others decision. Here, the Court found that the deforestation of the Amazon – caused by a range of impugned actions – provoked ‘in the short, medium and long term, imminent and serious harm to the children, adolescents and adults who are bringing this action, and in general, to all the inhabitants of the national territory, for both present and future generations’.²⁶

Alternatively, even where children are not deemed to constitute FG, litigation involving children can serve as a springboard for judicial consideration of FG interests. In the German Neubauer case, the Federal Constitutional Court declared that the legislator had violated fundamental rights by failing to take sufficient precautionary measures in terms of the 2019 Federal Climate Protection Act²⁷ to manage the obligations to reduce emissions in ways that respect fundamental rights. The Court found that Article 20a of the German Constitution ‘is aimed first and foremost at preserving the natural foundations of life for future generations’²⁸ and imposes a special duty of care on the legislator including a responsibility for FG.²⁹ Despite its identification of these constitutional obligations in relation to FG, the Court was clear that the child complainants in this case had standing to lodge constitutional complaints because they might be faced with substantial burdens to reduce GHG emissions from the year 2031 onwards, with this ‘advance effect on [their] future freedom’ potentially violating enjoyment of their fundamental rights later in their lifetimes.³⁰ In the words of the Court, the complainants were invoking their own fundamental rights, ‘not asserting the rights of unborn persons or even of entire future generations, neither of whom enjoy subjective fundamental rights’.³¹ As such, the children were not FG, albeit that the litigation in which they were involved resulted in the identification of the constitutional obligation to afford intergenerational protection.³²

There are strategic reasons – beyond those related to legal argumentation – for why children are increasingly the focus of climate litigation that incorporates intergenerational rights concerns. Firstly, child claimants in the here and now serve to provide a ‘face’ for the claims of what is otherwise potentially an abstract group who (and whose interests) courts may struggle to conceptualize. Secondly, there is growing enthusiasm on the part of environmental protection-focused litigation more generally for involving child plaintiffs.³³ While this trend is undoubtedly motivated by a genuine concern for securing rights protection for children and others, litigators are certainly not unaware of the association between child litigants and increased media (and hence public or political actor) interest in a case.³⁴ Another advantage of children serving as representatives of FG in the context of environmental litigation, flagged by Donger, is that having child claimants can mitigate the potential unintended implications for reproductive rights that might result from enhanced protection for as yet unborn/not yet living FG as a free-standing group.³⁵

In addition, there is clear concern on the part of children to secure environmental protection not just for themselves in their lifetime but for FG. To quote Sophia Mathur, one of the claimants in the Canadian Mathur litigation – which argues that Ontario's failure to set a more stringent target for the reduction of GHG emissions and a more exacting plan for combating climate change over the coming decade violates the constitutional rights of youth (including children) and FG – upon the launch of the case:

The climate crisis is going to impact everyone, both now and into the future. It is important for me to be part of this case because we need to stand up for the generations to come and make sure they have a safe and liveable planet.³⁶

Where litigators collaborate with children and youth climate justice advocacy groups in terms of agenda setting around litigation, this should entail recognition of the agendas and concerns of children and young people,³⁷ including their desire to advance the interests of FG in the environmental protection context.³⁸ In turn, Wewerinke-Singh and co-authors have flagged that where litigation focused on FG results in court decisions that recognize solidarity between children and FG, this can serve to bring children – ‘informed, diverse and hitherto silenced or unheard stakeholders’ – into the conversation around climate justice.³⁹

In sum, the reasons for the increased litigation and adjudication of the constitutional rights of children and FG are many and multifaceted. However, as we will see in the next section, the issue of defining FG and the overlap (or not) between FG and children remains a key conceptual challenge for courts and litigators working in this space.

3. Children and Future Generations: The Challenge of Definition

The existing constitutional jurisprudence demonstrates that in addressing the impact of harm to the environment on living children and not yet living or living FG, litigation and adjudication have focused on a wide range of rights impacts. Courts have looked (both in isolation and in tandem) at (i) the short-term impacts of environmental harm on the rights of living children in the here and now; (ii) the longer-term impact of environmental harm on the rights of living children as future adults (sometimes designated as ‘already born’, ‘living’ or ‘existing’ FG); and/or (iii) the impacts of environmental harm on the rights of not yet living FG.

This is unsurprising given the diversity of ways in which these claims have been brought.⁴⁰ A further factor that contributes to this multiplicity of approaches, however, is the issue of definition – specifically, the frequent failure of constitutions or courts to define precisely what a future generation is for the purpose of constitutional protection. This situation contrasts sharply with the position with regard to ‘children’ in constitutional law terms, where it is generally clear who is accorded protection either by virtue of the text of the constitution itself⁴¹ or through its interpretation using other relevant domestic or international standards that provide guidance on this point.

It is thus not always obvious to whom the constitutional rights of ‘future generations’ adhere or who is entitled to assert those rights, whether on their own behalf or on behalf of others. Relatedly, the extent to which living children in the here and now overlap with FG for the purposes of constitutional rights protection is frequently (albeit certainly not inevitably) unclear;⁴² that is, whether they qualify for rights on the basis or status of their membership of two groups: namely, children in the here and now (and hence current child rights bearers) and as members of existing ‘future generations’.

This is a seriously under-explored issue in constitutional scholarship, despite the increasing focus on FG and intergenerational justice in that literature. A frequently cited paper by Araújo and Koessler serves as a useful example. Here, the authors assert that nearly half of all constitutions refer to ‘future generations’. In doing so, they regard ‘constitutional provisions mentioning future generations to be those that explicitly refer to a group of individuals who will live in the future whose interests should be taken into account’.⁴³ They do not, however, address the complexities of how different constitutions engage (or not) with the relationship between FG and existing children. The latter may also be understood to ‘live in the future’ and/or regarded as forming part of ‘future generations’ from the perspective of national constitutional protection in some instances, including where constitutions also contain child-specific provisions.

This lack of clarity around FG is reflected in legal argumentation. Those who bring such cases highlight the challenge of defining ‘future generations’ in relation to standing and age-related (particularly birth cohort) discrimination, in particular.⁴⁴ However, even where litigators provide detailed argumentation on why children constitute FG for the purposes of constitutional law protection, courts do not necessarily engage with this in a meaningful way. This has resulted in findings that children are – or represent – FG, without providing a reasoned justification for that conclusion. The Colombian Future Generations case constitutes a useful example: while the original complaint focused in-depth on why children were FG, the Court did not engage explicitly with the issue. The judgment simply mentions in passing that the children are FG.⁴⁵

In contrast, the Ontario Superior Court of Justice in the Mathur case carried out a careful analysis of the relationship between children and FG. The issue arose in relation to whether the child and youth claimants in Mathur had legal standing to represent FG. FG were treated by the courts (both in the context of the state's effort to strike out the application and at the full judgment stage) and the parties as people ‘who do not yet exist’.⁴⁶ In a preliminary finding that the claimants ‘should be given standing for their generation, as well as for future generations’,⁴⁷ the Court applied the three-part test for granting discretionary standing in Canadian public law cases: (i) whether the case raised a serious justiciable issue; (ii) whether the party bringing the action had a real stake or a genuine interest in its outcome; and (iii) whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court.

The Court concluded, among other things, that the case was of public interest in that it transcended the interests of all Ontario residents, ‘not just the Applicants’ generation or the ones that follow’,⁴⁸ as well as that, ‘given their age’, the applicants brought a useful and distinctive perspective to the resolution of the issues on this application as ‘young Ontarians’.⁴⁹ Further thought was given to the distinction between children and FG in the full decision of the Court, which concluded (in the context of the claimants’ arguments on Section 15 on equality rights) that, in contrast to the situation pertaining to children, the distinction regarding FG was not based on the enumerated ground of age but on the ground of ‘generational cohort’.⁵⁰

Moving beyond the constitutional law context, the intergenerational theory literature is of limited assistance in terms of providing a clear steer with regard to the specific definition of ‘future generations’ − including whether or not this should include living children. There is a preponderance of focus in that literature on FG from what Weston describes as a ‘distant or remote future persons perspective’, but this is not uniform.⁵¹ This issue remains despite growing recognition of the nuances posed by children relative to not yet living FG in that literature,⁵² including in the context of judicial action.⁵³ Nor, despite the multiple references to intergenerational equity and/or FG in international environmental law treaties and other documents,⁵⁴ does that body of law provide a conclusive definition of FG (or indeed intergenerational justice) that can be relied on by courts seeking to flesh out this concept in the constitutional rights context.⁵⁵

International human rights law (IHRL) does not provide much assistance to litigators and courts in teasing out the specific relationship between children and FG either. IHRL is relatively clear as to who qualifies as a child and children's rights can generally be understood to adhere to born people under 18.⁵⁶ The definition of ‘child’ in terms of the United Nations (UN) Convention on the Rights of the Child (CRC)⁵⁷ has played a key role in shaping national law approaches to the question of who qualifies as a child for the purposes of constitutional rights protection, both through judicial interpretation of constitutional standards in the light of the CRC and through the direct incorporation of that instrument or its contents into constitutional law.⁵⁸

The same level of clarity around definition does not pertain to FG. Indeed, there remains considerable controversy about whether FG should be recognized as rights holders under IHRL − and even whether FG should be a focus of international law framings at all.⁵⁹ Humphreys, for instance, has criticized ‘future generations discourse’ for being ‘ambiguous as to where “present” stops and “future” starts’.⁶⁰ He argues in that regard that children operate as an example of the way in which temporal generations resist clarification, as ‘our living children or grandchildren are not “future” persons at all’, whereas actual future persons are constantly transiting into the present.⁶¹ In response, Lawrence has pointed out that the fact that the category of children ‘is also constantly changing as persons fall within or outside the definition’ does not prevent children from functioning as a legal category and serving as the basis of group-specific rights.⁶²

The specific scope of FG and the extent to which they benefit from protection under IHRL has always been unclear. Some understandings of ‘future generations’ posited by academics working in the IHRL space explicitly encompass already existing/living/current/born generations, and hence children in the here and now. Skogly speaks about the concept of FG as ‘referring to the rights of current youth and children when they grow into adulthood, as well as other people who will live in the future’.⁶³ On such an understanding, living children qualify for rights on the basis or status of their membership of two groups: namely, children in the here and now (and hence current child rights bearers) and as adults in the future.

Other commentators regard the groups as wholly separate and have conceptualized FG as ‘those yet to be born’⁶⁴ – generations that will be born in the future. Here, living children and FG are discrete groups with child rights bearers (living children) not falling within the category of ‘future generations’ for the purpose of rights protection upon reaching adulthood. Others stress the linkage between existing and future rights claims when considering the potential interactions of children and FG rights. Knox suggests defining a future generation ‘as those people who will be alive at a specific time in the future, such as the year 2100’.⁶⁵ In terms of this approach, ‘many people who will be living then have already arrived and inherited their full allotment of human rights’ and the focus should be on ensuring their rights throughout their lives – both as children and as future adults.⁶⁶

There have been a number of references to FG in the outputs of UN treaty bodies, with the work of the Committee on Economic, Social and Cultural Rights (CESCR) being particularly notable.⁶⁷ Since 2021, there has been a significantly increased focus on the issue of FG as a result of efforts on the part of the UN Committee on the Rights of the Child and the CESCR on their draft general comments on children and the environment and sustainable development and the International Covenant on Economic, Social and Cultural Rights (ICESCR),⁶⁸ respectively.⁶⁹

Moreover, September 2022 saw a Human Rights Committee decision in which that body found, inter alia, that Australia had violated Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR),⁷⁰ which sets out the right of children to such measures of protection as are required by their status as a minor. This resulted from Australia's failure to take adequate steps to ‘protect the rights of future generations of the authors’ community, including the six named children, who are the most vulnerable and affected by climate change’.⁷¹ Elsewhere in its decision, however, the Committee appeared to treat children and FG as discrete groups.⁷² Therefore, the specific relationship between rights of children and those of FG in terms of the ICCPR remains unclear.⁷³

The expert Maastricht Principles on the Human Rights of Future Generations state that ‘future generations are those generations that do not yet exist but will exist and who will inherit the Earth. Future generations include persons, groups and Peoples’.⁷⁴ The Principles recognize that:

States must recognise and respect that present children occupy a proximate position to future generations, and must protect their rights to be heard and other participatory rights, including when advocating for human rights on behalf of themselves and future generations.⁷⁵

However, while constituting a significant authoritative interpretation of what FG should be understood to be for the purposes of IHRL,⁷⁶ the specific nuances of the relationship between the rights of children and those of FG in IHRL ultimately remain to be worked out by those entities tasked with the interpretation and application of IHRL standards (notably UN treaty bodies). The same is true with regard to the extent to which children can serve as representatives or proxies for FG for the purposes of protection through complaints and other monitoring mechanisms under IHRL.

A key opportunity for treaty body consideration of the Maastricht Principles – and the issue of the overlap (or not) between children and FG, as well as their rights more broadly – was presented by the UN Committee on the Rights of the Child's General Comment No. 26 on Children's Rights and the Environment with a Special Focus on Climate Change (GC).⁷⁷ This soft law document, published in August 2023, merits special attention for two reasons in particular.⁷⁸ Firstly, it is the most explicit engagement yet by any international and regional human rights body with the rights of children in the context of environmental harm, including with regard to intergenerational equity and future generations. Secondly, it has received considerable academic, policymaker, advocate and media attention, reflecting its significance and value both in terms of child rights law and IHRL in this area more broadly.⁷⁹ However, while the Committee made reference to FG in different parts of the GC, its overall treatment of this issue, and of intergenerational equity/justice generally, leaves much to be desired.⁸⁰

The introduction to the GC includes a quote from a child stating that ‘I would like to tell [adults] that we are the future generations and, if you destroy the planet, where will we live?’.⁸¹ Later in the document, in a section on ‘Intergenerational equity and future generations’, the Committee states that ‘[w]hile the rights of children who are present on Earth require immediate urgent attention, the children constantly arriving are also entitled to the realization of their human rights to the maximum extent’.⁸² It is not clear whether these ‘constantly arriving’ children are FG in the view of the Committee or whether it is simply highlighting that as more children are born, they are entitled to have their rights realized in the here and now against a backdrop in which the interests of FG are taken into account in an unspecified way.

In the relevant paragraph, the Committee appears to have drawn on language used in a 2018 report by John Knox as then UN Special Rapporteur on the Environment and Human Rights, in which he stated that ‘the division between present and future generations is less sharp than it sometimes appears to be’ and that ‘the line between future generations and today's children shifts every time another baby arrives and inherits their full entitlement of human rights’.⁸³ While ‘[c]oncerns about future generations and sustainable development often focus on the state of the environment in particular years in the future, such as the year 2030 or 2100’, he noted that ‘many people that will be living in 2100 are not yet born, and in that sense truly belong to future generations. But many people who will be living then are already alive today’.⁸⁴ On that basis, he argued that ‘discussions of future generations [should] take into account the rights of the children who are constantly arriving, or have already arrived, on this planet’.⁸⁵ As highlighted above, in 2020, Knox argued in favour of a ‘future generation’ being defined as ‘those people who will be alive at a specific time in the future’.

However, the Committee does not explicitly take this approach in its work – although its adaptation of the 2018 language could be taken to reflect tacit agreement with Knox's view in the 2018 report that ‘[i]t is difficult, if not impossible, to define the rights of individuals who are not yet alive’.⁸⁶ Certainly, the Committee did not respond to the recommendations of those in favour of a more explicit recognition of the rights of FG within the draft.⁸⁷ Furthermore, the Committee makes no reference in the GC to the very significant body of recent work in the IHRL context with regard to FG rights, including the Maastricht Principles, the work of the UN Secretary General in relation to the ‘Summit on the Future’ that is set to take place in September 2024 (which adopts a very similar approach to the relationship between children and FG as the Maastricht Principles);⁸⁸ nor does it have regard to the pending UN Declaration for Future Generations.⁸⁹ This is despite the fact that the Committee was certainly aware of these developments.

The GC makes clear that ‘[t]he Committee recognizes the principle of intergenerational equity and the interests of future generations’⁹⁰ but it does not then go on to define that principle in any detail or address the relationship between FG interests and those of current/present generations, including children. The Committee's final statement in the section on intergenerational equity and FG is that:

[b]eyond their immediate obligations under the Convention with regard to the environment, States bear the responsibility for foreseeable environment-related threats arising as a result of their acts or omissions now, the full implications of which may not manifest for years or even decades.⁹¹

This formulation clearly embraces state responsibility and causality, but it does not make clear how such responsibility relates to FG (or does not). Nor did the Committee engage with the issues of age or birth cohort discrimination in its discussion of Article 2 (prohibition on discrimination in the enjoyment of CRC rights) in the GC,⁹² a topic that could have been used to provide some sense of the scope of intergenerational responsibilities in terms of the CRC.

The Committee's decision to omit any reference to the concept of sustainable development (which was present as a ‘key concept’ in the first draft of the GC) further reduces the potential for the GC to provide a meaningful roadmap for putting intergenerational equity into practice. This is particularly so with regard to balancing the rights and interests of children in the here and now with those of not yet living children (that is, future generations of children) and other future human rights bearers in a context of finite resources.

Interestingly, the Committee's approach does not appear to have been adopted in response to a strong steer from states on this issue. In fact, the language on FG and intergenerational equity drew limited state attention. Although several states made reference to FG in passing in their comments on both the GC concept note and the first draft, very few addressed the relevant sections of the draft in any depth.⁹³ A very small number of states did express concern about the Committee addressing FG. France's comment on the GC concept note stressed that the conceptions of ‘future generations’ and ‘intergenerational equity’ do not figure in the CRC and asserted that the GC should be limited to the principles and rights contained in the Convention.⁹⁴ However, the Committee went on to mention both of these issues specifically. Interestingly, while France's later comments on the draft GC reiterated the general point about Committee restraint in relation to a number of aspects of the draft GC, it did not address the FG section.⁹⁵

Furthermore, although Canada asserted that the Committee's focus in terms of FG (and intergenerational equity) should be limited to born/living children⁹⁶ (reiterating points made in its input on the GC concept note),⁹⁷ the GC does not explicitly limit its scope to children in the here and now. Nor did the GC's approach fully follow Kenya's recommendation in response to the concept note that:

[u]ndertaking a child rights perspective requires broadening the perspective from the immediate present to the distant future. Children's rights should be read by States in line with environmental principles of sustainable development as well as inter and intra-generational equity.⁹⁸

Finally, it is worth noting that the Committee did not respond to the point made by Germany in its comments on the draft GC that the Committee should explain the source and the foundation contained in the Convention on which the principle of intergenerational equity and the interests of FG are based.⁹⁹

Thus, while a hugely important and valuable source of guidance on children's rights and the environment, the GC leaves key questions unanswered regarding the extent to which ‘future generations’ coincide with currently living children (whether as children or future adults) and/or the extent to which FG (however defined) are afforded protection under the UNCRC.¹⁰⁰ It fails to engage with the implications of children's rights for the interpretation and application of the principle of intergenerational equity. We may therefore reluctantly conclude that (at the time of writing at any rate) IHRL does not provide authoritative assistance on these wider points to judges and litigators who might look to it for guidance when addressing gaps and confusions in the domestic human rights law.

One area of potential progress for IHRL in this regard will be the advisory opinions on the scope of state obligations in the context of climate change that are currently pending before the International Court of Justice (ICJ)¹⁰¹ and the Inter-American Court of Human Rights (IACtHR).¹⁰² Requests for these advisory opinions were submitted by the UN General Assembly and the Republic of Colombia and the Republic of Chile, respectively.¹⁰³ Both requests raise the issue of rights of FG expressly.¹⁰⁴ Although children are not mentioned explicitly in the request to the ICJ, they are accorded specific, climate-relevant rights under the ICCPR and ICESCR, both of which instruments are cited.¹⁰⁵ In contrast, the request to the Inter-American Court includes a detailed section ‘regarding the differentiated obligations of States in relation to the rights of children and the new generations in light of the climate emergency’.¹⁰⁶

Written statements submitted to the ICJ (and written comments on those statements) remain confidential at the time of writing.¹⁰⁷ However, at least one written opinion submitted to the IACtHR has stressed the importance of the Court adopting a clear definition of future generations (or indeed ‘new generations’) and that, whatever definition is chosen by the Court, the relationship between ‘future generations’ and living children must be made clear.¹⁰⁸ Other written opinions have highlighted the importance that the Court should engage with the principle of intergenerational equity in relation to future generations of children.¹⁰⁹

The decision of the European Court of Human Rights (ECtHR) in Verein KlimaSeniorinnen v. Switzerland ¹¹⁰ may also to play a role in this respect. While that decision did not involve children's rights, and expressly made clear that the obligations under the European Convention on Human Rights¹¹¹ extend only to ‘those individuals currently alive who, at a given time, fall within the jurisdiction of a given Contracting Party’,¹¹² the Court's judgment expressly distinguished between ‘the different generations of those currently living’ and ‘future generations’.¹¹³ Given the historic influence of the ECtHR jurisprudence on the work of other regional and international human rights bodies, the Court's differentiation between currently living and future generations may well inform the approach of the IACtHR and the ICJ when considering the respective rights enjoyed by children and FG.¹¹⁴

These advisory opinions are very likely to feed into domestic constitutional litigation strategies and judicial decision making as a result of both the legally binding nature of the Inter-American Court's jurisprudence in some constitutional systems and the ‘moral authority and legal weight’ of the ICJ's advisory opinions.¹¹⁵ However, the degree to which these opinions will address the lacuna identified in this article will depend on the extent to which, and how, the two courts engage with the definition of FG, particularly in relation to children.

Ultimately, I am not arguing that there is (or could be) a perfect definition of FG that all courts everywhere should adopt: a key part of litigation and adjudication of group-specific rights over time has entailed engagement with the precise scope of potential groups of rights holders for the purposes of constitutional rights protections.¹¹⁶ Nor am I suggesting that, even if there were such a definition under IHRL, all courts and litigators could or should automatically adopt it. To do so would ignore, firstly, the very different levels of openness of the domestic constitutional systems to IHRL (both hard and soft law) as a source of authority in constitutional interpretation¹¹⁷ and, secondly, the way in which broader jurisdiction-specific constitutional context necessarily impacts on the interpretation and application of constitutional standards, even novel ones drawing on sources external to that constitution. However, the effects of the lack of clear definitions of FG for the purposes of constitutional law in many jurisdictions should not be underestimated. In the next section I turn to the difficulties posed by this definitional lacuna in terms of delineating and enforcing rights claims in the context of climate justice litigation involving child and FG rights.

4. The Challenges Posed by the Definitional Lacuna

I highlighted in Section 2 that children may be regarded as appropriate representatives or ‘proxies’ of FG for the purposes of standing to bring complaints focused on those interests, and discussed a number of cases in which this has taken place. However, the willingness of courts to allow children to assert the rights of FG is far from uniform. As Bertram notes, when it comes to operationalizing intergenerational modalities of legal representation, existing case law demonstrates that judicial concerns about the ability of children to speak for FG in intergenerational litigation weighs less heavily in cases in which present children ‘can stand in for their future iterations’, but is more complicated when it comes to representing not yet living FG.¹¹⁸ This is unsurprising given that distance between generations increases uncertainty as to the effects of specific environmental decision making, as well as the nature of the environment or preferences of FG.¹¹⁹

Of course, the relative indeterminacy of the situations and potential rights-related harms faced by children and FG in the far future will remain regardless of the definition of FG. Indeed, arguably the only way in which this indeterminacy could be reduced is if a definition of FG were to be adopted that operated to exclude not yet living FG − an approach that would raise very serious concerns in terms of the extent to which it reflected a meaningful conception of intergenerational justice beyond the interests of those alive in the here and now. Ultimately, while a convincing definition of FG may encourage (or even mandate) courts to engage with the rights of that group in cases that come before them, it cannot serve as an ‘indeterminacy’ panacea when it comes to judicial engagement with FG rights issues in the context of cases involving child rights.

However, although there are problems with regard to judicial engagement with litigation involving FG and child rights that closing the definitional gap will not resolve, there are others that are created and/or severely exacerbated by the current confusion. Firstly, and at the most basic level, if the courts are going to outline, interpret, and apply rights and obligations on the state in relation to specific groups, they must be able to identify the persons to whom those rights adhere and to whom the obligations imposed by those rights are owed; if there is no clear constitutional understanding of FG, this will be very difficult, if not impossible.¹²⁰ It will also restrict courts from saying with confidence who is entitled to assert the rights that are associated with FG, including children, despite the increasing number of cases including FG and children's rights argumentation coming before them. In turn, this seems likely to contribute to judicial reluctance to engage with FG rights claims at all.

Secondly, where courts are reluctant to engage with FG rights in cases that raise both these claims and child rights arguments, this may create the temptation to adopt ever-broader understandings of children's rights in order to encompass FG-related issues – potentially at the cost of a coherent framework focused on rights harms faced by children in the here and now. Where courts fail to engage with FG but instead use children's rights as a vehicle for addressing issues of intergenerational concern, this may risk child constitutional rights being reduced to ‘future generations rights by other means’. This in turn poses a threat to children's rights as a set of legal protections for living children, as such an approach may lead to those rights being co-opted, instrumentalized or reconceptualized (admittedly in good faith) by those bringing and those deciding on climate justice litigation to advance the rights of others beyond born children.

Nor would children's constitutional rights simpliciter necessarily prove up to the task of dealing adequately with FG rights. While decision making on children's rights may certainly involve balancing the current and future rights-related interests of children (for instance, in balancing rights related to child autonomy and best interests), scholarship and practice in this area have not centred in any detail on balancing the rights of children in the here and now with those of other children in the future – or even with the rights of those same children as future adults. Admittedly, time plays a key role in terms of child rights given that such rights are generally by definition time-bound, and said time-boundedness is often cited as a justification for urgent action on child rights issues, including in the context of environmental harm.¹²¹ However, the issue of intertemporal rights claims remains a considerably under-explored concept in children's rights, both at the constitutional level and indeed in IHRL.¹²² Furthermore, given the limited scope and specificity of children's rights, a dependence on that framework to explore key issues related to a group that may in some instances have significantly different rights and interests from children could lead to an undesirable distortion of the development of FG constitutional rights. The potential damage from such conceptual inexactitude goes in both directions.

Thirdly, flowing from the first two points and of particular importance given the focus of this article, the definitional gap impacts directly on the ability of courts (and indeed litigators) to identify the respective interests of children on the one hand and FG on the other. It cannot be assumed that the interests of children and FG with regard to environmental harm will be identical, particularly when there is a significant time gap between the living periods of child rights holders and FG rights holders.¹²³ For instance, it is certainly possible to imagine situations in which measures aimed at ensuring the longer-term protection and sustainability of the environment may impact negatively on the resources available to address other pressing rights challenges faced by children in the here and now (such as poverty and intragenerational inequality).¹²⁴ Judicial efforts to address potential inconsistency, divergence, and conflict between the constitutional rights and interests of the two groups will be extremely difficult (if not impossible) if it is not clear what the parameters of FG are and what is the extent to which that group (and its rights/interests) overlap and/or diverge from children. One cannot balance effectively or accord an appropriate priority to interests/rights the scope of which and the bearers of which one cannot identify.

Finally, as I have alluded to above and argued in detail elsewhere,¹²⁵ children and FG potentially raise very different issues with regard to key constitutional law tenets that are argued and applied in judicial enforcement of child and FG rights claims, including the separation of powers doctrine and the counter-majoritarian objection. This discussion goes beyond the scope of this article but, in short, it is strongly arguable that the inability of children and FG to exercise either direct or indirect influence on the elected branches of government should serve as the basis of an enhanced role for the courts in protecting their rights in climate change litigation.¹²⁶ It is clear, however, that the rights of existing children focused on the here and now may raise different issues with regard to democratic citizenship, diverse forms of representation, the legitimate scope of majoritarian decision making, and judicial review than is the case for the future rights claims of existing children as future adults or those of not yet existing FG. For instance, the extent of effective virtual representation of not yet living FG and that of children on the basis of shared interests with current voters (or on the basis of empathy or compassion) − and the resultant need for (and legitimacy of) judicial intervention to secure their rights − will almost certainly differ.¹²⁷ If the courts are to engage with the realities of the position of these groups vis-à-vis democratic political decision making on the environment when deciding whether to impose constitutional constraints on said decision making, this cannot be achieved where the groups of rights holders at issue are not clearly identified or identifiable.

5. Conclusion

We are at a crucial juncture in terms of the litigation and adjudication of the rights of children and FG. The immediate and long-term impacts of environmental harm are ever-more evident and pressing; the courts are an increasingly frequent and important destination for those seeking to challenge executive and legislature failure to take meaningful action to secure the constitutional rights of people in the here and now and those of the future. However, in many instances judicial and litigation efforts have been hampered by the lack of precision of definitions of ‘future generations’ under both comparative constitutional and international human rights law.

While not arguing for a specific definition of ‘future generations’ to be employed universally, this article has made clear that it is vital that the definitional lacuna should be recognized and addressed by courts in the cases appearing before them. Without this, the capacity of litigation and adjudication to secure convincing and coherent protection for child and FG rights holders in climate justice cases – whether on the basis of their status as children, members of FG, or both – will remain out of reach. With this groundwork laid, the next stage is for a context-sensitive approach to the whole question of constitutional definition(s) of FG, but that is work for another day (and another article).