II. The genesis and evolution of the recognition of future generations’ interests

The need to protect the interests of those yet to be born is far from new. Over time, various legal texts and documents have recognised the interests of future generations, providing precedent for taking them into account in decision-making. The very same concept of intergenerational equity, by finding roots both in moral and religious traditions, is deeply embedded in the history of human civilisation. Historically, for example, some Native Americans have recognised the obligation of present generations to take future generations’ interests into account.Footnote ³⁴ Thus, the “seventh-generation” principle enshrined into the centuries-old oral constitution of the Confederation of the Six Nations of the Iroquois – the Gayanashagowa (or Great Law of Peace) – states that “[w]e … make every decision that we make relate to the welfare and well-being of the seventh generation to come … We consider: will this be to the benefit of the seventh generation?”Footnote ³⁵ In his concurring opinion to the 1997 International Court of Justice case concerning the Gabcikovo-Nagymaros project of locks and dams on the Danube River, Judge Christopher Weeramantry provides an exhaustive account of Indigenous people’s commitment to promoting the welfare of future generations:

Fast forward a few centuries and this principle has long been established and recognised – through a variety of formulations and contexts across geographies. Future generations have been present in constitutions since the early days of constitutionalism in 1789, but their inclusion shifted over time in prevalence, form and substance.Footnote ³⁷ This had also been influenced by the gradual, parallel recognition of future generations’ interests in international law instruments. This started out with the United Nations (UN) Charter in 1945,Footnote ³⁸ followed by the “most pronounced political recognition of the need to consciously and comprehensively protect the needs and interests of future generations”Footnote ³⁹ – that is, the 1997 UN Educational, Scientific and Cultural Organisation (UNESCO) Declaration on the Responsibility of the Present Generations towards Future Generations.Footnote ⁴⁰ Subsequently, upon the invitation of the Rio+ Summit in 2012, the then UN Secretary-General Ban Ki-moon prepared a report – “Intergenerational solidarity and the needs of future generations” – that, by embedding the idea of intergenerational equity into sustainable development, also prompted the UN to devise mechanisms aimed at bringing future generations to the negotiating table.Footnote ⁴¹ Last but not least, the most recent UN Framework Convention on Climate ChangeFootnote ⁴² represents the major international climate change initiative, which has significant ramifications for future generations’ interests.

As a result of this gradual process affecting both national and international spheres, although until the 1970s no more than a dozen constitutions contained such references, today 41% of them do (as of 2021). ^{Footnote 43} This sudden change occurred in the late twentieth century with the advent of new constitutions and growing environmental consciousness within the public. As a result, today a multitude of domestic as well as international sources acknowledge that the actions of present generations can endanger the needs of future generations. Most of these texts require that the interests of future generations should receive attention alongside those of present generations. In most cases, these provisions refer to the environment and natural resources; in some others, they refer to bioethical rights (protection of the human condition). Ultimately, they all deal with future generations as intrinsically related to the concept of sustainability, an all-encompassing principle mediating between economic and environmental (and more recently climate) interests. This gradual recognition marked not only a quantitative but also a qualitative change in constitutional referencing to future people.Footnote ⁴⁴ Rather than being consigned to preambles amidst generic, declaratory language, today’s constitutional references tend to identify future generations as bearers of legal interests.Footnote ⁴⁵

Yet the question of the material effects of both international and domestic recognition of future generations’ interests – be it through reference to the principle of intergenerational equity or to that of sustainable development – remains largely open today.Footnote ⁴⁶

III. Conceptual and methodological challenges in the recognition of future generations’ interests

The formal legal recognition of the need to protect future generations’ interests raises multiple questions, both normative and practical in nature.

The first to arise is: who are these future generations? Addressing this question inevitably entails determining their relation to present people. In other words, where they do begin and where do present generations end? This question can be addressed from multiple perspectives, such as by providing a definition of “future generation” (living versus non-living; human versus non-human), “place” (people residing in a given territory) and “time” (when does the future start?). When it comes to time, the number of individuals changes every time unit and cannot be captured as such. When it comes to place, the question is whether only residents in a given territory should be considered as future generations or also non-residents, thus rendering that concept extraterritorial in relation to a given state.Footnote ⁴⁷ As argued elsewhere,Footnote ⁴⁸ although cost–benefit analysis has been adopted and used with a predominantly domestic focus, this policy tool – due to its inherent rationalistic and welfare-maximising commitment – strives for comprehensiveness and has, by its own nature, a cosmopolitan vocation. It could therefore accommodate – and do justice to – future generations’ interests, even when they stem from outside of the relevant jurisdiction. When it comes to the who constitutes “future generations”, there is an ongoing debate as to whether non-human life and non-human species should be included as well. Moreover, one might expect future technologies – notably biotechnologies – to “create” new creatures, thus complicating matters even further. Yet, despite all of these difficulties, defining the notion of future generations appears to be a prerequisite for the operationalising of any legal recognition of such a concept in contemporary policymaking, hence the attempt to provide working – often competing – definitions.Footnote ⁴⁹

Second, any recognition of future generations’ entitlements stumbles upon the so-called non-existence challenge: that is, the present non-existence of future persons. This offers both a theorical (how are we to confer entitlements or ascribe rights to merely potential people?Footnote ⁵⁰ ) and a practical (who would be able to invoke those entitlements and rights?) conundrum. Although one could argue that there might be present rights that do not have present bearers,Footnote ⁵¹ for any type of right its conferral can only be done if the bearer is able to exercise it. When it comes to future generations, this cannot be guaranteed insofar as exercising such a power presupposes one’s existence. There are at least two ways to overcome these arguments denying the possibility to confer entitlements such as rights to future people. One consists of ascribing rights to present rather than future people (such present rights would then be ascribed to individuals different from those whose interests are at stake). Although this option would guarantee that the interests of future generations would be preserved through successive and overlapping generations, it would not necessarily ensure an alignment between present and future generations’ interests. This is because acting on behalf of future generations would involve exercising these people’s rights without being the holder of the corresponding interests constituting the underlying justification for these rights. Hence, there is a need to explore a second option in order to guarantee the legal recognition of future generations. This consists of conferring future rights to future people. Here, the right-holders coincide with the interest-holders, but – of course – the exercise of such rights presupposes the existence of their bearer.

Third, in the same way as with present generations’ interests, those of future generations also need to be defined.Footnote ⁵² Since, future generations are unable, by definition, to express their preferences in contemporary policymaking, their interests must be constructed.Footnote ⁵³ For them to play a role in contemporary policymaking, a legal fiction needs to be established or future generations must be represented to allow and facilitate their participation (see the paper by Jale Tosun in the present Special Issue).Footnote ⁵⁴ Yet any attempt at identifying future generations’ interests is bound to occur within present people’s perspectives, which raises major ethical questions in itself.Footnote ⁵⁵ But there is more: any procedure aimed at capturing future generations’ interests is bound to face an immanent conflict of interest between present and future generations (inter-generational)Footnote ⁵⁶ as well as those conflicts of interest existing within them (intra-generational).

Fourth, one may wonder about the extent to which future generations (as previously defined together with their interests) can rely on the existing legal regime. This is because the consequences stemming from long-term risks, be they climate change or a volcanic eruption with a global impact, may have the capacity to interfere with an array of rights. These include, but are not limited to, the rights to life and human dignity, to property, to health, to privacy, to water and to food. This begs the question as to whether generations that do not exist yet can have legal rights at all, especially given the non-existence challenge described above. In fact, according to some moral philosophers, the non-existence of future people is no reason not to attribute rights to them. Even assuming that this holds true for legal rights and not only for moral rights, the question also remains as to whether the effects stemming from the manifestation of such long-term risks are sufficient to constitute a violation of human rights today, given the absence of a duty of absolute prevention of such extreme events and their consequences for human health. As will be discussed below, it can be argued, however, that the fact that future generations may be harmed in the future should suffice, and that therefore the state has a duty to take action to do as much as possible to prevent catastrophic effects of inter alia climate change by adopting a strong climate policy to limit the emission of greenhouse gases or by limiting artificial intelligence through governing its use both by the market and the state.

Let us examine the main approaches that were developed over time to operationalise the consideration of future generations’ interests in an attempt at addressing the abovementioned conceptual challenges.

IV. The codification of future generations’ interests from a legal basis

The most common approach to integrating future generations’ interests into contemporary decision-making is through the establishment of duties to do so.Footnote ⁵⁷ It is possible to identify two types of duties, depending on whether they are imposed on individuals or society (often referred to as civic) or on the state. However, out of the eighty-one constitutions referencing future generations, twenty-eight impose duties on the state, whereas only a handful impose civic duties.Footnote ⁵⁸ Yet one might wonder whether duties can make sense without correlating rights.

Hence, an alternative approach to integrating future generations’ interests into contemporary decision-making is through the conferral of rights to future generations and to deriving the legal obligations of present generations from these rights. The philosophical underpinning of such an approach lies with most theories of intergenerational equity.Footnote ⁵⁹ These theories stipulate, in essence, that all generations (past, present and future) have equal needs to use the natural and cultural resources of the Earth. As a result, there is no basis for preferring the present generation over future generations in their use of the planet.

This is the case of Japan’s constitution (since 1946), as well as of Iran’s of 1979, followed by Norway (1992),Footnote ⁶⁰ Malawi (1994) and South Africa (1997), the latter of which being particularly explicit on this point:

As every duty has as a matter of principle a corresponding right, it might be argued that a duty towards future generations could mean that future generations in turn enjoy a right. Conversely, it might be argued that the conferral of a right entails the existence of a corresponding duty. Yet there exist rights whose exercise does not correlate with obligations incumbent on the state, such as the constitutional right to free speech. Ultimately, choosing the language of rights still leaves a wide margin of appreciation in terms of normative content.Footnote ⁶² The truth is that the substantive nature of these multiple provisions integrating the interests of future generations can only be ultimately defined through litigation by courts.

In any event, the gradual constitutional upgrading of future generations references from preambles to their main texts makes them – at least potentially – judicially actionable: that is, allowing these duties and/or rights to be invocable before courts.Footnote ⁶³

This is what occurred in Germany in the Klima-Beschluss judgment by the German Constitutional Court,Footnote ⁶⁴ probably the most far-reaching conclusion ever made in an intergenerational equity case by a court. The German Constitution’s reference to future generations is contained in a provision protecting the environment (Article 20a) that was introduced in 1994. After a lively political and legal debate over whether such a provision should enshrine an individual right to a healthy environment or merely as a state duty, it is the latter that found political support. After being unsuccessfully invoked in the framework of environmental litigation to contest inter alia waste disposal sites, Article 20(a) – the state duty towards future generations – has suddenly been found justiciable by the Constitutional Court in its first climate protection case. The complaints were brought mostly by young people from Germany and applicants from Nepal and Bangladesh, as well as two environmental NGOs, who alleged violations of the right to life and physical integrity (Article 2 paragraph 2), property (Article 14) and an unspecified fundamental right to a dignified future, based on Article 20(a). The Court recognised such a provision as requiring the State to pursue climate protection (well beyond its targets), and it even serves as a basis for a general obligation to decarbonise the economy in line with the Paris Climate Change Agreement. Needless to say, this obligation is tightly connected to the protection of future generations, so that those “who wish to continue preserving these foundations are not forced to engage in radical abstinence”.Footnote ⁶⁵ This judicial decision followed the famous Urgenda rulings in the Netherlands (finally decided by the Dutch Supreme Court in 2019),Footnote ⁶⁶ which established that governments may have a legal duty to prevent dangerous climate change and other long-term risks looming on the horizon. This approach has essentially been confirmed by several other high courts, such as those of Nepal and Colombia.

Ultimately, constitutions have not only increasingly referred to future generations over time but also assigned them stronger protection, typically in the name of the principle of intergenerational equality as stemming from either domestic or international sources or both. As has been noted, the conceptualisation of certain interests – in this case, those of future generations – as rights is meant to give them more weight.Footnote ⁶⁷ Yet the protection of these newly created rights remains largely underdeveloped in terms of both doctrinal elaboration and case law. Thus, despite some courts’ best efforts, the need to balance the rights of present and future generations and the reality of finite resources makes future generations’ interests more aspirational statements than judicially enforceable obligations.

Although it remains too early to assess the effectiveness of future generations’ rights in contemporary constitutionalism, we have seen how – amidst the rapidly spreading climate litigation movement – a growing number of jurisdictions have not hesitated to consider state duties as well as rights justiciable. As illustrated above, the emerging litigation against climate change bases itself upon the mobilisation of future generations’ rights (or mere state duties) and suggests that the recognition of those rights can be consequential in acting against threats to the future of humanity.

When it comes to international law, no binding international instrument exists to grant future generations enforceable rights. Rather, their references to intergenerational equity are generally considered as guiding principles in the interpretation of both international and domestic texts.

After examining the evolution of the recognition of future generations’ interests and their legal operationalisation as well as judicialisation, the next session intends to shed light on the various models (mechanisms and institutions) available to embed future generations’ interests in policymaking.

V. A taxonomy of the mechanisms and institutions for protecting future generations’ interests

Over the last two decades, in an attempt to operationalise the growing number of formal recognitions of future generations’ interests in legal texts, several governments have launched a variety of initiatives. Their establishment has led to some level of experimentation that has sparked a lively literature, notably focusing on the institutions for future generations.Footnote ⁶⁸

Yet future-orientated initiatives come in a variety of forms with different natures, mandates and functions.

No taxonomy of all of these initiatives exists or has even been attempted.Footnote ⁶⁹ By taking as a starting point their common “future-regardingness”, it is possible to organise them according to their actual nature by indicating for each of them their underlying theory of change (or rationale) and the resources required.

First, the most prominent initiatives are institutional in nature. They can entail the establishment of a new, specialised institution – be it an ombudsperson or a commissioner for future generations – or the modification or adaptation of an existing institution – be it through the creation of a specialised second chamber or a parliamentary committee for future generations.Footnote ⁷⁰ Virtually all institutional interventions are meant to change the perspectives of policymakers – be they parliamentarians, public officials or members of government – by confronting them with a future perspective. As such, their newly acquired exposure may induce them to deepen their understanding of the future. These interventions tend to be amongst the more costly as they require not only the setting up of new apparatus – be it within the legislature, executive or outside of government – but also new skillsets that are generally not present in public service.

Second, some other future-orientated reforms are procedural in nature. Contrary to institutional interventions, their contribution to future-making takes place through new mechanisms – not institutions – that, in turn, adapt systems that have not per se been designed to promote far-sightedness. Future-orientated procedural initiatives may, in turn, impact the legislative, electoral and judicial systems. When it comes to the policy process, one may envisage a “future impact assessment” of legislative budgeting processes or, more broadly, participatory future-making processes,Footnote ⁷¹ which either individually or collectively incentivises (or constrains) policymakers by establishing new methods of coordination and collaboration, such as parliamentary committees (see, eg, the article by Vesa Koskimaa and Tapio Raunio in the present Special Issue), and questioning the status quo (see, eg, the article by Marco Almada and that by Sébastien Fassiaux in the present Special Issue). A relevant illustration comes from Portugal, where public authorities self-imposed the integration of an Intergenerational Fairness Framework into policymaking.Footnote ⁷² As for the electoral system, one may consider extending suffrage to children, be it through the lowering of the minimal voting age, proxy votes for parents or storable votesFootnote ⁷³ or more innovative democratic innovations as alternatives to representative democracy such as lottocracy, as epitomised by deliberative citizen participationFootnote ⁷⁴ as well as proxy democracy (see, eg, the article by Manon Revel in the present Special Issue).Footnote ⁷⁵ Finally, the judicial system could also be amended to become more future-sensitive by granting standing to younger and future generations, allowing new forms of vicarious representation (eg granting locus standi to younger members of society or to future generations’ institutions) or simply becoming more responsive to future generations’ demands (see, eg, the article by Till Steinkamp in the present Special Issue).

What these procedural interventions have in common is their expanding of the imaginative capacity of policymakers – and citizens, when involved – by bringing the future into the picture. Thus, for instance, in deliberative citizen participation future generations may be represented by an empty chairFootnote ⁷⁶ or, more conventionally, younger generations. Ultimately, most procedural interventions may also provide a new set of mechanisms to render policymaking accountable to the people. These procedural interventions typically require participation capacity across a number of groups and stakeholders as well as additional funding for operational support. For instance, deliberative citizen participation may require funding to compensate citizens for their time input and experts for facilitation of this participation.

Another category of future-orientated initiative is evaluative in nature, having to do with metrics and other indicators of success. As these standards (notably as they apply to national accounts) dictate how we define success as a society, indicators can be altered to include long-term aspects of societal development. Examples include generational accounting,Footnote ⁷⁷ the ecological footprintFootnote ⁷⁸ or genuine savings accounting.Footnote ⁷⁹ Virtually all of these future generation-sensitive indicators are set to replace short-term ones. Some of them are long-standing, such as Bhutan’s Gross National Happiness Index or Singapore’s Centre for Strategic Futures. In addition, many countries now include well-being measures in national statistical collections. been created to strengthen policy coherence for the implementation of the SDGs. What all of these evaluative interventions have in common is their capacity to alter the motives of policymakers by reframing goals. Their acceptance and operation require relationships of trust and mutual understanding within institutions, departments, units and other actors that would be a part of the process.

The last category of future-orientated initiatives aimed at considering non-obvious stakeholders consists of public policy interventions. The most illustrative example is provided by pension schemes being redesigned to consider intergenerational concerns. Under such interventions, the level of contributions due may be adjusted according to the number of children of the contributor. Similarly, public policy governing insurances regimes, by transferring risk and compensating victims of losses, can also act to prevent or finance losses caused by low-probability, high-impact disasters to the benefit of future generations (see the article by Michael Faure and Qihao He in the present Special Issue). This is equally true, at a broader scale, of policy investments in domains such as financial regulation, public health, climate (see the article by Bas Heerma van Voss in the present Special Issue) and international terrorism (see the article by Zachary Kallenborn and Gary Ackerman in the present Special Issue).

Virtually every paper gathered in the present Special Issue falls under – and contributes to – one (or more) of the models examined above.

VI. Conclusion: how can present people eventually realise their unfulfilled promises to future generations (and do so beyond the environment)?

This article revealed how different the various future-orientated initiatives are – in terms of nature, format and functions. It also identified what they have in common: that is, their individual and collective commitment to expanding the moral relevance of future people. In the same way that humans have expanded their moral circle beyond their family – beyond their immediate social circle and territory to include the whole of humanity, animals as well as the environmentFootnote ⁸⁰ – they now show readiness to acknowledge the moral relevance of future generations. Similarly to what occurred in the expansion of humanity’s moral circle, our governance must adapt as well.

This transformative journey follows a familiar script and includes three main phases.

The first step entails the legal recognition, generally through constitutionalisation, of the new beneficiaries of moral recognition. The second step consists of codifying such a recognition through the design of a legal basis – be it a duty imposed on present people and/or public authorities and/or a right to future generations. The third and last step implies the adoption of one or more of the available future-making models – be they institutional, procedural, evaluative or policy-based in nature, or a combination of those – in order to fully operationalise the recognition of future generations’ interests in contemporary policymaking.

Yet, as of now, none of these approaches – be it through ad hoc future generation institutions (such as a commissioner or ombudsperson), evaluative frameworks (such as generational accounting) or procedural mechanisms (such as intergenerational litigation) – appears able alone to do justice to the societal and legal recognition of future generations’ interests.

Paradoxically, each of these mechanisms and institutions seems to approach the challenge of integrating future generations’ interests through a short-term perspective. These interventions – be they institutional, procedural or evaluative in nature or policy-based – tend to be temporally bound to their context of operation. As such, often being mere tweaks at the margins of existing mechanisms and institutions, they prove incapable of deepening our understanding and consideration of the future. It is no surprise that, despite the almost thirty-year findings of the Brundtland Report and widespread legal codification of future generations’ interests, there has been a continued decline in social equity and environmental quality.Footnote ⁸¹ Nothing could be more self-defeating than this incremental and essentially ineffective approach, as it may fall victim to the same problems it tries to fix. This holds true also for what appears to be the most promising and compelling model for advancing future generations’ interests: that is, the rapidly growing phenomenon of intergenerational litigation, notably around climate litigation. Being reactive in nature, remedial and partial, the impact of intergenerational litigation on overall future-making governance remains limited. Moreover, its sudden advance epitomises how, behind today’s growing efforts towards the integration of future generations’ interests into policymaking, there is one and fundamentally only one concern: that of the most pressing environmental threat of climate change. Yet, as highlighted by a lively literature, societies are today facing the prospect of multiple, often intertwined long-term risks whose policy resolution also requires – with a similar degree of urgency – an inter-temporal approach.Footnote ⁸²

It is against this backdrop that today’s existing initiatives and approaches towards the integration of future generations’ interests into policymaking appear inadequate for generating meaningful change in terms of the ways in which present people envision and craft the future. This can be ascribed to various factors ranging from the scattered, marginal and essentially short-term approach chosen thus far to a lack of demonstrable political will on many levels.

But there is more.

Achieving the inclusion of future generations’ interests in contemporary policymaking requires more than their codification and operationalisation through the establishment of institutions, procedural mechanisms, processes or other institutional tweaks. It also requires a broader, more holistic and proactive approach by all public authorities to create the conditions for all stakeholders to deepen their understanding of the future and act on that new awareness.

Seen from this perspective, both policymakers and courts have failed to recognise that any commitment towards future generations is inherently linked to the principle of equality, notably that of substantive equality. Once we recognise – in line with the dominant theories of intergenerational justice – that all generations (past, present and future) have equal needs to use the natural and cultural resources of the Earth, the principle of equality can and should be extended to future generations. According to a substantive reading of such a principle, efforts should not be limited to the formal recognition of the existence and relevance of future generations’ interests (and sometimes rights). Rather, they must entail the adoption of proactive steps to ensure that future generations have the same opportunities and access to resources as current generations,Footnote ⁸³ and that any inequalities or disparities that may exist are actively addressed and eliminated. This may inevitably entail taking steps to address not only environmental issues but also major social questions – from pensions to healthcare,Footnote ⁸⁴ povertyFootnote ⁸⁵ and, more broadly, public spending and public debt.Footnote ⁸⁶ Although this approach can be detected in the most recent intergenerational litigation, it remains largely limited to the environmental and climate space.

This article argues that a substantive interpretation of the concept of political equality might be a necessary procedural condition for the realisation of future generations’ interests within and across contemporary policymaking. It is submitted that such an understanding of political equality as applied to ongoing efforts at integrating future people in today’s decision-making could unleash a renewed vision of the role that present people and their institutions must play in ensuring the concretisation of the principle of intergenerational equity.

For this “quantum leap” to occur, however, a more holistic approach to policymaking and, more broadly, our democratic operation might be needed. Ultimately, only a “future-making policy mix” of multiple, complementary mechanisms and institutions might prove capable of establishing accountability from one generation to the next, and for this to happen well beyond the environmental sphere, including all social policymaking.

Hence, this article and the entire Special Issue represent a call to nurture a more imaginative theorisation and operationalisation of the recognition of future generations’ interests in contemporary policymaking beyond today’s institutional and conceptual models.