Abstract
On 1 September 1985, I started my career as an Academic Assistant at the Faculty of Law of Maastricht University. I was recruited by Kees Flinterman, one of the founding fathers of the Faculty. Soon after that, Kees and Theo van Boven established a Project Group on Human Rights Research. I became a member and, after some time, it was agreed that I should write a PhD thesis on the human right to education, which I defended in 1992. Since then, a lot has happened in the field of human rights law and human rights research. The Maastricht Centre for Human Rights was established in 1993. It became well known for its research on economic, social, and cultural rights, which, at the time, were under-developed, under-researched, and sometimes called the ‘stepchild’ of the human rights family. Already back in 1986, the Limburg Principles on the Nature of State Parties Obligations under the International Covenant on Economic, Social, and Cultural Rights were adopted at an expert meeting in Maastricht to clarify these rights. I attended that meeting as a very junior researcher.
From then on, economic, social, and cultural rights never left me. They became the source of inspiration for my own research, many collaborative projects, PhD research by young colleagues, and cooperation with academia and non-governmental organisations.
I have always been intrigued by the question of how human rights law can be pushed further, with a view to respond to societal changes and challenges, and contribute to a fairer society. In other words, normative legal research about how the law should develop, de lege ferenda.
In this address, I want to reflect on this period since 1985 by highlighting a number of key achievements in the progressive development of the law on economic, social, and cultural rights. Then, I will discuss the latest developments of this ongoing process of pushing the law further, namely the development of the human rights of future generations.
When we follow the news, it is abundantly clear that the planet is in crisis. The future of mankind is at stake and facing ongoing, and very serious, threats: climate change, the reduction of potable water supplies, depletion of natural resources, the lack of renewable energy stocks, the risk of nuclear conflict, loss of biodiversity, a severe burden of financial debts on future generations, and the continuous stimulus to reach higher levels of economic growth, instead of following trends towards de-growth.
The Global Footprint Network has calculated and reported that everything the Earth has to offer this year, in terms of resources and food, has been ‘consumed’ in less than seven months. This year, Earth Overshoot Day fell on 28 July. This is the day on which humankind exhausted its annual stock of biological resources. Our carbon footprint is the total amount of greenhouse gases generated by our actions. The average carbon footprint for a person in the United States is 16 tons, one of the highest rates in the world. Globally, the average carbon footprint is closer to 4 tons. What do these risks and threats mean for members of future generations, and can the law, in particular human rights law, deal with these challenges and risks?
Close to home, there is a hot debate over the need to reduce nitrogen emissions to conserve nature and the planet for future generations. However, at the same time, this probably means expropriating land and farms from farmers, thus interfering with their right to property. Is this legitimate and justified from the perspective of intergenerational justice and equity? These are tough questions to deal with. Is it possible to strike a balance between the different interests at stake, or should one be courageous and forward-looking with a view to preserving life on Earth? What role can human rights law play in this discussion?
In my work, I have been inspired by the mission of the Maastricht Centre for Human Rights, namely that research carried out by members of the Centre aims to be at the cutting edge of global human rights research, and to be forward-looking in its choice of research themes. Research should focus on subjects that raise fundamental questions about human rights, as opposed to mere technicalities. But also, it should consider how human rights are embedded in the daily lives of human beings, as expressed aptly by Eleanor Roosevelt: Where, after all, do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.
Two issues have always appealed to me in my life as a researcher. First, the question of how vague international standards on human rights can be clarified and do justice to the object and purpose of the legal instrument they are part of. And, second, how human rights law should deal with challenging societal phenomena – such as poverty and climate change – where clear standards are missing.
Over the years, I found and created a niche area in which, for a long period of time, only few researchers had been working. This area of research focused on the international protection of economic, social, and cultural rights, and their underlying general issues, particularly the nature of obligations, identifying violations, international monitoring, and supervision by UN procedures and mechanisms. There is a number of rights on which I have worked, including the right to education, the right to food, the right to health and the right to enjoy the benefits of scientific progress. What these human rights have in common is that their normative content was obscure for a long time. They were seen as aspirations, abstract goals of governmental programmes and policies which could not be put into law. This changed in the late 1980s, as academics showed an interest in these rights and the ensuing State obligations. The work of scholars, such as Henry Shue, Asbjorn Eide, Fried van Hoof, and Philip Alston, inspired me, and greatly influenced my own thinking and work.
The normative approach adopted by this field of research focused on the implementation and protection of economic, social, and cultural rights. It led to important expert opinions adopted under the auspices of the Maastricht Centre for Human Rights, in collaboration with other academic partners and – I want to stress this – with key international NGOs working on the protection and promotion of these rights. I specifically want to mention here the long-standing collaboration with Food First International Action Network (FIAN), the International Commission of Jurists, and, more recently, the Centre for International and Environmental Law. These expert opinions have had a significant impact on the academic discourse surrounding economic, social, and cultural rights, but also on soft law documents adopted by UN Treaty Bodies, in particular General Comments. The latter constitute authoritative opinions on how human rights and obligations should be interpreted and implemented at the domestic and international levels. As examples, I would like to mention the aforementioned 1986 limburg Principles, the 1997 Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, and the 2011 Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights. The latter expert opinion deals with the activities of States, beyond their national borders, that have implications on human rights and the nature of their obligations. These Principles address the need for global justice in an era of unfettered economic globalisation. This was also the subject of my inaugural address back in 2007.
But, let's now look ahead: what does human rights law have to say about the numerous challenges mankind faces today? It is well known that a number of domestic and regional courts have paved the way for an approach which would encompass the human rights of future generations. An example is the Dutch Urgenda Case. The District Court of The Hague ruled that the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the State must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.
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In the second part of this address, I will explain the rationale for a set of Principles laying down the human rights of future generations; what are the underlying legal, moral, and ethical notions; who are entitled to these human rights; who has obligations and what type of obligations, and which legal sources can and should be used in support of the recognition of these human rights.
What will follow next is a bit of history to contextualise the Maastricht Initiative and its objective of providing a legal expert opinion on the human rights of future generations. In 2017, Rolf Künnemann from FIAN and I took the initiative to bring together a number of academics, representatives of human rights NGOs, and civil society organisations, with a view to discuss and agree upon a legal expert opinion on the human rights of future generations. This would be similar to three other human rights expert opinions adopted in Maastricht in 1986, 1997, and 2011. A Steering Group was established, composed of academics from Lancaster University, Maastricht University, FIAN, and the Centre for International Environmental Law. We reached out to experts and organisations in different branches of law, such as environmental law, constitutional law, human rights law, and public international law, and from the Global North and South, and asked for their opinions and input. Over the years, we organised meetings and consultations, and established an online interactive database of our resources and working materials. In 2021, a small group of seven experts were established to draft a set of Principles on the human rights of future generations. The group was composed of legal experts of different regions and backgrounds, including one expert with an Indigenous background. It was agreed that the Principles should be drawn from existing human rights law and other branches of law, but also build upon existing laws in order to contribute to the progressive development of laws. Essentially, the text should not propose new human rights and should have a solid legal basis.
So far, the group of experts have produced a draft text which was subject to a round of oral and written consultations with scholars and representatives of NGOs in October 2022. Next, a meeting of the expert group is planned for February 2023 in Maastricht. At that meeting, the final draft text will, hopefully, be agreed upon, finalised, and adopted.
The perspective from which the human rights of future generations should be approached is from the understanding that what is presently at stake is an existential threat to humankind and the planet, in light of the need to protect and preserve life and nature. How will people living 100 years from now, in 2122, look at us? I was inspired by the philosopher Roman Krznaric's book, The Good Ancestor, wherein he asked a number of uneasy and worrying questions: have we behaved like good ancestors? What do we leave behind for future generations? How will future generations remember us? Will they hold us accountable?
Recently, Dutch Prime Minister Rutte, talking about the historical period of Dutch colonial slavery, asked the question: can you hold people that live today responsible for something that happened generations ago? For our topic, that question can be rephrased as: can you hold people that live today responsible for something that will happen generations from now in the future? My answer would be yes, because there is ample scientific evidence about the future effects of our current conduct.
Thinking about life in the distant future has always been a source of inspiration for writers and artists. When I was a teenager, there was a very popular song on the radio called In the Year 2525 by Zager & Evans. One of the verses of the song went like this:
“In the year 9595
I’m kind of wondering if man is gonna be alive
He has taken everything this old earth can give
And he ain’t put back nothing.”
Why do we need a set of Principles on the Human Rights of Future Generations? The most obvious and simple reason is to make sure that the basic human rights of future people are recognised today as part of the law, and are given effect now and in the future. A set of Principles would fill a normative gap and lay down the substance of human rights of people who do not exist yet. These Principles would clarify who is to be held accountable when the human rights of future people are jeopardised. Finally, they would define which existing protection mechanisms and remedies can be used to vindicate the rights of future generations.
Why should we bother with the human rights of members of future generations? Is it our responsibility? There are a number of underlying principles that provide a legal, moral, and ethical justification for accepting and confirming the human rights of future people. First of all, there is the principle of universality of human rights. In my view, this is a dynamic concept, which, in essence, means that human rights apply always, everywhere, and for everyone. This includes people who are not yet born. If we do not consider it as such, then ‘universality’ would be time-bound and qualified. So, universality has an intertemporal dimension. Second, there is the principle of human dignity, which is said to be inherent to the human person. It would not make sense, nor would it be logical, to deny future people the right to live a life in dignity. Third, the principle of intergenerational justice and fairness requires present generations to not burden future generations with situations and conditions that jeopardise the enjoyment of human rights, which many of us, today, fully enjoy without many obstacles. The right to food and water is an example.
Another difficult issue to tackle is how doing justice to the human rights of future generations relates to the notion of progressive realisation of social, economic, and cultural rights, which is the key notion of the International Covenant on Economic, Social and Cultural Rights of 1966. Is the idea of achieving higher levels of realisation of socio-economic rights, and, consequently, the depletion of natural resources for the production of goods, compatible with the notion of intergenerational justice and transgenerational responsibility?
Linked to the idea of fairness between generations are more recent notions of planetary health and sustainable development. The Sustainable Development Goals and its 2030 Agenda refer to future generations, however, one may ask the question: what is the ambition and plan of action beyond 2030? Does the Agenda for Sustainable Development stop in 2030?
Then, there are a number of basic legal principles that underlie relations between States and provide guidance for the conduct and policies of governments. These include the ‘do no harm’ principle, the principle of common but differentiated responsibilities, and obligations between States in environmental law and climate law in particular. Another basic idea is the so-called Public Trust doctrine, which was developed in the USA and requires US federal and State governments to hold vital natural resources in trust for the public beneficiaries – this entails both present and future generations.
Of fundamental and key importance is the precautionary principle. It aims to protect the environment from serious and irreversible harm by taking timely measures, even if there is no, or not yet, hard scientific evidence that negative effects on the environment will occur. This principle has a solid basis in general international law, international environmental law, and domestic law. The principle is linked to the general duty of care, according to which States have to protect their citizens from harm that results from environmental degradation occuring now and in the future.
So far, I have mentioned ideas and principles that mainly have Western roots and backgrounds. It is interesting to note that Indigenous concepts, knowledge, and principles may also guide the protection of the rights of future generations. One example is the so-called Seventh Generation Principle which dates back to Native North American notions of hundreds of years ago. It entails the idea that the decisions we take today concerning the use of water, energy, and natural resources should result in a sustainable world seven generations in the future.
We can also be inspired by the work and ideas of classical and well-known legal scholars, such as Hugo de Groot (Grotius). In his time, Grotius filled a vacuum by legally defining natural law and areas beyond the national acquisition and sovereignty of States (specifically, the Commons – nature, air, the high seas, the deep seabed, and the polar regions). What, and how, can we learn from the author of Mare Liberum to protect the Commons, the planet, and prevent natural and human-made disasters? Can we formulate a new natural law that not only centres on human nature, but also involves nature itself as an unconditional part of our existence? How do we protect, safeguard, and restore the Commons, forests, rivers, and natural resources for our future generations if we are unable and unwilling to use and share these resources equally and responsibly today?
When we talk about human rights of future generations, whose rights do we have in mind? In other words, are these individual rights, or rather collective rights belonging to future generations as a group? This is a difficult question. The Universal Declaration of Human Rights refers to ‘all members of the human family’. It is impossible to identify individual people by name who do not exist yet. However, we know for certain that the human family, at large, is and will be composed of different generations: present and future ones. They must all be treated on an equal basis. Each future generation is composed of individual human beings – right-holders who are currently unable to claim their rights. As such, they need to be represented by members of present generations, such as Ombudspersons or trustees who can speak and submit claims on their behalf. Examples from Wales, Hungary, and Israel show that this is possible and that practical arrangements can be made to give future generations a voice.
A sensitive question is whether present children should be considered as members of future generations. Many social movements against climate change have been initiated by children and, indeed, they can be seen as powerful advocates seeking a change in governmental and human behaviour. It is also true that most children under 15 years of age will live in the future, for many years to come, and will probably have difficulties in enjoying all of their human rights, notably, the right to a healthy environment. However, in my view, they are not part of ‘future generations’, because they already exist. In addition, they can rely on current human rights law to secure their rights.
The question again arises: which human rights do we have in mind when we think of future people? In principle, the idea of the universality of human rights implies that all the rights of the Universal Declaration apply to future people. However, there are a number of rights that are particularly threatened by present dangers. This includes the right to life, subsistence, and security; the right to food, water, housing, and health, and the right to a safe, clean, healthy, and sustainable environment. These rights must be protected to secure human life in a sustainable way in the future, both in the short term and the long term. If these conditions are ignored, the idea of human rights as such would lose all credibility as legal and moral directives.
Is there, currently, a legal basis for the recognition of the human rights of future people? There are quite a number of treaties and national constitutions that contain a reference to (the human rights of) future generations. This is usually found in the Preamble and not in the operative parts. Such examples of treaty provisions come from different branches of public international law, such as environmental law, the law on the conservation of natural species, and human rights law. The Preamble to the Charter of Fundamental Rights of the European Union affirms that ‘enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations’. 4
An important new development is currently taking place within the framework of the Council of Europe. Its Parliamentary Assembly is proposing to add the right to a clean, safe, healthy, and sustainable environment to the European Convention on Human Rights. It defines this right as: ‘the right of present and future generations to live in a non-degraded, viable and decent environment that is conducive to their health, development and well-being’. 5 This means that future generations are recognised as right-holders. Thus, States have duties towards these future generations. The extension to future generations as right-holders is motivated by the principles of transgenerational responsibility, equity, and solidarity. This is a promising development.
When the rights of future generations are recognised as human rights, it is self-evident that other actors have obligations. There is no doubt that present governments have obligations towards those living in the far future. This is difficult to accept and implement for politicians, civil servants and policy-makers who usually act for the short term and for immediate results. Politicians often do not look beyond the date of the next elections. Recent case law has shown that domestic courts increasingly rule that companies also have obligations and responsibilities towards the protection of the environment, for example, by reducing greenhouse gas emissions. In addition, it should not be forgotten that Article 29 of the Universal Declaration of Human Rights provides that everyone has duties to the community. Article 30 stipulates that States, groups, or persons do not have a right to engage in any activity aimed at the destruction of any of the rights and freedoms of the Universal Declaration. The considerations just mentioned imply that, from a general perspective, States have an obligation to respect, meaning that they must do no harm by violating the rights of future generations. Second, they have an obligation to protect by regulating, monitoring, and sanctioning the conduct of private actors. Third, they have an obligation to prevent by taking precautionary measures as a duty of care. Finally, they have a duty to fulfil by creating an enabling and constructive environment aimed at securing the human rights of future generations in the short-, medium-, and long-term. The latter can be done by establishing a prior permanent impact assessment on the effects of bills for new legislation and new policy measures on the human rights of future generations.
Being a member of a global society means that one's human rights may be affected by conduct of actors who are outside of the territory where one lives. Transborder pollution of water, air, and soil and the effects of climate change are clear and well known examples. This means that present States not only have territorial obligations, but also extraterritorial obligations that go beyond national borders. These extraterritorial obligations are of a global nature, on the basis of the principles of solidarity and international cooperation aimed at securing worldwide sustainability.
I now arrive at a number of concluding remarks about the human rights of future generations. First, it is abundantly clear that there is an urgent need to act now in order to safeguard the human rights of future generations. Let me quote Grotius’ personal motto, which may inspire us: Ruit hora, which means time is running away. This is appropriate for our times as well. We have to use the present time, to the best of our abilities, to preserve human life in the future and protect the planet.
Second, the notion of human rights and human rights language is appealing to many all over the world, in particular the marginalised and vulnerable. Finally, the basics of a legal framework to protect the human rights of the members of future generations is there. This legal framework already consists of rights and obligations. However, it needs to be progressively developed. The challenge is to extend its scope and apply it to human beings that do not exist yet. A new set of Maastricht Principles as a legal expert opinion can contribute to this process. States need to be conscious of and contribute to this development as it is the common concern of humankind. This requires political will, determination, and courage.
It makes sense that we take responsibility now for our present and future conduct that may affect the lives of our offspring. Only in this way, we are able to act as representatives or guardians of those who do not exist yet, but who will have to deal with the effects of our present conduct.
Thank you for your attention.