6.1 Introduction

In March 2023, the United Nations General Assembly (UNGA) passed a resolution requesting the International Court of Justice (ICJ) to provide an advisory opinion on states’ international legal obligations in relation to climate change, including their obligations in relation to both current and future generations (UNGA 2023). This resolution was the culmination of a long civil society campaign spearheaded by youth climate justice activists, Vanuatu, and the Pacific Island countries (Wewerinke-Singh & Hinge Salili Reference Wewerinke-Singh and Hinge Salili2020; Pacific Island Students Fighting Climate Change 2024). The inclusion of obligations towards future generations in this mandate reflects, inter alia, the concern of Pacific Island countries about climate change threats – to their lives now, and the lives of their future generations – as well as their capacity to maintain their culture into the future. This chapter assesses the potential for this ICJ advisory opinion to act as an effective proxy for future generations in the climate change context. We offer recommendations on how our proposed normative framework could feed into an ICJ advisory opinion to further international, intragenerational, and intergenerational justice, without undermining the legitimacy of the Court. Whether or not the ICJ advisory opinion is decided in the direction proposed here, the arguments we set out will remain relevant for other climate litigation processes.

This chapter rests on the normative assumptions laid out earlier in this book, including the definition of proxy representation, and assumptions about the role of international law and institutions, including the ICJ. In addition, the legitimacy criteria applicable to international institutions such as the ICJ (Chapter 4) are crucial, given the close link between legitimacy and effectiveness. We introduced the concept of future legitimacy as involving the idea of looking back at decisions to be taken by the ICJ now from the perspective of future generations, including a projected vantage point decades from now, when scientists predict many parts of the world will be increasingly negatively impacted by climate change (Section 4.3.2).

An important part of the context includes the role of ICJ advisory opinions. While such opinions of the ICJ are non-binding, they nevertheless have the potential to influence the direction of international law and are an important part of the international political process. Advisory opinions of the ICJ can feed into national litigation, as well as having an impact in raising awareness and global public opinion (Wewerinke-Singh, Aguon & Hunter Reference Wewerinke-Singh, Aguon, Hunter, Alogna, Bakker and Gauci2021: 404). Even if, from this perspective, an ICJ advisory opinion can be interpreted as a form of representation of future generations, there are also tensions that need to be discussed.

One is the tension between the ICJ’s role of providing clarity to states’ existing international legal obligations, grounded on state consent, and the role of the Court (often unstated) as an agent for further development of international law, to meet the requirements of international, intragenerational, and intergenerational justice. Given there is already an elaborate climate change treaty regime, an advisory opinion that is overly prescriptive in terms of individual states’ obligations would, on the one hand, run the risk of undermining this treaty regime and weakening the legitimacy of the Court (Bodansky Reference Bodansky2017, Reference Bodansky and O’Connor2022, Reference Bodansky2023). On the other hand, an advisory opinion that is overly timid could be seen as missing a valuable opportunity to exert pressure on states to take action on climate change and provide crucial impetus for strengthening the existing treaty regime, in a context where the future of humanity – of which the international legal system is a part – is threatened. This chapter argues that the ICJ Advisory Opinion on Climate Change could further clarify existing international environmental law principles in ways which could strengthen the climate regime by providing greater specificity to states’ international legal obligations.

A further tension running through the discussion in this chapter can be characterised through the differences between inter and intragenerational and national and international (or transnational) justice. As mentioned in Chapter 2 (Section 2.5), the UN climate regime contains evidence of both an international and intergenerational justice framing. The former is embodied in the principle of ‘common but differentiated responsibilities’, which emphasises the duty of the developed countries to take the lead in addressing climate change. But the climate regime also contains evidence of intergenerational justice framings, with references to future generations contained, for example, in the ‘Principles’ section of the United Nations Framework Convention on Climate Change (UNFCCC) (1992), where Article 3 delineates principles to be considered in interpreting the UNFCCC and subsequent agreements, including the Paris Agreement (2015). The ICJ, in its advisory opinion will need to tread carefully in terms of these different dimensions of justice. On the one hand, if the Court overly focuses on obligations towards future generations, this could be perceived by developing states as exhibiting a bias towards the developed countries which have tended in the UN negotiations to emphasise the reduction of greenhouse gas emissions (mitigation), rather than adapting to climate change impacts (adaptation) (Humphreys Reference Humphreys2022: 1067). On the other hand, the intergenerational justice dimension is an explicit part of the question put to the Court and a crucial part of the rationale to address climate change. The normative framing of this book emphasises the importance of all three key axes of justice – intragenerational, intergenerational, and international – with the focus on future generations.

This chapter is structured as follows. First, we explain how the ICJ advisory opinion came about and what it could achieve (Section 6.2). We then address how the proxy representation functions (elaborated in Chapter 3) apply in relation to the ICJ advisory opinion and recall our normative framework of justice, solidarity, and vulnerability (Section 6.3). We then analyse the references to future generations in the mandate of the advisory opinion (Section 6.4). The normative framework is then applied to inform proposals as to how the Court should interpret the principle of harm prevention (Section 6.5), and fallback options, involving an indirect obligation of future generations (Section 6.6). We then examine how the Court could approach the principle of intergenerational equity (Section 6.7); analyse the potential of amicus curiae briefs, and expert witnesses, to act as proxy representatives of future generations (Section 6.8); and assess the advisory opinion in terms of the criteria of legitimacy and effectiveness (Section 6.9); before drawing some conclusions (Section 6.10).

6.2 Origins and Functions of an Advisory Opinion on Climate Change

The United Nations General Assembly resolution establishing the request for an advisory opinion of the ICJ of March 2023 (UNGA 2023) was the culmination of a campaign led by Vanuatu and the Pacific Island countries (Stephens Reference Stephens2020), combined with a civil society campaign (Wewerinke-Singh & Hinge Salili Reference Wewerinke-Singh and Hinge Salili2020: 681 et seq.). This campaign had its origins in an initiative taken by law students at the University of the South Pacific in mid-2019, which became a regional and global campaign (Wewerinke-Singh, Garg & Agarwalla Reference Wewerinke-Singh, Garg and Agarwalla2023: 14; Seneviratne Reference Seneviratne2023). Pacific Island countries were deeply concerned at the failure of the UN climate treaty process to deliver sufficiently strong action. For these countries, climate change constitutes an existential threat, as they face-ever increasing inundation from rising sea levels and more frequent and extreme weather events.Footnote ¹

In terms of a litigation strategy involving the ICJ, an advisory opinion is the most desirable route, as it avoids many of the difficult issues relating to causation and attribution of harm to individual states in the climate change context (Bodansky Reference Bodansky2017; Sands Reference Sands2016: 23 et seq.). Under Article 34(1) of the Statute of the International Court of Justice (ICJ Statute) (1945), the Court limits standing in contentious proceedings to states. While it is possible for states to bring claims on behalf of their citizens and future generations, arguably most states will continue to be reluctant to bring a case against high greenhouse gas emitting states due to concerns about potential negative impacts on their trade and investment – given the powerful fossil fuel-related vested interests in many states (Influence Map 2020). For this reason, an ICJ advisory opinion is seen as the most desirable strategy for states seeking to strengthen action on climate change.

The ICJ Advisory Opinion on Climate Change could perform a range of functions. First, it could increase pressure on states to ratchet up the level of their ambition in their Nationally Determined Contributions (NDCs) under the Paris Agreement (2015) (Bodansky Reference Bodansky2017). Second, it could clarify customary international law principles that may be invoked in many ways in both international and national legal processes. Such clarification could bolster the bargaining power of states vulnerable to climate change in the ongoing international climate negotiations (Wewerinke-Singh & Hinge Salili Reference Wewerinke-Singh and Hinge Salili2020: 688). Finally, it could increase the legitimacy of climate science (Sands Reference Sands2016: 29; see also the contrary view in Bodansky Reference Bodansky2017). In this chapter, we do not address all these functions, but hone in on the issue of how the ICJ advisory opinion could act as vehicle for proxy representation of future generations, assessed in terms of our proposed effectiveness and legitimacy criteria (Chapter 4). This involves the second and third functions listed earlier; namely, clarifying the relevant rules of customary international law, and bolstering the legitimacy of climate science.

6.3 Proxy Representation and Its Normative Implications

As we explained in Chapter 2, proxy representation involves the representation of interests or persons who cannot speak for themselves. Current international institutions and rules manifest bias against the interests of future generations. This bias is evident in the climate change regime, which contains inadequate rules for future generations in terms of their stringency and bindingness. The failure of the Paris Agreement to include an effective enforcement regime, combined with developed countries’ failure to contribute promised climate finance and the weak implementation of individual states’ mitigation commitments (as contained in their NDCs), are further weaknesses (Stankovic, Hovi & Skodvin Reference Stankovic, Hovi and Skodvin2023; Torstad Reference Tørstad2020).

Proxy representation is justified as an expression of the relation between current and future relations. The recognition of this relation and its political implications can be described as intergenerational solidarity. Proxy representation of future generations is justified as a means for addressing bias towards current generations within political and legal institutions, using a yardstick of intergenerational justice defined as requiring, as a minimum, the protection of the human rights of future generations necessary to lead a decent life (see Section 3.4.1). This normative benchmark for intergenerational justice is used as a springboard for further clarifying the international legal principle of intergenerational equity by linking it to human rights obligations (see later). This approach finds resonance in the recent European Court of Human Rights (ECtHR) 2024 decision in Verein Klimaseniorinnen v Switzerland (hereafter, Verein Seniorinnen); central to this decision was the connection between human rights protection and intergenerational justice (Nolan Reference Nolan2024). The Court emphasised that the ‘damaging effects of climate change raise an issue of intergenerational burden sharing’ (Verein Seniorinnen 2024: para 410), noting that ‘future generations are likely to bear an increasingly severe burden of present failures and emissions to combat climate change’ while having ‘no possibility of participating in relevant current decision-making processes’ (para 420). This was used by the Court, together with state’s obligations under the UNFCCC Article 3 obligation to protect the climate system for the benefit of present and future generations (Verein Seniorinnen 2024: para 420), as the basis for deciding that the European Convention on Human Rights (ECHR) (1950) required certain minimal requirements in terms of contracting states’ mitigation efforts (para 520).

Further elements of our normative framework involve the protection of the vulnerable (Section 3.4.3), combined with solidarity principles which emphasise the commonality of interest between current and future generations (Section 3.4.2). Our pragmatist methodology involves pointing out that these normative principles are already embedded in the international legal order in a range of UN instruments and the ECHR (Section 2.4) and formally endorsed by the international community. Given existing proxy-style mechanisms of representation in the international legal order for various vulnerable groups (Chapter 5), the proxy representation of future generations in the climate context is an incremental, rather than a radical, step in the process of international legal reform.

We use Rehfeld’s audience-based concept of proxy representation, in which endorsement by the relevant audience of a proxy is a defining feature (Section 2.2). Proxy representation as a legal concept, as we have seen, involves authorisation by law to take on proxy functions (Section 2.2). We have explained that proxy representation in the international legal context can have a range of functions: representational, compliance, and norm entrepreneurial (Section 2.5). We define representation of future generations as having direct and indirect dimensions. Under this definition, indirect representation includes the situation where an international law rule embodies the interests of future generations (Section 2.4). Thus, the ICJ applying or interpreting a rule of international law which embodies or reflects the interests of future generations would fall within this definition, with the ICJ facilitating a form of proxy representation (Sections 2.4 and 2.5). We have also observed that discourses can capture the interests of future generations. Before applying these concepts to the ICJ advisory opinion, it is important to examine closely the questions put to the Court by the UN General Assembly.

If the ICJ is to facilitate a form of proxy representation, this would require it to recognise the outlined normative implications of representation more strongly than it has to date and to implement them both substantively in decisions and in the development of new mechanisms. In the following discussion, we show which conclusions can be drawn for the ICJ from the three normative heuristics as the basis for representation of future generations.

6.4 The Mandate of the Advisory Opinion and Future Generations

At this point, it is essential to consider with some precision the scope of the mandate for the advisory opinion.Footnote ² The questions put to the ICJ by the UN General Assembly require the Court to determine:

In addition, the ICJ is asked:

Part (a) involves analysis by the Court of the obligations of states to protect the climate system ‘for States and for present and future generations’. One option is for the Court to refuse to answer this question on the grounds that it is too general (Mayer Reference Mayer2023: 48, 58, 78). However, refusing to answer this part of the question would undermine the Court’s legitimacy. Furthermore, this question does not require assessment of states’ obligations directly towards future generations. And the way in which the question is framed also indicates that the interests of future generations, as well as people currently living, should be factored into the analysis of states’ obligations in relation to protection of the climate system.

At first blush, the wording of part (a) of the mandate seems to break away from an anthropocentric approach, by asking the Court to examine states’ obligations to ensure protection of the climate system. These obligations are to be assessed in terms of protecting this system for ‘present and future generations’ – which has an anthropocentric flavour, implying that it is the benefit of the climate system for present and future generations – presumably ‘of human beings’ – which is to be the benchmark. Given the dependency of human beings on a functioning climatic system, however, this distinction might, in fact, be less significant than it appears at first glance.

Part (b)(ii) requests the Court to assess ‘the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment with respect to’, inter alia, ‘Peoples and individuals of the present and future generations affected by the adverse effects of climate change’. This requires the Court to consider what secondary obligations flow from states breaching their due diligence duty to avoid causing significant harm to the climate system, including to both ‘[p]eoples and individuals of the present and future generations affected by the adverse effects of climate change’ (emphasis added). These secondary obligations could include, for example, obligations of restitution, including compensation (Dupuy & Viñuales Reference Dupuy and Viñuales2018: 315–17).

As there is no definition of ‘future generations’ in the UN General Assembly’s request, it will be interesting to see whether the Court defines this concept. The Court could avoid defining future generations. This may have some appeal from a pragmatic perspective, given the issue’s complexityFootnote ³ (and see later). But not defining future generations would entail the court failing to accord sufficient weight to this part of the mandate, including Part (b). For the sake of clarity, it would be helpful if the Court defined ‘future generations’ as ‘all persons born in the future, globally’. This would have the distinct advantage of keeping this concept separate from a more expansive definition which also includes younger persons alive now. As noted in the Introduction to this book (Section 2.1), young persons and future generations have overlapping, but not necessarily the same, interests. Defining future generations as persons born in the future carries the risk that young people alive now (who presently cannot vote) could end up at a representational disadvantage vis-à-vis future generations, if the latter were to benefit from representational institutions that exclude young people alive now. However, young people alive now are already clearly defined as children by the United Nations Convention on the Rights of the Child (CRC) (1989: art 1). It would be helpful to keep these categories distinct; therefore, considerations of legal certainty point in favour of the narrower definition of future generations as persons born in the future. The European Court of Human Rights (ECtHR) in its decision in Verein Klimaseniorinnen (2024: para 419) designated future generations as people born in the future, rather than including existing rights holders, such as children (Nolan Reference Nolan2024).

The proposed definition of future generations could nevertheless give rise to some thorny issues. One concern is that this category is too vague because the composition of this group is constantly changing, with persons born every second (Humphreys Reference Humphreys2022: 1066). Yet, other international legal concepts such as ‘children’ also include constantly changing members (CRC 1989: art. 1). A further concern is that the ICJ, by defining future generations as ‘persons born in the future’, would necessarily imply that they possess human rights, which is impossible if they are not yet born. The Court could, however, avoid this issue by focusing on the duties of states to take preventive action to ensure protection of the human rights of future generations upon being born. This would reflect the insight that the acquisition of human rights by persons upon being born is sufficient to ground normative duties towards future generations (Vanderheiden Reference Vanderheiden2008: 137).

In answering these questions, the Court will need to assess the substance of international legal rules applicable in the climate context. To the extent that these rules embody the interests of future generations, they may constitute a form of indirect proxy representation of future generations within the definition we use in this book. To the extent that these rules fail to ensure that future generations will be able to enjoy the human rights necessary for a decent life (our touchstone for intergenerational justice), the Court should use the normative framing set out in this book – including the concept of intergenerational justice – as a guide for interpreting and further developing the rules of international law to meet this objective. The Court in this scenario would be acting as a vehicle for proxy representation of future generations. More specifically, this would entail the Court taking on a proxy representative norm entrepreneurial role in promoting the rules necessary to meet this yardstick. Importantly, however, there are legitimacy constraints in the Court taking on this role, which we discuss later.

To the extent that the existing international legal rules applicable to climate change meet the requirements of intergenerational justice, the Court may play a proxy compliance function in that its advisory opinion, while strictly non-binding, can provide the basis for increased pressure on states to meet their relevant international legal obligations.

A further possibility is that the Court itself may purport to act as a proxy or guardian for future generations. Justice Weeramantry has argued for this in several ICJ judgements, including in the 1974 Nuclear Tests case (ICJ 1974: 341). This proposal, however, faces the difficulty that it involves the Court taking on a role which is not specified either in its Statute or in the treaties it is applying. Reflecting this reality, the other judges of the ICJ have not taken up Justice Weeramantry’s approach – with the exception of Justice Cançado Trindade in the 2014 Whaling in Antarctica (hereafter Whaling case), who came close to this view in urging the Court, in his Separate Opinion, to pronounce ‘upon a system of collective regulation of the environment for the benefit of future generations’ (Whaling case 2024: 381), noting the embodiment of intergenerational equity in a raft of international environmental treaties (140–44). Before considering further how the ICJ can utilise the concept of proxy representation, we turn to apply the normative framework set out above to the principle of harm prevention.

6.5 Normative Evaluation of the Principle of Harm Prevention

The UNGA resolution establishing the advisory opinion makes specific reference to ‘the duty of due diligence’ and ‘the principle of prevention of significant harm to the environment’ (UNGA 2023: chapeau and first operative paragraph), requiring the Court to examine states’ international legal obligations to prevent harm to the global climate system, with reference to the impact this has on future generations (UNGA 2023: first operative paragraph).Footnote ⁴

The principle of harm prevention is a rule of customary international law, according to which states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. The principle has been affirmed by the ICJ as part of customary international law in the 1996 Legality of Nuclear Weapons case and the 1997 Gabčíkovo-Nagymaros Project case (para 140).Footnote ⁵ The International Law of the Sea Tribunal (ITLOS) in its 2024 Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law (ITLOS Advisory Opinion on Climate Change) highlighted that Article 192 of the UN Convention on the Law of the Sea (UNCLOS) (1992) reflected the customary international law principle of harm prevention, entailing a due diligence obligation on states applicable to marine pollution caused by anthropogenic greenhouse gas emissions (ITLOS Advisory Opinion on Climate Change 2024: para 250).Footnote ⁶

Currently, there is uncertainty as to whether the principle of harm prevention involves an obligation of due diligence or is, rather, a rule of result.Footnote ⁷ The latter approach would foreclose application of the principle of harm prevention in relation to foreseeable harm likely to occur to future generations resulting from climate change, as proof of harm to future generations prior to its actually occurring could never be brought to a tribunal. The normative principles of this book could be invoked to argue that the ICJ should come down on the side of the ‘due diligence’ interpretation of the principle of harm prevention. Given conflicting authorities in this area and the duty of the Court to promote justice – extending to intergenerational justice – the Court should conclude that the principle of harm prevention establishes obligations on states in the climate change context to prevent foreseeable harm to future generations. This would be supported by the elements of the normative framework involving: (i) giving equal weight to current and future generations and (ii) the intergenerational justice requirement that future generations enjoy the human rights necessary to lead a decent life. Limiting the harm avoidance principle to cases where damage has already occurred – thus entailing the exclusion of future generations’ interests – would run counter to these elements of the normative framework. This interpretation of the harm avoidance principle would also be consistent with an emphasis on the duty of states to proactively prevent damage to the environment and with the UN General Assembly resolution establishing the advisory opinion, which, as noted earlier, refers to the ‘principle of prevention of significant harm to the environment’ (UNGA 2023: first operative paragraph).

In this section, we make proposals as to how the ICJ could, in its advisory opinion, clarify the principle of harm prevention in the climate context in ways based on the normative principles outlined in this book. First, we argue that the principle is a rule of due diligence rather than a rule of result. Second, we argue that the scope of the principle of harm prevention should be extended to include harm to future generations. Third, we argue that the prevention of harm principle in the climate change context should be interpreted as requiring a threshold of harm linked to certain elements of the Paris Agreement (2015). In each of these arguments, the traditional sources of international law applied by the ICJ are applied in conjunction with the normative principles of this book. Before turning to these various elements, we introduce the principle of harm prevention.

An advisory opinion could also helpfully clarify that the principle of harm prevention extends to imposing an obligation on states to prevent foreseeable harm to future generations. Support for this conclusion can be found in three key sources. First, the Court could build on some of its previous pronouncements on sustainable development. Second, the Court could rely on the principle of intergenerational equity. Third, various elements of the normative framework set out in this book could be relied upon as entailing a duty on states to avoid harm to the human rights of future generations (Lawrence & Köhler Reference Lawrence and Köhler2018). Fourth, extension to future generations could also be grounded on the idea that this is a vital interest which the international community needs to protect. The ‘future generations’ referred to here would comprise the ‘future generations of all states’, reflecting the scientific reality that the harms caused by a failure to mitigate greenhouse gas emissions occur globally.

First, extension of the principle of prevention to include harm to future generations could be based on the ICJ’s recognition of the principles of sustainable development and intergenerational equity.Footnote ⁸ The ICJ in the 1997 Gabčíkovo-Nagymaros case considered a dispute between Hungary and Slovakia relating to the construction of a hydroelectric facility by Hungary which impacted the environment of downstream Slovakia (Gabčíkovo-Nagymaros Project ICJ 1997). The majority judgement referred to ‘new scientific insights and to a growing awareness of the risks for humankind – for present and future generations – of pursuit of interventions in nature’ (Gabčíkovo-Nagymaros Project ICJ 1997: para 140). The judgement went on to recognise the development of ‘new norms’ which need ‘to be taken into consideration … not only when states contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development’ (ICJ 1997: para 140). While the passage leaves unclear whether these new norms are binding, the sustainable development principle was integral to the Court’s order instructing the parties to negotiate a solution to the volume of water issue, balancing environmental and economic considerations (ICJ 1997: para 140).

Justice Cançado Trindade, in his strong dissent in the 2010 ICJ Pulp Mills case, concludes that intergenerational equity ‘forms part of conventional wisdom of International Environmental Law’ reflected in numerous treaties (Pulp Mills Case ICJ 2010: para 122) and that sustainable development is a general principle of international environmental law (para 183). He describes the principle of intergenerational equity as being linked to a concept of conservation involving a cultural manifestation of the integration of human beings with nature, in turn, linked to an obligation to other generations past and future (Pulp Mills Case ICJ 2010: para 114). Justice Cançado Trindade links the preventive character of environmental protection to other areas of international law including human rights, which he notes extend obligations into the future to ‘potential or prospective victims’ (ICJ 2010: para 116). The integration of the due diligence harm prevention principle with human rights benchmarks argued for in this chapter (see later) fits well with this approach.

First, Justice Cançado Trindade emphasises ‘solidarity in time’ between current and future generations as manifest in a number of decisions of the Inter-American Court of Human Rights (IACtHR)Footnote ⁹ which gave effect to the particular relationship of Indigenous people to their land, which includes a spiritual element essential for transmitting their cultural legacy to future generations (ICJ 2010: paras 128–31). This resonates with the solidarity element of the normative framework of this book.

Second, it could be argued that the principle of harm prevention must, in the climate context, be interpreted consistently with the principle of intergenerational equity, which should be interpreted by the ICJ as requiring states to take mitigation action to ensure that future generations enjoy human rights necessary to lead a decent life (see Section 6.7.3). The principle of intergenerational equity is a vital element of the principle of sustainable development which, as we have seen, has been recognised by the ICJ, and is also integrated into the UN climate regime (see Section 6.7). Indeed, extension of the principle of harm prevention to include an obligation to avoid harm to future generations could be seen as required by sustainable development. While sustainable development and intergenerational equity are indeterminate concepts in terms of specifying the exact weight to be accorded to future vis-à-vis current generations, excluding harm occurring to future generations entirely from the scope of the harm prevention rule would conflict with any minimal content of intergenerational equity.

Third, elements of the normative framework set out in this book would also support an extension of the principle of harm prevention to future generations. Extension of the principle of harm prevention to future generations could be seen as a vital expression of intergenerational solidarity and flowing from a recognition of the vulnerability of future generations. In addition, intergenerational justice grounded on a concept of equality – with the interests of future generations being given equal consideration to the interests of contemporaries. Excluding harm to future generations from the scope of the principle of harm prevention would cut across this normative requirement. Intergenerational justice is defined as entailing an obligation to ensure that future generations enjoy the human rights necessary to lead a decent life. Extension of the principle of harm prevention to future generations is required by this concept of intergenerational justice as, absent such an extension, international law would be permitting harm to occur to future generations.

Fourth, extension of the principle of harm prevention to future generations could be grounded on the idea that the interests of future generations are vital interests which the international legal order needs to protect. This is recognised in the UN General Assembly resolution establishing the mandate for the advisory opinion, which states that ‘climate change is an unprecedented challenge of civilisational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it’ (UNGA 2023). This resolution, adopted by consensus, but strictly non-binding, would provide a basis for the Court to interpret the principles of international environmental law in a progressive manner which gives sufficient weight to the interests of future generations. Just as the principle of harm prevention was extended by the ICJ to include harm to areas outside national jurisdiction and the global commons, reflecting the value of the environment of these areas to the entire international community, extension of the principle of harm prevention to protect all future generations reflects an equally important value.

While, to date, the ICJ has not had the opportunity to proclaim in the climate change context on erga omnes based obligations owed to the whole international community (Tams Reference Tams2005), the approach argued for here would mesh well with a step in this direction (Bodansky, Brunnée & Rajamani Reference Bodansky, Brunnée and Rajamani2017: 51). The International Law Commission (ILC) has previously suggested that not preventing massive environmental harm to areas beyond national jurisdiction could constitute breach of erga omnes obligations, while in its recent reports relating to international law applicable to climate change, states pushed back against a suggestion that there were international legal obligations owed erga omnes in relation to the global atmosphere (United Nations Department for General Assembly and Conference Management 2021: 31). It has been pointed out that human beings’ enjoyment of the right to life is dependent on preservation of the global climate system; it would therefore make sense for the ICJ to pronounce that preservation of the global climate system is an obligation owed erga omnes to the international community as a whole, given the crucial importance of this to the international community as a whole (Duvic-Paoli & Gervasi Reference Duvic-Paoli and Gervasi2022: 232). The ICJ could, in making such a pronouncement, rely on various elements of the global climate regime, including the reference in the UNFCCC Preamble to ‘change in the Earth’s climate and its adverse effects are common concern of humankind’ (UNFCCC 1992: first preambular paragraph).

Defining future generations as ‘all persons born in the future globally’, when combined with an extension of the principle of harm prevention in the climate context to include a responsibility on each state to avoid harm to the future generations of all states, would have complex ramifications.Footnote ¹⁰ One troubling ramification could be that this would entail placing responsibility on developing countries to prevent harm to the future generations of developed countries.

To address this concern, the Court could, first, clarify that, in the context of climate change, the principle of harm prevention needs to be interpreted in a manner which considers the principle of ‘common but differentiated responsibilities’ contained in the global climate regime (Rajamani Reference Rajamani2016). As already mentioned, the interpretation of this principle is contentious, also within the philosophical discourse (Edenhofer et al. Reference Edenhofer, Wallacher, Lotze-Campen, Reder, Knopf and Müller2012: 312ff.). However, the Court could avoid this controversy by specifying that the principle of harm prevention in the climate change context must be interpreted with reference to both responsibility for climate emissions and capacity.

Second, the Court could point out that the principle of harm prevention has always entailed a due diligence duty on a state to take reasonable measures to prevent harm, considering its capacity, rather than a duty (of result) to stop any harm occurring (ILC 2001: 155). Third, given that the sources of greenhouse gas emissions in any one state contribute (in varying proportions) to climate change globally, it makes no sense to limit the principle of harm prevention to harm to the future generations of citizens of a particular state bearing that responsibility. Such an interpretation would be consistent with recent jurisprudence indicating that states’ obligations in relation to the protection of human rights extend extraterritorially to include climate-related harms on citizens in other states, where there was a causal link to the harm and activities within the control of the source state.Footnote ¹¹ It would also mesh with the justice framework, with the principle of harm prevention modified to maximise both intragenerational and intergenerational justice. While each state would be responsible for its share of emissions, this would still leave thorny issues of attribution and causation (Nedeski, Sparks & Hernandez Reference Nedeski, Sparks and Hernández2023: 312, 324–25).

The principle of harm prevention is vague in terms of the substantive threshold required to be met; the ICJ could make a distinctive contribution by clarifying this in the climate context. The advisory opinion could clarify the threshold of the principle of harm prevention in the climate context by drawing on certain elements of the Paris Agreement (2015) in a manner which supplemented, and did not undermine, the UN climate regime.

As Bodansky (Reference Bodansky2017: 20) argues, the ICJ could helpfully elaborate obligations of states ‘to ensure that their greenhouse gas emissions do not cause serious damage to other states’, which could exert pressure on countries to improve their implementation of the Paris Agreement in line with the effectiveness criteria set out above.

Indeed, the Court could go even further by deciding that due diligence in the climate change context entailed an obligation on each state to put in place:

The connection to the principle of harm prevention entailed in this obligation is that, without these targets and supporting measures, each state is arguably not taking action to meet its responsibility to prevent harm to the environment of other states or in areas of national jurisdiction ‘for present and future generations’ (para (a) mandate) but is complicit in such harm.Footnote ¹³

The proposal sketched above would find justification in the normative framework set out in this book, in that, absent the benchmark specifying the content of the due diligence obligation, the interests of future generations would be negatively impacted by continuing greenhouse gas emissions. This would violate the equality principle which underpins intergenerational justice, as it would entail future generations being ascribed less value than people currently living, and would also be contrary to the principle of intergenerational solidarity (Section 3.4.2).

By referring to the ‘principle of common but differentiated responsibilities’ and both ‘historic emissions’ and ‘capacity’, the ICJ would recognise the greater responsibility of developed states to take action on climate change, while avoiding taking sides in the ongoing conflict between developing countries, on the one hand, who emphasise historic emissions as the basis for the responsibility of developed countries to take the lead in reducing emissions, and, on the other hand, the US and many developed countries, which argue that mitigation and adaptation action more appropriately should rest on the ‘capacity to pay principle’ (Vanderheiden Reference Vanderheiden2008: 184; Shams Reference Shams2023). Put simply, the ICJ would need to retain the ambiguous concept of ‘differentiation’ in the Paris Agreement.

A further concern is that the principle of harm prevention interpreted in this manner would be problematic from a developing country perspective: it would mean that developing countries owed duties to their own future generations that arise from impacts to which they have contributed very little. However, the proposal above makes clear that responsibility is proportionate to the state’s historic emissions and capacity.Footnote ¹⁴

The approach suggested here could be opposed on the basis that the climate regime is a lex specialis and therefore takes priority over more general customary international law obligations (Zahar Reference Zahar2014: 230). However, there is no inconsistency between the general customary international law obligations referred to above and the provisions of the Paris Agreement (Duvic-Paoli & Gervasi Reference Duvic-Paoli and Gervasi2022: 229).

Nevertheless, the ICJ could have concerns that extending the prevention of harm principle to include an obligation to future generations would be beyond the scope of the Court’s mandate. It is to this issue that we now turn.Footnote ¹⁵

6.6 Fallback Options: An Indirect Obligation to Future Generations

The extension of the principle of harm prevention to include a duty to prevent harm to future generations could be argued to be beyond the scope of the advisory opinion mandate because, as pointed out above, the Court is not being asked whether states have a direct obligation to future generations. While the extension would be in the spirit of the mandate, critics might point out that the General Assembly could have specifically asked – if that was its intention – what obligations under international law were owed to future generations.

To address this concern, some fallback options might prove attractive to the Court. One such option would be to specify the duty of states to protect the climate system with reference to a threshold defined in terms of potential harm to future generations. Thus, the ICJ could specify that states must put in place laws and policies sufficient to ensure protection of the climate system and other parts of the environment at a level which ensures that current and future generations, who rely on this climate system, can enjoy human rights to lead a decent life. This would be consistent with the mandate and would avoid the Court examining whether states have a direct obligation towards future generations. However, this approach would still require the Court to define the threshold, which would inevitably lead us back into the complex definitional issues set out above.

In summary, the normative framework would provide a basis for the ICJ interpreting the principle of harm prevention as a rule of due diligence, extending to harm to future generations, and entailing certain substantive obligations on each state of sufficient stringency to ensure that it takes action to ensure that the overarching 1.5°C/2°C Paris Agreement target is met, in line with its historic responsibility/capacity and the principle of common but differentiated responsibility.

A further important principle of international environmental law which the Court will have to consider in its decision is the principle of intergenerational equity, to which we now turn.

6.7 Intergenerational Equity

6.8 Proxy Representation and Procedural Reform: NGO/Expert Amicus Briefs

Implementing proxy representation could provide a vital mechanism to maximise the likelihood of the ICJ interpreting the international law rules to meet the criteria of justice (including intergenerational justice), democratic legitimacy, and effectiveness. This would involve the ICJ interpreting its procedural rules in a way that facilitates proxy representation of future generations.

Proxy representation involves representation of interests or persons who cannot speak for themselves (Lawrence & Köhler Reference Lawrence and Köhler2018: 654). We have seen that international climate law is seriously biased against the interests of future generations (see Introduction). Proxy representation is justified as a means for redressing this bias; it is also justified as increasing the likelihood of attaining intergenerational justice (Lawrence Reference Lawrence2022: 558–61). Proxy representation can also be justified by democratic values which have been accepted by consensus globally in a range of UN instruments endorsed by the international community (see Section 3.2). As we have pointed out (Section 2.3), representation of future generations may be direct or indirect: ‘direct representation’ occurs where a representative explicitly claims to act on behalf of future generations; ‘indirect representation’ occurs where the representative does not purport to act on behalf of future generations but, rather, highlights their interests (Lawrence Reference Lawrence2022: 553). While not expressed in the language of proxy representation, the ECtHR decision in Verein Seniorinnen (2024: para 489) to allow standing to particular associations purporting to represent vulnerable groups – on the basis that, even in democracies, these groups do not have a voice – was underpinned by democratic values similar to those argued for here, with the Court explicitly noting the representational disadvantage of future generations (Verein Seniorinnen 2024: para 484; Letsas Reference Letsas2024).

How do these abstract concepts map onto the advisory opinion? One option is that the Court itself purports to act as a proxy or guardian for future generations. Justice Weeramantry has argued for this in several ICJ judgements, including in the Nuclear Tests Case (ICJ 1974: 341). However, as mentioned earlier, this proposal faces the difficulty that it involves the Court taking on a role which is not specified either in the ICJ Statute or in the treaties it is applying. Reflecting this reality, other judges of the ICJ have not taken up this approach (with, as with have seen, the exception of Justice Cançado Trindade, who came close to this view in the Whaling Case).

A further possibility is that the ICJ acts to facilitate such representation. This would mean that the ICJ interprets its Statute and Rules of Procedure in a manner which allows submissions by states, intergovernmental organisations (IGOs), non-governmental organisations (NGOs) and/or scientists on behalf of future generations, or to highlight their interests. By facilitating proxy representation, the Court could help increase the likelihood that, in its substantive decisions, it reflects the requirements of justice (including intergenerational justice), democratic legitimacy, and effectiveness. This is because proxy representation involves factoring in the distinctive interests of future generations.

One possibility for such submissions is amicus curiae briefs, which are a vehicle for advocacy in the public interest, allowing legal arguments to be aired that would otherwise not be heard (Chinkin & Mackenzie Reference Chinkin, Mackenzie, Boisson de Chazoures, Romano and Mackenzie2002: 136). While the ICJ Statute does not make any specific provision for amicus briefs, Article 66 provides that, when a request for an advisory opinion is received, the Court shall notify, in addition to states entitled to appear before it, any ‘international organisation … considered by the Court as likely able to furnish information on the question [being considered]’ and that such organisation is entitled to make both oral and written statements (ICJ Statute: art 66(2)). To date, this has been interpreted narrowly by the Court to allow IGOs to make submissions but to exclude NGOs amicus briefs in advisory proceedings of the ICJ (Sands & Mackenzie Reference Sands and Mackenzie2008: para 9). Continuing its established practice, the ICJ has generally only permitted states and IGOs (such as the World Meteorological Organisation) to make submissions in the advisory opinion process, although the IUCN (World Conservation Union) World Commission on Environmental Law, which brings together governments and civil society, has been allowed to make a submission.Footnote ²¹ Pursuant to the established practice of the Court, where NGOs make submissions, these will be placed in the library of the Peace Palace and made available for any state, intergovernmental organisational, or judge to consult, but will not form part of the official record of the case (Shelton Reference Shelton2007: 152).

There are strong reasons why the ICJ should reverse its narrow interpretation of Article 66 of its Statute. First, this provision was based on a similar provision in the predecessor court – the Permanent Court of International Justice (PCIJ), and ‘Advisory proceedings of the PCIJ support the view that the reference to “international organisations” was intended to include non-governmental organisations’ (Shelton Reference Shelton2007: 146).Footnote ²² Various elements of the normative framework of this book provide further grounds for an interpretation of Article 66 of the ICJ Statute to allow NGOs to submit amicus briefs on behalf of future generations in the advisory opinion. One such element is the value of promoting intergenerational justice through facilitating the representation of future generations by proxies, given that future generations will be affected by the advisory opinion. In addition, such proxy representation can highlight the distinctive interests of future generations and help ensure democratic legitimacy in the process.

Could a move in this direction backfire by enabling fossil fuel industry lobby groups to become involved in a way which undermined potential progress? The UN climate negotiations have in place workable mechanisms for regulating NGO and industry association input (Streck Reference Streck, Barnes and Long2021), which the ICJ could use as a model. A further practical option would be for the Court to limit submissions to NGOs possessing consultative status at the United Nations (Shelton Reference Shelton2007: 149).

A further option would be for the ICJ to use Article 50 of its Statute, which empowers the Court to entrust any organisation it may select ‘with the task of carrying out an enquiry or giving an expert opinion’ – this could be interpreted as allowing the Court to request an amicus brief from a particular NGO possessing relevant expertise (Shelton Reference Shelton2007: 151). States will no doubt be submitting scientific evidence as part of their submissions, as well as including scientists as part of their teams making oral submissions. In addition, the Court could rely on Article 50 to itself call on scientific or legal experts to provide evidence related to the case. Scientific experts making input to the case through one of these routes – to the extent that they are highlighting the impacts of climate change on future generations – could be considered proxy representatives of future generations, within the definition of indirect representation (Section 2.3). This could provide a crucial vehicle for ensuring that the court is sensitised to the distinctive interests of future generations.

The extent to which this would be effective is interconnected with the question of legitimacy; we now turn to these issues.

6.9 Legitimacy and Effectiveness

As we have already observed, the legitimacy of an international tribunal in a general sense is based on state consent to the treaty which establishes it (Section 4.2.2). Thus, at a general level the legitimacy of an ICJ advisory opinion rests on state consent to the UN General Assembly resolution establishing the mandate of the advisory opinion (Bodansky Reference Bodansky2023: 186). Article 38 of the ICJ Statute requires the Court to apply international law. However, it is well recognised that, in practice, the Court’s role goes well beyond this, by playing a role in clarifying such rules when they are unclear, and even further developing rules of international law (Section 4.2.2). We argue that, where the Court takes on this role, it should do so through pursuing an overarching objective of promoting justice and, by extension, intergenerational justice – interpreted to mean that, regardless of when and where people are born, they are entitled to enjoy the human rights necessary to lead a decent life.

We further argued (Section 4.2.2) that international tribunals, including the ICJ, ought to be democratically legitimate and that this can help bolster their effectiveness. Democratic legitimacy was defined, following Bogdandy and Venzke (Reference Bogdandy and Venzke2014), as the Court: (i) acting on behalf of the demos extended to include both current and future generations; (ii) ensuring impartiality and independence in terms of procedural fairness in relation to court processes; and (iii) responsiveness to the demos involving transparency, deliberation, and participation, including involvement of affected individuals in court processes.

Of course, while future generations cannot be directly involved in ICJ processes, they can be indirectly involved through the Court factoring in their interests when interpreting or further developing particular rules. In addition, proxy representation through expert and amicus curiae brief processes is possible (see above). The ECtHR in Verein Seniorinnen (2024) recognised that the obstacles faced by marginalised groups (elderly people, children, and future generations) in influencing climate-related decision-making in a democracy provided a strong rationale for the Court to allow associations, subject to certain conditions, to represent these interests in court processes (para 554) and relaxing somewhat the victim requirement for a plaintiff to demonstrate that their individual human rights have been violated (paras 499, 502). While not couched in the language of proxy representation, this approach is, in substance, strikingly similar to the approach we argue for here.

We also introduced the concept of future legitimacy, which involves looking at an ICJ decision from the vantage point of future generations to see how it would be potentially responsive to the demos alive in the future. To have future legitimacy, an advisory opinion, needs to be considered from a vantage point decades from now, at a time when climate scientists predict that many parts of the Earth will be significantly and negatively impacted by climate change. Only through such an extension of legitimacy into the future can we capture the existential threat climate change poses to humanity – including the entire international community and its institutions. Legitimacy involves meeting the requirements of international and intra-generational justice, as well as intergenerational justice.

In considering the legitimacy of an ICJ advisory opinion, it is important to recognise that state consent remains a constraint. If the ICJ pushes too far in developing rules of international law in a manner which states perceive as exceeding its mandate, this will undermine its legitimacy. However, developing rules of international law by the Court, within certain constraints, is nevertheless possible and desirable.

Legitimacy is linked to effectiveness, which we define (Section 4.4) in terms of the Paris Agreement 1.5°/2°C targets, as well as the adaptation, climate resilience and sustainability, and finance elements set out in Article 2 of the Paris Agreement (2015). We assess the potential effectiveness of an advisory opinion against this yardstick.

While future generations cannot participate directly in ICJ processes, their interests can, nonetheless, can be factored into an ICJ advisory opinion by the Court interpreting relevant applicable rules in a manner which includes the interests of both people currently living and future generations. The interpretation of the principle of intergenerational equity in the climate context argued for above would help bolster the Court’s legitimacy. Giving the principle of intergenerational equity more substance and normative bite would meet the requirements of both traditional and future legitimacy. This, in turn, would enhance the likelihood of the ICJ advisory opinion being effective in terms of increasing the likely attainment of the Paris Agreement 1.5°C /2°C target, as well as its resilience and adaptation goals. While it must be recognised that the ICJ’s functions, as set out in its Statute, do not include addressing climate change in these terms, the role of the Court at a general level, as argued earlier, is to interpret international law rules in a manner which furthers justice, including intergenerational justice. To the extent that the Court succeeds or fails in this respect, it must be recognised that it is constrained by the quality (or lack of quality) of the rules of international law which it is interpreting.

We have seen in this chapter that the normative framework set out earlier in this book would provide a strong basis for an extension of the ‘principle of harm prevention’ rule to establish an obligation on states in the climate context to prevent harm to future generations. Such an approach could be criticised on the basis that it involves excessive judicial activism that undermines the legitimacy of the Court. In response, however, it could be pointed out that the ICJ has already shown a willingness to extend the principle of harm prevention by deciding in the Legality of Nuclear Weapons Advisory Opinion (ICJ 1996: 242) that the rule extends to environmental harm occurring outside areas of national jurisdiction.Footnote ²³

The effectiveness of an ICJ advisory opinion on climate change is difficult to judge, particularly given that advisory opinions are non-binding. However, ICJ advisory opinions are authoritative and capable of transforming international law and impacting behaviour at the grassroots level by being taken up by national courts or incorporated into national legislation. As we pointed out in Chapter 4, equity or fairness is an integral element of the climate regime; therefore, by implementing a concept of justice – extended to include intergenerational justice – the ICJ will enhance its legitimacy and, in turn, the effectiveness of an ICJ advisory opinion on climate change.

In this chapter, we have argued that the ICJ should take a reforming role in further fleshing out the principle of intergenerational equity. Whether this will filter through to behavioural change – in the form of modified state action (and action at the substate and nonstate level) and, in turn, a strengthening of the global climate regime – will depend on a whole range of political-economic factors that are difficult to predict. One of the uncertainties is the extent to which, over the coming years, young people (whose interests overlap with future generations) can use political activism to increase pressure on governments to take stronger action on climate change. This group is likely to welcome an ICJ advisory opinion that gives more substance to the principle of intergenerational equity.

6.10 Conclusion

The ICJ, in approaching its Advisory Opinion on Climate Change, faces several tensions. If the Court is overly tentative, it could miss an invaluable opportunity to further clarify important principles of international environmental law which could strengthen the global climate regime. On the other hand, if the Court goes too far in pushing reform, it may suffer in terms of legitimacy – and thereby effectiveness – in pronouncing that particular rules of international law exist where there is no basis in state consent for this.

We have argued that the ICJ should apply the normative framework proposed in this book to: (i) interpret the principle of harm prevention as a rule of due diligence, extending to future generations and entailing a threshold informed by elements of the Paris Agreement; (ii) give substance and bite to the principle of intergenerational equity by defining it in terms of requiring states to take climate action sufficient to ensure protection of the human rights of future generations necessary for them to lead a decent life; and (iii) interpret the Court’s rules of procedure to allow NGOs to make submissions on behalf of future generations and call scientific experts to inform the Court’s decision by highlighting the distinctive interests of future generations.

Crucial benefits would follow from taking these steps, including increased pressure on states to strengthen their NDCs; positive flow-on into national climate litigation – which, in turn, can positively interact with the international legal regime; and important ammunition for civil society pressure on governments to raise their levels of ambition on climate mitigation and adaptation efforts.

By taking the steps we advocate here, the ICJ would indirectly facilitate the proxy representation of future generations consistent with the role of the Court in promoting justice. This would also be consistent with the criteria of democratic legitimacy and future legitimacy which, as we have seen, include extending the demos to encompass future generations who will be impacted by international law-making occurring in the present and considering an ICJ advisory opinion adopted now from the perspective of future generations.

The approach argued for here would allow the ICJ to demonstrate impartiality, in terms of the interests of developing and developed countries, in that the Court could emphasise the common but differentiated responsibility of states in addressing climate change embedded in the Paris Agreement, while recognising differentiation in terms of responsibilities of individual or groups of states in accordance with historic emissions and capacity. This approach would help to increase pressure on states to implement and strengthen the Paris Agreement, while avoiding undermining the Agreement.

7.1 Introduction

Young people alive now and future generations have overlapping, albeit distinctive interests. In this chapter, we zoom in on a legal case study where young people speak on their own behalf, while also using a framing where they seem to speak on behalf of all children impacted by climate change – now and in the future – thus constituting a striking example of proxy representation that lies squarely within the central theme of this book.Footnote ¹ We focus on one specific complaint (‘communication’) brought under the complaints mechanism of the UN Convention on the Rights of the Child (CRC) (1989): the communication by 16 children to the UN Committee on the Rights of the Child (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019). This communication argued that Argentina, Brazil, Germany, France, and Turkey violated the children’s rights to life, health, and culture by failing to cut greenhouse gas emissions sufficiently or to encourage other high-emitting countries to do so.

This human rights case study in the context of Representation of Future Generations is timely because proactive and innovative lawyers, activists, and scholars are now testing opportunities to evolve human rights law to better protect future people in the climate emergency. While there are inherent limitations to using a human rights framing, in that it is inherently anthropocentric, improving or repurposing existing legal frameworks through incremental changes may be more efficient than initiating new frameworks. Moreover, there has arguably been a greening of human rights law, with human rights scholars increasingly acknowledging the inherent interdependence of social-human and ecological systems. Further, some countries have extended rights language to non-human nature (Gellers Reference Gellers2021), and several court cases stress the threat of environmental harm to human rights (see Peel & Osofsky Reference Peel and Osofsky2018). Many countries include the right to a safe climate, environment, or future in their constitution or legislation (UN Special Rapporteur on Human Rights and the Environment 2019); the right to a healthy environment is now also recognised by the UN Human Rights Council (UNHRC 2021a) and by the UN Committee on the Rights of the Child Convention (hereafter ‘the Committee’) in its General Comment 26 (UNCRC 2023). Human rights language focuses public attention on the human consequences of climate change and puts a ‘human face’ on the climate disaster (Peel & Osofsky Reference Peel and Osofsky2018: 40).

The global character of human rights institutions is a second key attraction for including a human rights case study. On a national scale, people have already used human rights law successfully to protect their future, such as in the famous The State of the Netherlands v Urgenda case decided by The Hague Court of Appeal in 2018, and subsequently upheld by the Supreme Court of the Netherlands on 20 December 2019 in The State of the Netherlands v Urgenda Foundation. And increasingly, international courts also speak about the threat climate change poses to future generations, such as in the Verein Klimaseniorinnen v Switzerland decision of the European Court of Human Rights (ECtHR 2024: para 420). As seeking justice on a national level is costly, unpredictable, and time consuming to repeat in different national jurisdictions, the communication procedure discussed in this chapter offers another avenue for children to seek justice for a global problem on a global scale, with the possibility of setting global precedents.

Finally, the communication procedure is one of the few international legal mechanisms where children can seek justice directly, offering a powerful voice to people who usually do not even have a seat at the table: it creates public awareness that children – not abstract entities – are harmed by climate change today; and is inherently future looking, since foreseeable harms are also considered by the Committee.

This case study provides an analysis of the complaints system under the CRC, and the Sacchi case in particular, as an example of proxy representation of future generations. An analysis is made of the democratic legitimacy and effectiveness of the communication procedure illustrated by the Sacchi case, using the criteria developed in Chapter 4.

As the impact of this case on substantive justice is inherently uncertain, we focus our analysis mostly on procedural justice. Nevertheless, an analysis is also made of this case in terms of its potential contribution to substantive justice, using a concept of intergenerational justice based in human rights as set out in (Section 3.4.1). It will be recalled that this conception of intergenerational justice entails the idea that, regardless of when a person is born, they are entitled to enjoy the full spectrum of human rights necessary to lead a decent life.

In the remainder of this chapter, I will, first, elaborate on the complaints procedure generally and the children’s communication in Sacchi, specifically (Section 7.2), then assess the democratic legitimacy and effectiveness of the procedure (Section 7.3), before drawing conclusions (Section 7.4), which includes a discussion of reform options.

7.2 The Communication

On 19 December 2011, the UN General Assembly (UNGA) adopted an Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (Third Optional Protocol) (2011). Article 5 of this Protocol allows children to make a communication to the Committee when they believe their rights, as outlined in the CRC, have been violated by the actions or omissions of a state. After a communication is lodged, both the state or states, other stakeholders, and, in turn, the petitioners can set out their response to the complaint by filing additional documents with the Committee; they can also make oral submissions to the Committee. Once all information is in, the Committee decides on whether the communication is admissible and, if so, formulates recommendations to the states about whether the Committee finds that rights were violated and/or the states should change their policies or behaviour. The states are under no obligation to implement the recommendations, but are obliged to submit a written response justifying the extent to which they implemented the recommendations (Third Optional Protocol 2011: art. 11(1)).

While the Committee merely has power to make recommendations, and the influence of the procedure on substantive justice is uncertain and limited, this procedure could nevertheless help build the momentum of climate litigation. For example, by making authoritative recommendations, the Committee can help overcome legal hurdles related to, for example, causation, jurisdiction or standing that are now often faced by young climate litigants. This could help build other legal cases globally (Gubbay & Wenzler Reference Gubbay, Wenzler, Alogna, Bakker and Gauci2021). More broadly, the procedure gives children a genuine voice – as victims of climate change, and as activists and litigants – holding states accountable (Rogers Reference Rogers2019, Reference Rogers and Richardson2020). It offers a pathway for groups of young petitioners from around the world to file communications collectively. The perspectives of children in the communication may influence states’ laws and policies; it can also influence societal narratives more broadly.

7.3 Democratic Legitimacy and Effectiveness of the Communication Procedure

As explained in Chapter 4, at the most general level, legitimacy of the communication procedure rests on the consent of states, particularly the consent given to the treaty which established it. This consent was clearly present, since the five state respondents voluntarily became parties to the CRC and its Third Optional Protocol. Representatives of all these state parties explicitly consented to recognise the powers of the Committee, pledged to protect the rights outlined in the Convention, and promised to allow citizens to submit petitions to the Committee. The Committee is a well-respected and independent expert body; the CRC is the most rapidly and widely ratified human rights treaty in history. Moreover, as the Committee has merely non-binding powers, it cannot override democratically made decisions at the national level. This means that the source-based legitimacy of any policies – including potential policy changes inspired by the recommendations of the Committees – still lies at a national governmental level of each country.

Questions around the legitimacy of the communication procedure extend much further than this. In Chapter 4, we set out five criteria for analysing the democratic legitimacy of international institutions for future generations. In the following four sections, we analyse the communication procedure – and, specifically, the complaint by Sacchi et al. – following these criteria: procedural legitimacy entailing inclusive and fair representation (Section 7.3.1); accountability, transparency, and deliberation (Section 7.3.2); source-based legitimacy, including discourse, expertise, and resources (Section 7.3.3); and substantial legitimacy or effectiveness and equity (Section 7.3.4). While the Committee is not a judicial body and its findings are non-binding, it nevertheless operates on a quasi-judicial basis, with its decisions influencing interpretation of the CRC and national decisions. It is therefore appropriate to apply the criteria for democratic legitimacy of international tribunals to this case study.

7.4 Conclusion

Throughout this chapter, we have mentioned limitations and opportunities of the complaints system generally and, specifically, in relation to the children’s communication in Sacchi et al. The communication procedure offers a pathway for children’s interests to be recognised and represented, and for children’s voices to be heard. This procedure is one of the few pathways accessible to children to take international legal action related to climate change. However, future generations cannot participate (as they are not yet born) and the Committee has not been responsive to the idea that they be represented by proxies. While there is room to explicitly consider the interests of future generations – for example, in the Committee’s decision, or in the proposed mandate of the newly established Special Rapporteur on the issue of human rights and a healthy environment – they are currently left out. On the one hand, we might argue that explicitly including the needs of future generations is not needed, as their needs largely overlap with those of children currently alive: these children are already suffering serious impacts from climate change now, making children the preferred plaintiffs. On the other hand, finding a way to grapple with human rights violations in the long-term future, especially where the needs of children might be different from those of future generations, might be needed for future cases.

Interestingly, the Committee seems to be lagging behind the thinking of young people on this point. A recent global survey of climate litigation brought by young people found that, in the vast majority of cases, the claimants purported to speak on behalf of future generations – demonstrating solidarity with them and emphasising the importance of intergenerational equity (Donger Reference Donger2022). Indeed, in national court decisions, intergenerational equity has increasingly been given weight (see Section 6.7).

When focusing on the potential substantive justice impact of the communication procedure, the analysis is grimmer. Even if the communication of the children had been found to be admissible, and even if the decision of the Committee had advised states to change their behaviour, it is unlikely to have had a large impact on states’ behaviour directly. The asymmetry in power, where the interests of adults in national governments tend to overpower those of young people and future generations, is hard to overcome in international human rights law.

However, the Committee’s decision with regard to causation and jurisdiction constitutes a modest but significant step forward. Human rights law has the potential to better deal with the uncertain global and intergenerational character of climate change; precedents, such as the one discussed in this chapter, help to build momentum for future climate litigation globally and for minimising state-centrism.

8.1 Introduction

The United Nations held a Summit of the Future on 22 September 2024 and adopted a Pact for the Future, including a non-binding Declaration on Future Generations. The Declaration in para 32 noted the proposal by the UN Secretary General to appoint a Special Envoy for Future Generations but did not agree to create one (UNGA 2022a: para 3).Footnote ¹ However, in October 2024 it was reported that a senior UN official had announced at a major international conference that the Secretary-General was intending to proceed to create such an envoy (Day Reference Day2024).

This chapter makes a preliminary assessment of the proposed UN Special Envoy for Future Generations (hereafter, UN Special Envoy) by examining it through the lens of three frameworks. These frameworks provide both the rationale or normative basis for such a proposal and a basis for evaluating or critiquing such an institution (Section 8.2). The three frameworks involve the principles of intergenerational justice, solidarity, and vulnerability (set out in Section 3.2). The UN Special Envoy proposal is then evaluated (Section 8.3) in terms of its legitimacy and effectiveness using the criteria elaborated in Chapter 4. Legitimacy is crucial here, given that previous attempts to establish bodies of this nature – including a proposed UN Commissioner for Future Generations made at the 2014 Rio +20 summit – failed due to lack of support from developing countries (Lawrence Reference Lawrence2014: 17). Garnering such support will be essential for any such mechanism to succeed. Thus, likely effectiveness is inexorably connected to legitimacy. This chapter then examines the UN Special Envoy proposal by considering lessons that can be learned from the establishment of UN mechanisms to further the interests of other vulnerable groups (Section 8.4.1), and institutions purporting to represent future generations at the national level, such as ombudsperson or commissioners for future generations (Section 8.4.2). In Section 8.5 the possible functions of a UN Special Envoy are examined and recommendations made as to what mandate the Envoy should have applying the matrix of proxy functions elaborated earlier in this book (Chapter 2, Section 2.5). Finally, an overarching framework for measuring the potential effectiveness of the UN Special Envoy which incorporates both frameworks – proxy representation functions and democratic legitimacy – is proposed (Section 8.6).

8.2 Justifying a UN Special Envoy for Future Generations

A starting point for this book is that current institutions, policy, and law-making at both national and international levels are biased against the interests of future generations. Evidence for this bias is ubiquitous, including the inadequate response to climate change and biodiversity, just to mention two areas. The best response to this crisis is to incorporate the interests of future generations and nature in decision-making, a process called ‘mainstreaming’ (Dryzek). A second-best – but still worthwhile – parallel strategy involves proxy-style representation of both nature and future generations to increase the weight given to these interests in law-making processes (Lawrence Reference Lawrence2022). A third approach involves the use of so-called commitment devices which bind decision-makers to a particular course of action (see Section 8.4.2). Such devices come in a range of forms: they can be legal, institutional, soft, or hard. They also require policy-makers to consider long-term interests – including the interests of their future selves – as an integral part of the decision-making. A UN Special Envoy would constitute both a commitment device and an advocate for other – more effective – commitment devices.Footnote ²

A further justification for a UN Special Envoy rests in the democratic ideal. We saw earlier (Chapter 3) that a common thread running through theories of democracy is the ‘all affected principle’, whereby those affected by a decision should have a say in the making of that decision. A UN Special Envoy or similar type of institution is justifiable as a mechanism by which future generations can be given a voice. Currently, no UN mechanisms are assigned this task.

Further normative justification is grounded in the three key normative principles elaborated in Chapter 3, namely, the concepts of intergenerational justice, solidarity, and vulnerability. The three normative pillars set out in Chapter 3 provide a strong rationale for proxy representation of future generations in the form of a UN Special Envoy or similar type of institution. The strands of the argument are interconnected. For example, future generations are, in many ways, akin to other vulnerable groups which are disproportionately impacted by climate change because of their vulnerability. These include the young, elderly, people with disabilities, people living in poverty, and women (more so than men). Proxy representation can help address these vulnerabilities by putting pressure on decision-makers to factor in the interests of future generations in law and policy-making aimed at ensuring that their human rights are protected. Given human dependency on functioning ecosystems, these rights include the right to a healthy environment. This, in turn, is an expression of solidarity. Solidarity is important: without some notion of being connected to future generations, there is no basis for action benefiting them.

But proxy-style institutions, such as a UN Special Envoy, need to meet criteria of democratic legitimacy, which (as argued in Chapter 4) is inexorably intertwined with their effectiveness.

8.3 Democratic Legitimacy of a UN Special Envoy

In Chapter 4 (Section 4.2.1), we set out criteria for the democratic legitimacy of international institutions based on an amalgam of criteria from Klaus Dingwerth (Reference Dingwerth2007, Reference Dingwerth2014), Sylvia Karlsson-Vinkhuyzen and Antto Vihma (Reference Karlsson-Vinkhuyzen and Vihma2009), and Daniel Bodansky (Reference Bodansky1999), adapted to the context of institutions for future generations. We also introduced the concept of future legitimacy (Section 4.2.1).Footnote ³

These criteria can be summarised as follows.

1. (A) Procedural (input legitimacy): inclusive/fair representation, accountability, transparency, and deliberation.

2. (B) Source based (input legitimacy): expertise, legal legitimacy, tradition, and discourse.

3. (C) Substantive (output legitimacy): effectiveness, and equity.

We now turn to examine each criterion separately.

Procedural or input legitimacy involves inclusive and fair representation and, in particular, the idea that, for a decision to be democratically legitimate, those affected by the decision should have a say in the making of the decision – the ‘all affected principle’ (Goodin Reference Goodin2007). Future generations cannot directly have a say in decisions taken now but can indirectly have a say through proxy representatives. Importantly, ‘representation’ does not just include acting on behalf of somebody as an agent. Rather, as Hannah Pitkin points out, it also includes ‘substantive acting for others’ interests’ (Pitkin Reference Pitkin1967: 209). This opens the possibility of a proxy representative of future generations on the basis that future generations possess interests (Goodin Reference Goodin1996: 835; Ball Reference Ball, Dobson and Eckersely2006: 137). The proxy can make reasonable assumptions as to the interests of future generations, including the need for a stable climate and functioning ecosystems upon which their welfare will depend (Vanderheiden Reference Vanderheiden2008: 129).

In the context of proxy representation of future generations, youth representation of future generations can enhance legitimacy. While empirical research suggests that young people do not necessarily accord more weight to future generations than do older people,Footnote ⁴ the interests of young people overlap significantly more with the interests of persons not yet born than those of older people in the sense that climate change will threaten the interests of younger people over a longer span of their lives. Reflecting both this truth and altruism, young people have initiated school strikes around the world, as well as launching climate litigation where they have not only purported to speak for their own interests, but also on behalf of future generations (Donger Reference Donger2022). Thus, as argued in Section 4.2.1, appointing a young person as a UN Special Envoy would increase the legitimacy of this office as it performs the important function of acting as an advocate for the welfare of future generations. Interestingly, the Mary Robinson Foundation’s 2018 proposal for Global Guardians for Future Generations – which no doubt helped lay the groundwork for the recent push for a UN Special Envoy – proposed appointing three individuals as Global Guardians for Future Generations, one of whom would be under 30 years of age (Mary Robinson Foundation 2018: 10).

Accountability and Transparency are potentially problematic in the context we are discussing because it would seem impossible to make a proxy for future generations accountable to persons not yet born. Nevertheless, accountability can be achieved, at least indirectly, by ensuring that the proxy operates consistently with a mandate which reflects the interests of future generations. Moreover, the proxy could be held to account by non-governmental organisations (NGOs) having a role in monitoring the proxy’s performance. Transparency of the proxy’s activities is an important precondition for this monitoring to take place (Hale Reference Hale2008).

Deliberation is a vital element in many theories of democracy and is often seen as the vehicle by which citizen’s views are conveyed to representative institutions (Saward Reference Saward2008). As argued in Chapter 3, deliberative democracy provides a strong justification for a proxy to represent the interests of future generations in the deliberative process.Footnote ⁵ Thus, if we consider the role of proxies for future generations as articulating the interests of persons not yet born (rather than representing them), this would open the possibility of a UN Special Envoy meeting this criterion.

Expertise can feed into legitimacy if, for example, a proxy can provide expert advice to government on best practices in representing future generations’ interests in policy-making.

Legal legitimacy involves authority based on being in accordance with law. At the international level, this involves institutions acting in a manner consistent with the treaty that established them; the treaty, in turn, derives its legitimacy from states’ consent (Bodansky Reference Bodansky1999: 604–605).

Tradition as a source of legitimacy can include, for example, the legitimacy of the United Nations Framework Convention on Climate Change (1992) (UNFCCC)/Paris Agreement (2015) regime as the legitimate form of intergovernmental governance to address climate change (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 410). A UN Special Envoy may derive legitimacy from the status of similar types of UN Special Envoy created in the past.

Discourse refers to legitimacy, which can be derived from an institution being linked to a dominant ideology; for example, sustainable development. This issue is taken up (Section 8.5) in terms of the appropriate mandate for a UN Special Envoy.

Output legitimacy includes the effectiveness and equity of outcomes. Given this book’s focus on climate change, we define effectiveness (see Section 4.4) in terms of the extent to which an international mechanism promotes: (i) intergenerational justice and the values of inclusiveness, solidarity, and addressing vulnerability; and (ii) the Paris Agreement objectives, including both the 1.5/2°C overarching target and the ability to ensure adaptation for future generations, as well as climate resilience, low greenhouse gas emission development, and adequate financing. A further important criterion is the extent to which the institution addresses the cause of wrongful short-termism.

Effectiveness is strongly linked to the concept of future legitimacy (see Section 4.2.3), which involves an institution looking at the present from the perspective of future generations. Examining a UN Special Envoy from this perspective would lead us to favour an institutional mechanism with strong powers and the capacity to exert maximum pressure on law and policy-makers in the direction of redressing the bias against the interests of future generations. We argue (see Section 4.2.1) that, to avoid the concept of ‘future legitimacy’ pushing too far in the direction of emphasising intergenerational justice at the expense of intragenerational justice and the needs of a person alive now, legitimacy would comprise the overlap between current and future legitimacy.

In the context of a UN Special Envoy, the concept of ‘future legitimacy’ provides an additional dimension to accountability in the sense that we must consider accountability from the perspective of future generations. Accountability through adherence to a mandate involving intergenerational equity (as discussed earlier) and accountability to persons alive in the future would push in the same direction. Given that a UN Special Envoy is likely to be limited to making non-binding recommendations – and unlikely to be given any powers to override states – the risk of such a mechanism pushing too far in the direction of the interests of future generations would seem negligible.

Equity reflects the idea that substantive legitimacy involves both contributing to solving a particular problem and furthering justice. Given the context of extreme global inequality, mechanisms need to not only just change behaviour or solve a particular problem but also enhance justice. The link to effectiveness is that norms or mechanisms perceived to be both legitimate and fair are more likely to be complied with (see literature referred to in Section 4.2.1).

Table 8.1 summarises the application of the legitimacy criteria to the proposed UN Special Envoy outlined in the earlier discussion. The left-hand column sets out the legitimacy criteria. The middle column includes the design features which would maximise achieving the criterion. And the far right-hand column sets out the features which would minimise achieving the criterion.

8.4 Lessons from Existing International Institutions to Protect Other Vulnerable Groups and National Institutions for Future Generations

8.5 Proxy Functions of a UN Special Envoy

A UN Special Envoy did not emerge from the 2024 Futures Summit, but the Secretary-General could nevertheless proceed to appoint a Special Envoy. The Secretary-General’s Our Common Agenda report suggests that a function of the UN Special Envoy would be to make recommendations on the best institutional form a mechanism to represent future generations might take (with options including regional guardians of future generations or a UN Commissioner) (UN SG 2021: 45).Footnote ⁶ Combining a 2013 report of the previous Secretary-General (UN SG 2013: 17) with the UN Secretary-General’s 2023 report gives some indication of what functions a UN Special Envoy could have (UN SG 2023: 13). These functions might include a mandate to:

1. 1. act as a ‘global independent advocate for intergenerational solidarity, with a particular concern for the welfare of future generations’;

2. 2. ‘promote … best practices in policy-making at all levels’;

3. 3. ‘promote … engagement and full participation of all stakeholders in United Nations processes related to intergenerational solidarity’;

4. 4. ‘conduct public advocacy to raise awareness of the measures needed at the global level’;

5. 5. facilitate long-term thinking and better use of foresight mechanisms;

6. 6. report annually to the General Assembly and upon request to the high-level political forum; and

7. 7. act pursuant to a mandate that would extend beyond today’s youth to include the ‘needs of future generations’.

As set out in Section 2.5, proxy representation can be broken down in accordance with the functions it performs, as follows:

• ‘Proxy representative function’ occurs when the proxy purports to speak or act on behalf of future generations (‘direct representation’), with ‘indirect representation’ occurring where the proxy highlights the interests of future generations without purporting to speak on their behalf.

• Proxy compliance function occurs where the proxy operates to help ensure compliance with existing international rules that factor in future generations’ interests. This in turn leads to:

• Proxy law reform function, where the proxy advocates for reform of international law rules and institutions, including other types of commitment devices. Such a function is likely to be included in the mandate of the new UN Special Envoy for Future Generations (see further).

• Proxy norm-entrepreneurial function occurs where the proxy plays a leadership role in persuading others to adopt a particular norm; for example, a UN Special Envoy could advocate for the norm of intergenerational equity (entailing an assessment of the impacts of current policies on future generations) to be incorporated across all UN programmes. The concept of ‘norm entrepreneurs’ is linked to constructivist concepts of international relations (see, for example, Wendt Reference Wendt2001). Intuitively, it would seem likely that there is a strong relationship between the legitimacy of the norm being advocated and the legitimacy of the leadership of the particular proxy representative. In other words, if the norm being advocated is not seen as being in the interests of all countries, then a proxy representative advocating for this norm will have an uphill battle. Conversely, if the norm is perceived as being in the interest of all states, this may facilitate the norm-entrepreneurial function.

A proxy representative of future generations may perform some or all these functions, to varying degrees. A central argument of this chapter is that the most effective proxy representative will maximise the performance of all these functions. By breaking down proxy representation into these elements, a more nuanced analysis can be made as to exactly what a proxy representative is and should be doing. As we shall see, this breakdown also allows a more nuanced analysis of the democratic legitimacy of proxy representatives – to which we now turn.

To ensure the legitimacy and effectiveness of a UN Special Envoy, its mandate should be linked to principles or discourses that already enjoy strong support in the international system. Such principles could include:

• Human rights necessary to lead a decent life (Caney Reference Caney and Humphreys2010) and including a healthy environment extending into the futureFootnote ⁷ aimed at protecting human beings’ underlying core needs and interests.

• Intergenerational equity and solidarity between generations interpreted as ensuring that future generations enjoy – as a minimum – human rights necessary for a decent life and a healthy environment, including a functioning climate system.

• Strong sustainability including an obligation to preserve the irreplaceable elements of the global ecological systems upon which human beings depend (Dryzek & Pickering Reference Dryzek and Pickering2018: 89–92).

It is important to note that the concept of intergenerational equity is a component of sustainable development which has received broad international endorsement since the oft-cited formulation in the Brundtland 1987 report, Our Common Future. This report defined sustainable development as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’ (UN SG 1987: 43). Strong support for the principle of intergenerational equity and solidarity in securing the interests of future generations was identified in the initial consultations on elements to be included in a Declaration for Future Generations to be adopted at the Summit for the Future by the UN General Assembly in September 2024 (see United Nations 2023; see Issues Paper 2023). In the Declaration on Future Generations ultimately adopted by the Summit (United Nations 2024), while there were references to the promotion of intergenerational solidarity (para 4), and the principles of equity and solidarity (para 5), there were no references to ‘intergenerational equity’ but rather the (weaker reference) to taking into account the ‘needs and interests of present and future generations’ (para 20).

While the Declaration on Future Generations made reference to sustainable development (para 20) this concept has become tarnished in that it has been interpreted as justifying unfettered economic development at the expense of the environment (Dryzek & Pickering Reference Dryzek and Pickering2018: 85–6). When interpreted as ‘weak sustainability’, the concept allows natural capital – including biodiversity, forests, fauna, and flora – to be substituted by artificial capital (Ott Reference Ott, Klauer, Manstetten, Petersen and Schiller2017: 24; Neumayer Reference Neumayer2003). This is problematic, as the multi-functionality of many ecological systems limits their substitutability (Harte Reference Harte1995). The upshot is that weak sustainability can involve not protecting future generations’ human rights as the ecological systems upon which they will depend are degraded. This suggests that a strong version of sustainability should be incorporated in the mandate of the UN Special Envoy, entailing the principle that the irreplaceable elements of global ecological systems should not be degraded. While, undoubtedly, this would be difficult to negotiate, it would clearly strengthen the mandate of the UN Special Envoy. Absent such a clear principle, a UN Special Envoy would necessarily have to fall back on less direct principles, such as arguments about the dependence of human beings on global ecological systems.

Whether the mandate of the UN Special Envoy should seek to incorporate a right to development is a complicated issue, which touches on the tension between the rights of contemporaries and future generations (Spijkers Reference Spijkers2018: 7). In the past, there have been attempts to combine the right to development with intergenerational equity. Thus, the 1972 Stockholm Declaration Principle 3 states that ‘the right to development must be fulfilled to equitably meet developmental and environmental needs of present and future generations’. In the drafting, this principle initially referred only to the ‘right to development’; a reference to ‘future generations’ was added at the insistence of the Nordic countries, ensuring that the final text refers to both current and future generations. Interestingly, however, the provision is now interpreted as referring only to intergenerational rights and not the right to development (Spijkers Reference Spijkers2018: 6–7).

The breadth of the mandate would be a key issue here. A broad mandate allowing the UN Special Envoy to operate guided by the principles set out earlier would allow the Envoy to represent future generations across the UN system. A UN Special Envoy with a broad mandate to represent future generations based on these principles could be given discretion as to how it performs its functions. However, a broad mandate would entail potential risks of overlap with existing UN regimes or agencies, including the Framework Convention on Climate Change (UNFCCC), the UN Environment Programme (UNEP), the UN Development Programme (UNDP), the World Health Organization (WHO), and the UN Educational, Scientific and Cultural Organisation (UNESCO), to name some of them.

One way of reducing this risk would be to design the UN Special Envoy to ensure that it had a strong proxy compliance function, with its mandate linked to specific intergovernmental norms, processes, or treaties. One such candidate here would be the 2030 Agenda for Sustainable Development (adopted in 2015): this comprises 17 Sustainable Development Goals (SDGs) (UNGA 2015), which require a commitment to future generations and long-term policy-making as part and parcel of their implementation (Soltau Reference Soltau, Linehan and Lawrence2021; cf. Spijkers Reference Spijkers2018). The Group of 77 at the United Nations (G77), representing developing countries and China, indicated in the lead up to the Summit for the Future that it would support a focus in the Declaration on Future Generations on implementing existing commitments including the 2030 agenda (G77 and China 2022: para 26). The G77 and China also indicated that eradicating poverty, the ‘development pillar’ (included in the Preamble of the United Nations Charter), and intragenerational justice should be given equal importance to intergenerational justice in the intergovernmental process leading to the Declaration on Future Generations (G77 and China 2022; paras 7, 18, and 25), and that any new mechanisms would need to be established through the intergovernmental process related to the declaration (G77 and China 2022). They ruled out the possibility of any amendment of the UN Charter (G77 and China 2022: para 31), which would be a prerequisite for repurposing the existing Trusteeship Council. It may, however, be possible to repurpose the Trusteeship Council through a UN General assembly resolution without amending the Charter. In any event, the UN Secretary-General has indicated that UN members do not favour this proposal (UNSG 2023: 17). The G77 and China implicitly accepted that ‘intergenerational equity’ and ‘solidarity’ were appropriate principles for inclusion in the Declaration but argued, in addition, that there should be reference to ‘the principles of multilateralism, equity and Common but Differentiated Responsibilities’ (UNSG 2023: para 17).Footnote ⁸

Indeed, the Declaration on Future Generations adopted at the Summit (United Nations 2024) reflected the G77 and China position with most of its content comprising the repetition of existing commitments already made by countries in, for example, the SDGs.

In terms of functions of a UN Special Envoy, a further possibility that has been discussed over recent years is the idea that it play a role in international judicial processes. In the lead-up to the 2014 Rio +20 conference, some NGOs argued that a UN Commissioner for Future Generations should have standing to bring cases on behalf of future generations in the International Court of Justice (ICJ) (Ward Reference Ward2012). This idea has never been pursued and is a ‘bridge too far’ for states zealous of their sovereignty. Nevertheless, the normative principles reflected in the proposed mandate for a UN Special Envoy set out earlier – particularly the concept of intergenerational equity – could provide a basis for the ICJ to interpret its rules of procedure flexibly to allow NGOs to represent future generations in amicus curiae briefs, which could operate to bring to the Court’s attention the interests of future generations in particular proceedings (Lawrence & Köhler Reference Lawrence and Köhler2018). Such a function would be enhanced if states explicitly granted a UN Special Envoy this right in the rules of procedure of the ICJ.

Similarly, a UN Special Envoy could exercise compliance functions and law reform functions more effectively, if it were given explicit standing in the UN climate negotiations. This seems unlikely given that the Declaration on Future Generations only contains broad-brush, rather than precise, obligations.Footnote ⁹ Nevertheless, even the Declaration with its general obligations could provide sufficient leverage for a UN Special Envoy to exert pressure on governments to factor in the interests of future generations in policy and law-making. A declaration could have important political and normative effects, even if it did not create new legal obligations (Hale et al. Reference Hale, Moorhouse, Ord and Slaughter2023: 23–4). It could, for example, serve as a reference point for future more specific rulemaking, as did the UN Universal Declaration on Human Rights in relation to the development of the global human rights regime (Hale et al. Reference Hale, Moorhouse, Ord and Slaughter2023: 24).

As mentioned, the UN Secretary-General’s Our Common Agenda report envisages that the UN Special Envoy would develop proposals on the ultimate governance structure adopted by the UN, with possibilities listed including regional guardians for future generations, a global commissioner for future generations, or a revamped Trusteeship Council. Interestingly, a wide spectrum of mechanisms is envisaged, ranging from formal through to softer peer-review type mechanisms. The experience in other areas of international law demonstrates that success can often be achieved by starting with informal mechanisms that require exchanges of views and confidence building, which then provide the basis for moving to more formal mechanisms.

While space precludes discussion here, a longer-term proposal worth pursuing could be establishing a new Optional Protocol to the UN Convention on Economic, Social and Cultural Rights that would require parties to establish national institutions to represent future generations and to report on long-term impacts of policy-making.Footnote ¹⁰ Such an instrument could be linked to an existing human rights instrument.

8.6 Synthesis: Strategic Alignment for Future Generations

Table 8.2 combines the democratic legitimacy of Table 8.1 with the proxy representation functions outlined earlier to demonstrate what is likely to be most effective in terms of the design of a UN Special Envoy for Future Generations. The argument is that effectiveness will be optimised where the UN Special Envoy maximises its various legitimacy criteria and proxy functions (left-hand column of Table 8.2) with the features of ‘Strong’ strategic alignment set out in the centre column. When this occurs, this is described as ‘strategic alignment for future generations’, meaning that the UN Special Envoy is most likely to be effective and operate in a way that maximises intergenerational justice; in other words, its functions align with the interests of future generations. When this occurs, the UN Special Envoy is most likely to function in a way which helps transform policy and international law-making to balance intergenerational and intragenerational justice (see Chapter 4). Conversely, where the UN Special Envoy’s functions are aligned with the features of ‘Weak’ strategic alignment (set out in the right-hand column of Table 8.2), it is more likely to be ineffective and poorly aligned with the interests of future generations.

It is important to note (as discussed in Section 4.2.3) that effectiveness is linked to: (i) how a particular institution promotes intergenerational justice and the values of inclusiveness, solidarity, and addressing vulnerability; (ii) the Paris goals; and (iii) the extent to which a particular mechanism addresses causes of harmful short-termism. As we have seen, one important cause of short-termism is the lack of awareness of long-term policy impacts. A UN Special Envoy could not only help to address this deficiency by authoring high-quality reports on long-term trends and impacts of policy but also through sharing best practices and strengthening national mechanisms for future generations. From a practical point of view, a UN Special Envoy would focus on climate impacts which are short- or medium term, as these are more certain and easier to document. As mentioned in the Conclusion of Chapter 4, there is a lack of research on the structural causes of short-termism in terms of international law-making and international institutions more generally. Appointing a UN Special Envoy could be a trigger for quickly redressing this research deficit.

It is important to recognise an important lesson from the design of such mechanisms at the national level. The stronger the mandate such institutions have had in terms of their powers, the more likely governments are to become nervous and clip the wings of such institutions by reducing their powers.Footnote ¹¹ This demonstrates a difficult dilemma in designing a global UN Special Envoy. A UN Special Envoy with a strong mandate is likely to generate concerns amongst states zealous of their sovereignty – particularly developing countries concerned about interference with their economic development. On the other hand, a UN Special Envoy with a weak mandate may struggle to have an impact, particularly if the UN Special Envoy is poorly resourced. A weak UN Special Envoy may be worse than none at all.

Finally, it should be noted that, since 2020, there has been a significant shift in improving the extent of consultation with young people in UN processes. Evidence for this is the extensive consultation with youth undertaken by the UN Secretary-General in producing the Our Common Agenda report (UN SG 2021: 39). Further examples include the extensive consultations undertaken by the UN Human Rights Committee in the drafting of a General Comment on children, human rights, and the environment (particularly climate change), with consultation taking place in regions across the world with youth groups (UNOHCHR 2021). In addition, the 2024 UN Summit for the Future included youth representatives selected by the President of the General Assembly in consultation with member states (UN GA 2022a: para 4). As mentioned earlier, engagement with youth in these processes is indispensable to their legitimacy. This engagement with young people needs to be across both the age and developing–developed country spectrum. Addressing both these dimensions of legitimacy is likely to be a key factor in building legitimacy and support for a UN Special Envoy and implementing the various elements agreed at the 2024 Summit of the Future.

9.1 Introduction

The failure of existing forms of international law-making and global governance to adequately respond to the climate change crisis means that there is an urgent need to explore new forms of governance. Mechanisms involving proxy representation of future generations are one such form that can play a modest role in helping to ensure the long-term consequences of political action are incorporated in law- and policy-making. If this does not happen, the ecological consequences of inadequate action on climate change are at risk of becoming so dramatic that future generations will suffer massively from these effects. The current political and legal debates on how best to respond to the ongoing and worsening consequences of climate change can be understood as an attempt to address this question.

Representing Future Generations contributes to this discourse on possible theoretical and practical pathways. Our main argument is that the search for – and collective experimentation with – new forms of representation are immensely important elements of sustainable climate policy. Through proxy representation, future generations can be practically and institutionally involved in climate law and policy-making, considering both the vulnerability of future generations and their distinctive interests. By having a proxy reflect their concerns in the present, the medium- and long-term consequences of climate change can become politically manageable, leading to better climate policy.

Representation is a meaningful form of political governance because it is based in democratic theory. In this book, we have presented different understandings and practices of democracy and demonstrated that all consider representation as a central method of democracy. Some construe it narrowly, others more broadly; in all traditions, it plays an important role. Moreover, while recognising that the value of the democratic ideal at the international level remains controversial, we argue that the normative ideal of democracy has received formal endorsement from the international community in a raft of international instruments (Chapter 2) and remains a valid ideal for the same reason it is justified at the national level, namely to avoid tyranny and abuse of power and also to maximise the likelihood of just outcomes in decision-making.

This concluding chapter is structured as follows. We first set out how the pragmatist approach has shaped the various elements of this book (Section 9.2). We then make an assessment of the book’s value in relation to real-world international political processes (Section 9.3), before concluding with some suggestions as to fruitful directions for future research (Section 9.4).

9.2 Proxy Representation through a Pragmatist Lense

Consistent with the pragmatist approach of the book, we have not developed an ideal-theoretical justification of representation. Instead, we have identified representation as a central, inherent value of democratic practice and have explored how it can evolve in the face of ecological issues. This does not mean that representation only plays a role in democracies. It also does not mean that all countries and global politics must adopt a specific type of democracy as the basis for political governance. This would be an unrealistic proposal. Our goal is not to democratise the world but, rather, to utilise the idea of representation, which has its origins in various democracies (understood in a very broad sense). We propose reconstructing existing forms of proxy representation at the global level. We also consider how they can be convincingly further developed to facilitate representation of future generations as a means for addressing the climate crisis.

The question of who can (and may) be understood as a proxy is contentious. Some approaches suggest a narrow, actor-centred understanding. In this view, only individuals or clearly defined institutions, established through specific procedures and deriving legitimacy from them, can be understood as proxies. In current debates, the ombudsperson in the national parliamentary system is often mentioned: with clear legal foundations, an ombudsman can have, for example, an auditing or even a veto right over the legislative branch. The proxy then has a very clearly defined task and is, in turn, accountable to Parliament. Expressed broadly, the proxy is tasked with deciding as to whether a piece of legislation is problematic for reasons of intergenerational justice.

At the international level, there is no Parliament, although the United Nations General Assembly plays some of the roles of a global parliament, albeit with very limited powers. At the international level, the proposed UN Special Envoy for Future Generations (discussed in Chapter 8) is the international version of the ombudsman-style proxy mechanisms.

The theoretical considerations of this book, as well as the case studies, show that it is meaningful to broaden such a narrow understanding of proxy representation. In the political and legal fields, proxies for future generations need not only be individuals or narrowly defined (institutional) actors but can also comprise (open) networks, such as social movements, laws themselves, and even social or legal discourses that reflect the interests of the future in the present. Of course, these forms of proxy representation are underpinned by varying degrees of legitimacy: an elected ombudsman has higher legitimacy concerning traditional legal categories than does a social movement or a legal discourse. However, they can all have a significant impact on current political processes. If representation – as we have argued – depends on identifying a sufficiently large audience that shares and implements these concerns, various forms of proxy representation can be justified, even if their legitimacy in the strict sense is lower.

We have argued that, in terms of their future legitimacy, all the proxies mentioned earlier can integrate the needs or interests of future generations in current political and legal mechanisms and have an impact in law- and policy-making. Our argument is: political decisions gain legitimacy only when they represent currently living people and their concerns and those of future generations. Legitimacy, therefore, needs to be expanded to include future legitimacy.

Our case studies demonstrate how proxies have already emerged, or are currently emerging, in the field of international law. In some areas, they have already had a pronounced impact, while in others, their impact remains diffuse. Difficulties in delineation arise in certain instances (e.g., between young persons currently living and future generations) which stem from the fact that human beings are temporal beings; thus, the relationship between present and future generations is constantly changing. The case studies show that, despite such challenges, a clear trend is discernible: many legal discourses, actors, and institutions are increasingly taking the concerns of future generations seriously, thereby becoming new forms of proxy representation.

The pragmatist approach underlying this book, inspired by John Dewey, interprets this constant change and expansion of forms of representation not as a problem but as potential. In contrast to other political-philosophical approaches that aim for the generalisability and extensive immutability of political and legal institutions, pragmatist approaches view political processes as ongoing processes. There is no ideal concept that could be deduced in advance for theoretical reasons. Instead, faced with complex problem situations, people have no choice but to experimentally adapt and improve their responses continuously. Politics and law are not fixed and ideal: they are not immutable. Rather, ideals, politics, and law must be tested – not just through ideas but also implemented in the real world to test the extent to which they ameliorate the human condition.

In this sense, the development of new forms of proxy representation can be understood: there is no final blueprint, no ultimate framework. Instead, there are normative heuristics, such as the acknowledgment that it is good and meaningful to take the vulnerability of future generations seriously and thus expand our understanding of justice based on solidarity with these future individuals. How this can be achieved politically or legally must be tested. These are new steps that require political courage and endurance because some developments may lead to dead ends and not be productive.

This does not mean that anything goes or that there are no criteria for evaluating how proposed new political or legal mechanisms or processes should be developed. In a fallibilistic sense, their legitimacy can be analysed and discussed for effectiveness. Both the development of the three normative principles (Chapter 4) and, correspondingly, the justification of proxy institutions in terms of legitimacy and effectiveness (Chapter 5) should be understood as involving criteria for evaluating the experimental process. It is through this constant readjustment and development that stable and effective institutions in the field of international law are possible.

This pragmatist approach seems to contradict some current interpretations of law in theory and practice. Does the law not stand for (timeless) stability and resist constant evaluations and transformations? This appears to us to be a truncated understanding of the law. The law also has no blueprint: it is not an absolute, timeless ideal. Instead, the law is to be further developed with a focus on both accepted procedures and normative considerations. This understanding does not imply a naïve legal positivism that struggles to adequately process normatively the perspectives of vulnerable groups and those without a voice. On the contrary, giving a voice to such groups through proxy forms of representation serves the goal of integrating future generations into the logic of law.

Our argument is that law-making is always an experimental process; the law needs to be further developed in response to important values, changing societal conditions, and global crisis phenomena. International law should not be conceived of from the perspective of rules made by all-powerful sovereign legal subjects but, rather, from the perspective of the vulnerable individual. Only then can it meet its own normative claim for justice and, in a compelling sense, meaningfully consider the interests of future generations by integrating them into legal institutions at all levels.

In this sense, international law is clearly not an absolute and timeless ideal. Rather, because global dynamics and problems are so complex and change rapidly, international law must constantly adapt to global circumstances to provide appropriate and reality bound responses to the crises of the time. In Representations of Future Generations, we demonstrate ways in which the concerns of future generations can be understood not as an ‘external disruptor’ to international law but, rather – through the highlighted discourses, practices, and institutional developments – as an integral part of international law. Our goal is to mainstream the interests of future generations in international law. The forms of proxy representation outlined in the case studies, and their ongoing development, are crucial steps towards achieving this goal.

9.3 Real-World International Political Processes

One initial value of our approach will be evident from the previous discussion: namely a perspective that connects climate change and development issues. Through proxy representation, the concerns of future generations should not be pitted against those of currently living individuals and vice versa. Politically formulated, climate and development policies need to be thought of together. The impacts of climate change affect both people living today and in the future, particularly those who are poor and vulnerable. Therefore, connecting these two perspectives is necessary – including in the design of representation mechanisms, which can involve a fresh perspective on sustainable development, of which intergenerational equity has always comprised a key component.

This is well illustrated with the example of human rights as international legal practice. The consequences of climate change need to be addressed, especially where climate impacts restrict, or make impossible, a decent life. Studies on climate change clearly show that, even with an immediate halt to all greenhouse gas emissions, there will be massive negative consequences that continue into the future. The consequences of climate change already complicate access to basic food and clean water in developing countries. Therefore, climate change already poses a serious threat to human rights. Both climate mitigation and adaptation are thus two necessary conditions to uphold the human right to a decent life. This entails securing basic needs in developing countries, rather than luxury needs in industrialised nations (Shue Reference Shue1993).

The question of the conditions influencing the satisfaction of basic needs is also central to development policy. Aligning climate policy with human rights, therefore, brings a closer connection between climate and development policy (see Comim Reference Comim2008). United Nations’ institutions have been intensively addressing this intertwining for two decades. Against the backdrop of ever worsening climate change, such integration of development and climate policy is only possible if we strengthen the potential for people living in poverty to exercise agency. This is the foundation of the idea of self-determined development and, at the same time, the most effective means to reduce vulnerability to climate change and increase the ability of vulnerable groups to cope with its inevitable consequences in a dignified manner. Conflicts of interest may arise between the interests of current and future generations, for example, when developing countries have an increasing need for energy. Politically, strategies must be sought that allow for climate protection and sustainable development, while also respecting the needs of future generations and the imperatives of freedom. To ensure the enactment of climate-friendly energy policy, transfers of low-carbon energy technologies will play a crucial role.

Despite our best efforts, conflicts can still arise – including between different dimensions of human rights themselves. Freedom and equality, for example, may lead to different (political) demands in shaping climate policy. For instance, the right to independent development includes a right to energy for emerging and developing countries, which can, in turn, have a negative impact on climate protection goals and the interests of future generations. Politically, a wise combination of various strategies (technology transfer, adaptation support, and linkage with development measures) is needed to allow developing and emerging countries to actively participate in climate protection without diminishing their chances of widespread economic development and poverty reduction. In resolving such conflicts, one dimension of human rights should not be given exclusive priority – as is the case in the approaches outlined earlier. The strength of human rights lies in their ability to establish a legal and ethically meaningful practice that can bring together different beliefs into a coherent framework. Justice, solidarity, and the overcoming of vulnerability form the starting point.

As we have seen earlier, these principles provide a powerful rationale for developing proxy-style mechanisms to represent future generations. Such institutions can be seen as integral to the promotion of sustainable development, which in its classic Brundtland (Reference Brundtland1987: 43) formulation involves ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. This close connection between sustainability and intergenerational justice provides a further rationale for proxy representation of future generations as a means for ensuring that their interests are properly factored into policy-making. As we have seen (Chapter 5), UN mechanisms developed to protect particularly vulnerable groups (such as children, disabled persons, and women) have, to date, been justified using normative arguments that have always included elements relating to development. Similarly, for new proxy-style mechanisms to represent future generations (such as a UN Special Envoy for Future Generations), normative arguments that gain the support of developing countries will be an important precondition of their success. Moreover, such arguments will need to include international, intragenerational, and intergenerational dimensions interacting constructively – not being traded off against one another.

It is also important to remember that, as we have demonstrated (Chapter 5), proxy-style mechanisms already find expression in several areas of international law, including in relation to the European Convention on Human Rights (ECHR). This is important because it means that further development of new proxy-style mechanisms involves incremental reform rather than a radical revolution in terms of international legal mechanisms and institutions.

9.4 Further Research

Our train of thought up to this point indicates that the representation of future generations in international law and institutions constitutes a meaningful political pathway to implement intergenerational justice and solidarity, both politically and legally. At the same time, theoretical considerations, combined with our case studies, show that, from this standpoint, there are still some open questions that require further research. We suggest some key areas of research desiderata below.

We based our effectiveness criteria on the objectives of the Paris Agreement (2015) and included as a criterion the extent to which mechanisms address sources of harmful short-termism (Chapter 4). This is clearly an area where further research is needed. One obstacle in tackling such research is the extent to which it is feasible to measure the effectiveness of institutions designed to make a difference over the long term. Yet, this challenge can be overstated. For example, if we consider the effectiveness of a UN Special Envoy for Future Generations, we can analyse the effectiveness of comparable institutions, such as the UN High Commissioners for human rights or refugees or special envoys created in the past in relation to other subject areas (Boston Reference Boston2016). This is not to understate the significant challenges of untangling the causes of short-termism, then analysing the potential impact of new international mechanisms. Assessing the latter may pose challenges because of the way such international institutions operate in conjunction with national institutions. Future research projects will need to be designed in ways that recognise these complexities. In designing such research projects, the theory of proxy representation elaborated in Chapter 3 – which breaks proxy representation down according to its representational, compliance, and norm-entrepreneurial functions – provides a valuable framework to help ensure that such research will be nuanced in terms of the context in which proxy representation takes place.

Another field where further research is needed is the proxy representation of nature and the international legal order. Many of the arguments justifying representation of future generations are synergistic with the arguments justifying representation of nature (Lawrence Reference Lawrence2022). Nevertheless, there are significant differences, with a range of complex questions to be addressed, including whether all of nature should be represented, or species, or ecosystems. A further challenge is whether a consensus can be developed to support global institutions to represent nature, given the range of world views concerning the relationship between human beings and non-human nature. Despite these challenges, this is a crucial area of research and reform, given the dependence of all human beings on nature and the strong bias in existing international institutions against the interests of non-human nature.

The case studies incorporated in this book are necessarily limited. Further case studies that could usefully test the normative framings proposed here include examining the possibility of representation of future generations through the processes and procedures of the Inter-American Court of Human Rights. As we have already observed, there is also a need to closely examine UN climate treaty processes, as well as non-state and substate climate law-making processes, as a vehicle for proxy representation of future generations.

A further serious gap in the existing research is the interaction between global mechanisms to represent future generations and Indigenous approaches. With other scholars, we suggest that such approaches could be a valuable source for the ICJ’s forthcoming Advisory Opinion on Climate Change (see Chapter 6; Wewerinke-Singh et al. Reference Wewerinke-Singh, Garg and Agarwalla2023).

Legitimacy not only plays a central role in democracies but also in global politics in general and in international law. We have also seen that the question of legitimacy is answered differently, depending on whether one looks at decisions from an input or output perspective. In terms of input legitimacy, we can ask, ‘Who must consent to or acknowledge a decision for it to be considered legitimate?’. If the decision implies long-term consequences, it seems logical to inquire about the – at least hypothetical – consent of those affected by these decisions in the future. Various strands of democratic theory explicitly develop this argument, such as deliberative democratic theory, which conceptualises future generations as discourse partners in democratic settings. The concept of ‘future legitimacy’ (Chapter 4) would encompass this situation under the concept of legitimacy, thus requiring the consideration of future generations within this fundamental concept for politics and law.

The same applies to output legitimacy. This is because the ecological consequences of political decisions, including long-term consequences for future generations, are currently not given sufficient attention. In this context, a modification or extension of the concept of output legitimacy is necessary in order to take the long-term ecological consequences of climate change for future generations into account. The concept of ‘future legitimacy’ implies a critique of such short-term thinking. Regarding output, decisions can only be considered legitimate if decision makers recognise the interests of future generations and take these into account in current decisions.

Researching future legitimacy would mean theoretically expanding the concept of legitimacy. It would require consideration of the narratives and argumentative figures through which this could happen, as well as the specific legal or political practices to which such an expansion could be applicable. An interdisciplinary perspective for such research is essential, as are connections to best practices in this field. Representing Future Generations contributes to this task. How this concept can be further developed in theory and practice, and thus politically and legally implemented, undoubtedly requires further research.

Science plays a central role in the current climate debate. Over recent decades, scientists (as individuals), scientific entities in the form of journals, institutions (such as universities and funding organisations), and organisations at the intersection of science and politics (such as the Intergovernmental Panel on Climate Change (IPCC) have all had an important impact on the climate debate. Scientists and their academic discourse have increasingly included links between the physical processes of climate change and its ecological impacts and impacts on human societies (Beck Reference Beck and Mahony2018). Combining both the natural and social sciences, a distinct transdisciplinary field of ‘climate science’ has emerged. In this field, researchers from various disciplinary backgrounds research the impacts of rising greenhouse gas emissions, their causes, and fair forms of burden-sharing and adaptation in sustainable climate policy.

Science has, in many ways, become a proxy for future generations in that scientists, by analysing and bringing the effects of climate change on future generations into the political discourse, have brought the distinctive interests of this group into focus. There has also been increasing research on the political role of science, especially climate sciences. Jürgen Habermas, in the 1970s, engaged with John Dewey and philosophical pragmatism, raising questions about how to conceptualise the relationship between science and politics. Dewey was sceptical of the idea that politics dictates both goals and means for scientific research and vice versa. Instead, he advocated for a deliberative experimental practice in which science and politics jointly agree on publicly meaningful steps. Such Dewey-inspired perspectives also play a significant role in public discourse and the self-perception of scientists and politicians. Others, such as Kowarsch and Edenhofer (Reference Kowarsch and Edenhofer2015), emphasise the distinctiveness of politics and science and argue for cooperative understanding between the two from a pluralistic perspective.

Behind the question of the relationship between politics and science in the face of climate change is also the question of whether, and to what extent, science can be understood as a form of proxy representation: who, exactly, is the proxy, and how does representation work? Science gains legitimacy, for example, not so much through law and morality, but by producing true or evidence-based insights. Must the criteria of legitimacy, therefore, be expanded? And in what forms does representation take place?

These important questions are only just beginning to be explored. Their urgency lies in the fact that climate discourse and the question of long-term consequences for future generations are undoubtedly heavily influenced by science – and will continue to be so in the future. Therefore, the crucial question of science as a proxy for future generations warrants further exploration.

After the fall of the Berlin Wall in 1989, political science entered a new phase of globalisation. This has posed challenges for various disciplines to rethink relationships between national and supranational actors. In the 1970s and 1980s, theories were often developed that did not adequately consider the relativity of social reality. Global structures were described as a rigid system of individual elements and primarily seen as the creation of nation-states. These theories are now outdated because the globalised world consists of different relations on various levels (Rosenau Reference Rosenau2003), including subnational and non-state actors, such as, cities, intergovernmental organisations (IGOs), non-governmental organisations (NGOs), industry, and industry associations.

In response to this insight, the concept of global governance emerged, in an attempt to develop new ways of understanding world politics in the era of globalisation. Since the 1990s, global governance has become an important paradigm in both theory and practice, aiming to describe and explain global structures and dynamics in an appropriate manner. Scholars such as Dirk Messner (Reference Messner, Siegelberg and Schlichte2000) and Michael Zürn (Reference Zürn2018) explicitly place their research within this paradigm. Global governance theories typically first provide a description of global relationships and their resulting structures using various disciplines. In a second step, they inquire whether and how this complex structure can be controlled. A governance understanding is thus developed which departs from the nation-state concept of governance and emphasises dynamic mutual influence. ‘Governance without Government’ has become the central message of this newly developed paradigm.

The background of this theoretical development is the observation that the process of globalisation is changing traditional forms of national governance. Governance is increasingly taking on a transnational character (Reder Reference Reder2009), altering the conditions for (transnational) governance in terms of both its origins and legitimacy. Three characteristics play a particularly significant role. First, there is a significant proliferation of actors at the global level involved in this governance action (Rosenau Reference Rosenau2003). With this increase in actors, debate about the legitimacy of transnational forms of governance also expands because legitimacy is generated through the involvement of diverse actors and not limited to the realm of formal political institutionalisation. Secondly, the forms of control have also multiplied. Transnational governance action is therefore referred to as governance, rather than government. This means that numerous actors (private and public institutions, as well as individuals) exert influence, resulting in control structures that aim for a balance of influencing factors. This has been evident in the global climate regime which features not just governments but also industry and industry associations, NGOs, and subnational actors, such as cities (Kuyper et al. Reference Kuyper, Linnér and Schroeder2018). These structures cannot be captured by the traditional concept of government.

In the face of this analysis, global governance implies less a direct control of political processes by institutions and more a complex system of influence and regulation arising from the plural interaction of different actors: ‘Governance is the totality of the numerous ways in which individuals as well as public and private institutions regulate their common affairs. It is a continuous process through which controversial or different interests are balanced, and cooperative action can be initiated’ (Commission on Global Governance 1995). World politics can only be interpreted as a multilevel system, with special consideration given to the multitude of actors and mechanisms.

Earth Systems Governance emerged as an interdisciplinary project in the early 2000s, in an effort to bring together physical scientists working on the science of earth systems with social scientists to examine how global governance (and, indeed, governance at every level) could be brought into line with the needs of the ecosystem (Biermann Reference Biermann2007). The idea was to bring together social sciences analysing how human beings respond to Earth system transformation, with the aim of steering human development in a way that ensured ‘safe’ co-evolution with natural processes (Biermann Reference Biermann2007). From the start, inclusiveness – including the participation of non-state actors – was an essential element of this project (see Bierman et al. Reference Biermann2019; Earth System Governance, ESG 2024).

The impact of environmentally harmful behaviour on future generations provides a good example to illustrate the global dimension of politics and the multiplication of actors beyond the nation-state (Kuyper et al. Reference Kuyper, Linnér and Schroeder2018; Kuyper & Bäckstrand Reference Kuyper and Bäckstrand2016; Angstadt & Betsill Reference Angstadt, Betsill, Rajamani and Peel2021). From this perspective, the representation of future generations can be understood as one element of a sustainable global governance strategy. Proxy representation of future generations can both be a counterbalance to state governance and take forms constituted by states (such as a UN Special Envoy) and also be outside the state, such as NGOs or the IPCC (science as representation of future generations). More research is clearly needed on the potential interactions between proxy representation of future generations at different levels of governance, and also proxy representation of non-human elements of nature.

The multilateralism expressed in these theories, both in theory and practice, has come under significant pressure in recent years. Inward-looking nationalist-oriented political forms are on the increase worldwide. This has been accompanied by a rise in authoritarian states that seek to act more hegemonically than multilaterally. In many deliberatively oriented forms of multilateral cooperation, this trend continues to be clearly felt, with a political retreat to national issues. However, the considerations outlined in this book clearly show that sustainable attention to future interests should – and, indeed, can only – be globally oriented in tackling the global ecological crisis of which climate change is a part.

The interests of future generations should, in theory, be incorporated in decision-making by the state. But where this ‘mainstreaming’ does not happen, the interests of future generations can be taken up by a range of non-state or substate actors, including IGOs, NGOs, and scientists. Representing Future Generations has only begun to scratch the surface of the full range of possibilities here. Recent scholarship on the involvement of non-state actors in the global climate regime demonstrates that there can be both advantages and serious difficulties in terms of climate action taken by substate or non-state actors, for example, in ensuring accountability for pledged action on climate change (Kuyper & Bäckstrand Reference Kuyper and Bäckstrand2016).

Unfortunately, multilateralism is also under pressure in the research sphere. Although international law as a research discipline stands against this in terms of its subject and spirit, this narrowing is felt in philosophy, for example. For years, publications on explicitly global issues have been declining, which is highly problematic. How multilateralism can be conceived of and justified in the face of complex global crises, how political science, law, and philosophical arguments about the future design of the multilateral order can be connected and strengthened, especially against the backdrop of a surging inward nationalism, is an urgent and important field of research. We envisage this book as a partial response. There is still much work ahead in designing and implementing mechanisms to represent future generations in the global legal order. Future generations deserve nothing less.