B Explanatory memorandum
by Mr Pedro Cegonho, rapporteur
1 Introduction
1. On 28 April 2022, several members
of the Parliamentary Assembly tabled a motion for a resolution on “Safeguarding
future rights for future generations”.
Note The motion was referred to the Committee
on Social Affairs, Health and Sustainable Development for report
and I was appointed rapporteur on 23 September 2022. At the committee
meeting on 22 May 2023, the title of the report was changed to “Safeguarding
human rights for future generations” to better reflect its scope.
2. The world is currently dealing with multiple intersecting
crises that threaten human lives, livelihoods and rights of both
present and future generations.
Note It is internationally agreed upon
that the present generations have a responsibility to halt and prevent
developments that could threaten the survival of future generations.
Note While the “triple planetary crisis”
is the biggest existential challenge in terms of safeguarding rights
for future generations, other mainly socio-economic challenges have
a lasting impact on future generations and their human rights and
pose threats to intergenerational equity. That is why the motion
for a resolution covers all human rights for future generations
and the corresponding obligations for the States.
3. At the level of the United Nations, the report on Our Common
Agenda, adopted in 2021, sets out the UN Secretary-General’s vision
for the future of global co-operation around the 2030 Agenda for
Sustainable Development, calling for solidarity between peoples,
countries and generations and a renewal of the multilateral system
to accelerate implementation of existing commitments and fill gaps
in global governance that have emerged since 2015. With that aim
in mind, a Summit of the Future on “Multilateral Solutions for a Better
Tomorrow” is to be held in September 2024.
4. In the same way, the Final Declaration of the Reykjavik Summit
organised in May 2023 reaffirms the commitment of Heads of State
and Government to meet current and future challenges, as well as
to raise up to the expectations of future generations. It stresses
that the Council of Europe is part of a wider international community
and underlines the importance of strengthening dialogue with other
international organisations and working together, notably for the
implementation of the UN Sustainable Development Goals.
6. Finally,
Resolution
2545 (2024) “Mainstreaming the human right to a safe, clean, healthy
and sustainable environment with the Reykjavik process” calls the
Heads of State and Government of the Council of Europe to adopt
a post-Reykjavik Strategy which will be implemented by and for the
young generations and to lay down strict requirements in terms of
transparency, ethics, accessibility, responsibility, efficiency,
and reliability.
2 Challenges and opportunities for intergenerational
equity and human rights for future generations
7. The term “future generations”
refers to all people who will come after us. Their lives and eventual
ability to effectively enjoy all human rights and meet their needs
are already being influenced by our actions today.
Note Human rights for future generations
are inherently linked to sustainability, which requires an integrated approach
that takes into consideration environmental concerns, along with
economic, social and cultural development. A sustainable world must
meet the needs of the present generation without compromising the ability
of future generations to meet their own needs, thus ensuring intergenerational
equity.
8. The interlinked threats of climate change, biodiversity and
ecosystem loss and pollution, also known as the triple planetary
crisis, violate the rights of countless people across the world
every day and threaten the effective enjoyment of human rights of
future generations.
Note Those who have contributed the least
to climate change are also those who suffer the most, and future
generations will have to live with the consequences of (in)action
by current policy makers, raising questions of justice and equity
between the rich and poor, nations and generations. The future of
the planet and humankind are at risk if we don’t step up efforts
to ensure a safe, clean, healthy and sustainable environment for
all.
9. The world is grappling with other challenges that pose significant
risks to the rights of future generations, such as growing socio-economic
inequalities, public health emergencies, wars and conflicts, and
rapid technological advances, adding concerns about intergenerational
solidarity and justice. While the rights of future generations are
often associated with the preservation of natural resources and
the environment for their benefit, it must not be overlooked that
human rights are indivisible and interdependent. Thus, States must
take action to safeguard the full range of human rights which are
essential to enabling future generations to live in peace and dignity.
10. Halfway to 2030, the world is woefully off track to achieve
the UN Sustainable Development Goals.
Note Regional and international co-operation
must be strengthened to fulfil the ambitions of existing agreements.
In this regard, a reinvigorated multilateralism is imperative to
effectively respond to current and future challenges and opportunities.
The Reykjavik Summit and its Declaration showcased political commitment
to meet these challenges, and several other multilateral initiatives,
including at the UN level, are underway. For policy decisions to
have legitimacy for future generations, it is important to empower
children and youth, who will inherit the planet, and meaningfully
include them in decision-making processes. Due considerations must
also be taken to safeguard the interests of yet unborn generations,
who are not alive yet to tell us what they need or think.
3 Reaffirming
commitment to future generations through reinvigorated multilateralism
3.1 United
Nations: towards a “Pact for the Future”
11. The idea of safeguarding rights
for future generations emerged already in the mid-1940s. With the
end of the second world war, the UN was built on the idea to save
“succeeding generations from the scourge of war” as reflected in
the preamble of the UN Charter. Subsequently, the idea found its
way in other UN instruments. The 1972 Stockholm Declaration on the
Human Environment lists as its first principle the need to protect
and improve the environment for future generations, and the 1992
Convention on Biological Diversity expresses in its preamble the
conservation of biological diversity for the benefit of present
and future generations. In addition, the 1993 Vienna Declaration
and Programme of Action provide that the “right to development should
be fulfilled so as to meet equitably the […] needs of present and
future generations”. In 1997, UNESCO adopted the Declaration on
the Responsibilities of the Present Generations Towards Future Generations,
underlining that “present generations have the responsibility of
ensuring that the needs and interests of present and future generations
are fully safeguarded”.
12. However, since then the threats to the rights of future generations
have further accumulated and must thus be continuously re-evaluated
from a modern and critical perspective. In this regard, the priorities
of young people can be a possible indicator. Their inclusion in
decision-making processes can be considered as an investment in
immediate returns. The UN underlines as the most urgent matters
the safeguarding of a healthy planet, strong institutions, social
protection, education, employment as well as strong health security
and health emergency preparedness.
Note For
example in 2016, the UN Committee on Human Rights recognised that environmental
degradation constitutes a serious threat to the ability of present
and future generations to enjoy the right to life.
Note
13. In 2021, the UN Secretary-General launched “Our Common Agenda”
a landmark report for action, which focuses
inter alia on future generations and
how to respond to future challenges.
Note In line with the agenda, the UN
published a
Policy
Brief “To Think and Act for Future Generations” in March 2023. The brief includes suggestions for practical
steps to safeguard the interests of future generations and preserve
their ability to effectively enjoy all human rights. The first step
foreseen is the appointment of a Special Envoy for Future Generations
with advisory and advocacy functions. The second step is the increase
of a better use of foresight, science, and data, and the third step
is a forum for future generations.
Note
14. As part of the policy brief, the UN has held several consultations
and the General Assembly has decided to hold a Summit of the Future
in 2024 on “Multilateral Solutions for a Better Tomorrow”, where
a Pact for the Future will be central. The Summit is to be held
in New York in September 2024. The UN proposes concrete measures
to reinforce the human rights of future generations, including the
implementation of long-term intergenerational thinking in decision
making and the endorsement of a Declaration for Future Generations
and a global digital compact, which will be annexed to the Pact
for the Future, subject to intergovernmental support. The Declaration
is supposed to identify and enable to manage and monitor global
existential risks and orient policies and programmes towards long-term
sustainable development.
Note It will
entail legally binding obligations and can therefore become a strong
legal instrument in the fight for safeguarding human rights for
future generations.
15. Moreover, the Office of the United Nations High Commissioner
for Human Rights (OHCHR) held a roundtable on “
The
Universal Declaration of Human Rights at 75: Looking to Future Generations” on 26 June, 2023, in relation to the Secretary-General’s
“Our Common Agenda” initiative. The event aimed to emphasise the
significance of the Universal Declaration of Human Rights in tackling
emerging issues and challenges, as well as to serve as a foundation
for addressing future challenges, including the human rights of
future generations. The roundtable reviewed recent progress in the
area of human rights for future generations and identified the main
challenges to be met in this area.
16. Based on the recommendations received during the roundtable
mentioned above, the OHCHR put forward specific proposals to strengthen
the human rights of future generations at its annual meeting with member
States on 28-29 June 2023. These proposals involve various actions
such as encouraging long-term intergenerational thinking in decision
making; adopting a Declaration on Future Generations; assigning
a United Nations Special Envoy for Future Generations; improving
co-operation among UN entities; supporting civil society involvement;
promoting education and awareness-raising; establishing accountability mechanisms;
evaluating existing international human rights instruments; and
developing new ones.
Note
3.2 Council
of Europe: United around our values for present and future generations
17. In its work, the Council of
Europe has also addressed the problems regarding the safeguarding
of human rights for future generations in their multifaceted dimensions.
For instance, it has recognised its own role in the matter and the
need to contribute to improvements responding to new societal developments.
This encompasses especially the protection of social rights in times
of crises when vulnerable groups are at an increased risk of poverty,
marginalisation, and social exclusion.
Note
18. The 2015 “
Brussels Document” drawn up at the conference on the “Future of the protection
of social rights in Europe”, at the initiative of the Belgian Chairmanship
of the Committee of Ministers, sets out a variety of objectives
and proposals for the improvement of the protection of social rights
in Europe. It confirms a broad consensus on the “need to better
take into account the requirements of social rights in policies
implemented in Europe in the response to the economic, financial
and sovereign debt crises; and to strengthen to this effect the
possibilities of legal remedies against violations of social rights”.
In this regard it was agreed that full effectiveness must be given
to the European Social Charter (revised) (ETS No. 163) and co-ordination
between the member States must be improved.
19. The former Commissioner for Human Rights has recognised in
her work that environmental degradation may affect not only the
right to life or the freedom from inhuman or degrading treatment,
but also a variety of economic, social and cultural rights.
Note In a Declaration made on 27 February
2020, the Georgian Presidency of the Committee of Minister said
that “life and well-being on our planet is contingent on humanity’s
collective capacity to guarantee both human rights and a healthy
environment to future generations.” Moreover, it was noted that
“[g]reater collective action at the European level would set a global
precedent and reduce the foreseeable risk of irreparable harm to
the human rights of future generations”.
20. During the 4th Summit of the Council of Europe, held in Reykjavik,
on 16 and 17 May 2023, it was underlined that “we need a modern
Council of Europe enabling us to meet current and future challenges
as well as the expectations of future generations”. One of the outcomes
of the Summit was a political declaration which set the path for
countries as well as for the Council of Europe, for the benefit
of all Europeans, including future generations. This Declaration
underlines in particular that the Council of Europe has the necessary
tools and structures to address human rights and the environment,
and that it can play an important role in this context.
21. I am especially pleased that the Reykjavik Declaration affirms
that human rights and the environment are intertwined and acknowledges
that a “clean, healthy and sustainable environment is integral to
the full enjoyment of human rights by present and future generations”.
In January 2024, the Secretary General of the Council of Europe
set up a new directorate within the Directorate General Human Rights
and Rule of Law which is dedicated to social rights, health and
environment and more specifically to following up the Reykjavik
process and the environment. An Intersecretariat Task Force on the
Environment was subsequently established, its first task being to
take stock of existing activities, planned activities and proposals
for new activities. It also proposed elements for the development
of a first Council of Europe strategy on the environment. It is
my wish that this strategy will reflect a strong commitment to creating
a new legal instrument in the field of human rights and the environment
taking into account the global and transfrontier challenges of climate
change.
4 Invoking
the rights of future generations before the courts: environmental
litigation
22. Numerous written constitutions
nowadays contain references to future generations.
Note This has given rise to citizens
invoking the rights of future generations and intergenerational
equity in litigation. Courts are increasingly reinforcing the protection
of future generations, especially in cases concerning the environment and
nuclear testing.
Note Climate change-related
litigation cases have more than doubled since 2015.
23. An example of approaches by national courts can be found in
the
“Urgenda”
case by the Dutch High Court, in which it argued that a future
risk of which the consequences are predictable may already give
rise to an imminent risk of harm and the related duty to protect,
respect and fulfil human rights in the present. The German Federal
Constitutional Court took the reasoning even further by establishing
an intergenerational duty to protect, related to human rights and
climate in its
“Klimabeschluss”
(climate judgment) of 24 March 2021.
24. Some argue that courts in the Global South have been more
progressive, ruling in favour of the plaintiffs. The cases brought
before courts in developing countries “demonstrate significant and
often successful use of human rights principles, based on strong
rights provisions in national constitutions, precedent in regional human
rights tribunals, a history of innovation in recognising environmental
rights, and the urgency and immediacy of the climate change threat
to human rights in many countries”.
Note
25. One important case is the Colombian case
Future Generations v. Ministry of the Environment
and Others from 2018, where 25 young plaintiffs filed
a constitutional petition against the Colombian Government and several
corporations to protect their fundamental and human rights, arguing
that the Colombian Government had failed to comply with its international
commitments to prevent the deforestation of the Amazon and that
this had a disproportionate impact on young people and future generations.
Note The Supreme Court invoked the principle
of solidarity and held that humans of every generation are entitled
to environmental rights and that failing to tackle environmental
damage compromises future generation’s access to resources and the enjoyment
of their rights.
26. The International Court of Justice (ICJ) has on multiple occasions
considered questions related to intergenerational equity.
Note Judge
Weeramantry in his dissenting opinion to the “Legality of the Threat
or Use of Nuclear Weapons” held that: “[the ICJ], as the principal
judicial organ of the United Nations, empowered to state and apply
international law with an authority matched by no other tribunal
must, in its jurisprudence, pay due recognition to the rights of
future generations”. In March 2023, following the lead of the Pacific
Island State Vanuatu, the UN General Assembly unanimously voted
to request an advisory opinion from the ICJ on the legal obligations
of States under international law to protect the rights of present
and future generations against the adverse effects of climate change.
In January 2023, the Inter-American Court of Human Rights also received a
request for an advisory opinion on the climate emergency and human
rights submitted by the Republic of Colombia and the Republic of
Chile.
Note
27. On 9 April 2024, the European Court of Human Rights delivered
its decisions in the first “climate cases”. In one of them, Verein Klimaseniorinnen Schweiz and others
v. Switzerland, four women and an association representing
over 2 500 older women claimed that the Swiss authorities’ failure
to take sufficient action to mitigate global warming violated several
of their fundamental rights. The Court, sitting as a Grand Chamber, found
a violation of Article 8 of the Convention (respect for private
life). The Court’s judgment was based on the clearly stated premise
that the deleterious effects of climate change raised the question
of sharing the burden between generations, including where future
generations are concerned. I think it appropriate to quote one particular
passage of that judgment here: “it is clear that future generations
are likely to bear an increasingly severe burden of the consequences
of present failures and omissions to combat climate change (…) and
that, at the same time, they have no possibility of participating
in the relevant current decision‑making processes. By their commitment
to the UNFCCC, the States Parties have undertaken the obligation
to protect the climate system for the benefit of present and future
generations of humankind... In the present context, having regard
to the prospect of aggravating consequences arising for future generations,
the intergenerational perspective underscores the risk inherent
in the relevant political decision‑making processes, namely that short‑term
interests and concerns may come to prevail over, and at the expense
of, pressing needs for sustainable policy‑making, rendering that
risk particularly serious and adding justification for the possibility
of judicial review” (paragraph
420).
28. This consideration given to intergenerational equity has resulted
in some very concrete case law novelties potentially benefiting
future generations.
29. As regards the admissibility of applications submitted by
associations, the Court considers that the distribution of effort
calls for a relaxation of the conditions required for associations
to bring an action on behalf of individuals and complain of an infringement
of their right to respect for private life. Without calling into question
the exclusion of
actio popularis by
the Convention system,
Note the Court has introduced
a new “test” for assessing whether an association has standing to
bring an action before it. This test is mainly inspired by the principles
set out in the Aarhus Convention on access to information, public
participation in decision-making and access to justice in environmental
matters. As a result, associations involved in the fight against
climate change now have a form of collective action (“class action”)
to bring before the Court without having to demonstrate that their
members are personally affected by the threats complained of.
30. When considering the merits of the case, the Court then ruled
that the States Parties now had specific positive obligations in
the area of climate change to reduce their greenhouse gas emission
levels in order to achieve net neutrality, in principle over the
next three decades. More specifically, the Court stipulated that,
for this to be genuinely feasible and to avoid a disproportionate
burden on future generations, the States must take immediate action
and set adequate intermediate reduction goals for the period over
which net neutrality is to be attained. (paragraphs 548 and 549).
31. Regardless of the potential offered by these case law developments,
I would point out that environmental protection via the Court is
by definition indirect as it is dependent on the violation of the
human rights enshrined in the European Convention on Human Rights
(ETS No. 5). Moreover, and to my mind, this seems to be a far more
substantial limitation for future generations, the Court adopted
a restrictive interpretation of the notion of jurisdiction of the
respondent State to establish its own competence and refused to
change it for climate litigation. In its decision of 9 April 2024
declaring the application in the case of Duarte
Agostinho and others v. Portugal and 32 Others inadmissible,
the Court held that the applicants came under the sole jurisdiction
of Portugal and not of the 32 other States. The Court reiterated
that it had “consistently rejected the idea that the fact of a decision
being taken at national level which has an impact on the situation
of a person abroad could in itself establish jurisdiction of the
State concerned over the person” (paragraph 184). Accordingly, while recognising
that “States have ultimate control over [greenhouse gas emitting]
public and private activities based on their territories” (paragraph
192) and that these may have an “adverse impact on the rights and
well-being of people residing outside its borders” (paragraph 193)
the Court did “not find it possible to consider that the proposed
positive obligations of States in the field of climate change could
be a sufficient ground for holding that the State has jurisdiction
over individuals outside its territory or otherwise outside its
authority and control” (paragraph 198).
32. This approach leaves a substantial “vacuum”, with the Convention
system falling short of the environmental challenges facing future
generations and at odds with, for example, the Inter-American Court
of Human Rights, which has recognised the extraterritorial nature
of States’ human rights obligations in connection with environmental
damage (or even the risk of such damage) attributable to a State
party.
Note
33. In its Resolution 2477 (2023) “Environmental impact of armed
conflicts” the Assembly supported the need to recognise extraterritorial
human rights obligations for State conduct outside territorial borders
in situations where the environmental impact that can be attributed
to the State is “direct and reasonably foreseeable”. In his explanatory
memorandum accompanying Resolution 2545 (2024) and Recommendation 2272
(2024) “Mainstreaming the human right to a safe, clean, healthy
and sustainable environment with the Reykjavik process”, our colleague
Simon Moutquin (Belgium, SOC) quite rightly emphasises that with
the speed at which environmental problems are growing and intensifying,
a new reality has emerged: the right to a healthy environment is
a shared human asset. Bearing this in mind, the Council of Europe’s
standard human rights treaties may prove too narrow to guarantee
environmental human rights effectively and provide solutions to
global and transfrontier problems. I can but agree with his view
that it seems inevitable that we will be forced to question the
anthropocentric nature of the right to a healthy environment and
rethink the approach centring on individual rights.
5 The
Maastricht Principles: an attempt to clarify the scope of human
rights for future generations
34. In 2017, a group of legal and
human rights experts around the world
Note undertook a six-year process
to examine the landscape of international human rights law as it
applies to the rights of future generations, resulting in the Maastricht
Principles on the Human Rights of Future Generations (the Maastricht
Principles).
Note They were adopted in early February
2023 and presented at the UN Human Rights Council in June 2023.
35. The Maastricht Principles are a set of guidelines that intend
to clarify how international human rights law applies to future
generations. They should guide decision makers in their response
to fundamental questions as to how to effectively integrate the
human rights of future generations in laws and concrete declarations
so that the rights of future generations are respected, protected
and upheld on the basis of the legal architecture that has evolved
over the last 70 years. The Principles state that there is no limitation
ratione temporae to human rights,
including the right to a clean, healthy and sustainable environment.
Human rights are fully applicable to future generations. At a time
when States are considering how future generations are to be protected,
the Principles stipulate that we must first recognise that future
generations are already inherently covered by the existing body
of human rights law. Consequently, respecting, protecting and upholding
the rights of future generations is simply a matter of upholding
a fundamental concept of human rights law: equality and non-discrimination.
Note
36. The Principles put forward a progressive interpretation and
advancement of existing human rights norms in the context of the
human rights of future generations. They acknowledge that as international
human rights law progresses, States may have to take on additional
obligations.
Note
37. Moreover, the Principles emphasise that future generations
have individual and collective human rights, including but not limited
to, civil and political rights, economic, social and cultural rights,
the right to a clean, healthy and sustainable environment, the right
to development, the right to self-determination, and the right to peace.
They also recognise that some groups and peoples may be entitled
to specific or additional rights as a result of their past or present
situations of marginalisation or discrimination.
38. The Principles provide examples of how States should fulfil
their responsibilities in various areas, including environmental
protection, addressing climate change, promoting sustainable development, upholding
the rights of indigenous peoples, children, women, LGBTQI+ community,
managing migration and displacement, dealing with armed conflicts
and post-conflict situations. They also propose ways for States
to assess their adherence to these obligations through domestic
legislation, judicial review mechanisms, reporting procedures, involving
the public in decision making, facilitating discussions across generations,
and promoting international co-operation.
39. Although the Principles are not legally binding
per se, they represent a progressive
interpretation and advancement of existing human rights norms with
regards to the human rights of future generations. They serve as
a helpful reference for States to ensure that any efforts to support
future generations are consistent with international human rights
law. It is believed that current and future proceedings pending
before courts relating to the rights of future generations could
be guided by the new Principles. As argued by the authors of the
Maastricht Principles, “creating new legal mechanisms can take decades
and does not come with a guarantee of action. However, adapting
existing legal and regulatory regimes can have immediate impacts
on legal outcomes to protect the human rights of future generations.”
Note The Principles are designed to be periodically
revised as human rights law progresses.
6 Conclusions
40. The policy decisions that we
take today will have long-lasting impacts on future generations
and their human rights fulfilment. The world is currently faced
with multiple and intersecting crises that threaten the rights of
both current and future generations. It is thus important that States
adopt an integrated approach that takes into consideration environmental
concerns, along with economic, social and cultural development. Intergenerational
equity should be a leading principle in political decision making
involving children and youth, as well as due consideration for unborn
generations – who will inherit the planet after us.
41. While a number of international treaties and multilateral
agreements give rights to current and future generations with regard
to sustainability and economic, social and cultural rights, stronger
commitment is needed on the part of States to deliver on these.
Courts have historically played a significant role in progressive human
rights interpretation and laying the foundations for many of the
rights we enjoy today. Some of the litigations concerning future
generations have already, to some degree, influenced policy actions
at national and multilateral levels. It is encouraging that the
Council of Europe has acknowledged the need to move forward with
safeguarding human rights for future generations. We trust that
the post-Reykjavik Strategy will mark our Organisation’s firm commitment
to show leadership in this field by building on existing work, such
as the “Maastricht Principles on the Human Rights of Future Generations”.
42. In the field of climate change, which is currently the most
visible, the Council of Europe is expected to make a major qualitative
leap forward for future generations, and to question wisely how
to go beyond the anthropocentric nature of human rights.
