4.2.1 Democratic Legitimacy of International Institutions

It is crucial to proceed with a clear understanding of the interrelated concepts of legitimacy and effectiveness. In this book, we apply the following criteria to assess the democratic legitimacy of international institutions.

1. (a) Procedural (input legitimacy), involving inclusive/fair representation, accountability, and transparency and deliberation (discursive quality);

2. (b) Source-based (input legitimacy), involving expertise, legal legitimacy, tradition, and discourse; and

3. (c) Substantive (output legitimacy), involving effectiveness and equity.

The criteria are derived from Sylvia Karlsson-Vinkhuyzen and Antto Vihma (Reference Karlsson-Vinkhuyzen and Vihma2009: 405), Klaus Dingwerth (Reference Dingwerth2007, Reference Dingwerth2014: 1124–47), and Daniel Bodansky (Reference Bodansky1999).Footnote ⁴ The criteria for legitimacy of Karlsson-Vinkhuyzen and Vihma and Bodansky are for legitimacy tout court. Recognising that democratic principles are not the only basis for legitimacy, Dingwerth (Reference Dingwerth2007: 28, 34) argues convincingly that including deliberation strengthens legitimacy, as it involves greater participation of those affected and also entails a discursive quality of the rule-making process. Democratic legitimacy also meshes well with the rationale for proxy-style mechanisms of representation argued for in Chapter 3. The criteria set out earlier are tailored to the context of this book, which includes both the decisions of international tribunals – the ICJ (Chapter 6) and UN Rights of the Child Committee (Chapter 7) – and an international institution for future generations, a proposed UN Special Envoy for Future Generations (Chapter 8). Each criterion is explained later.

It is important to note that we use legitimacy to refer to normative, rather than sociological or subjective legitimacy. Normative legitimacy refers to whether a claim of authority is well founded in some objective sense. Sociological or subjective legitimacy refers to societal acceptance of authority as a sociological fact (Bodansky Reference Bodansky1999: 601; Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 409).

Legitimacy and effectiveness are distinct but strongly interconnected concepts. Under these criteria, on the one hand, substantial effectiveness (output legitimacy) contributes to democratic legitimacy. On the other hand, meeting the requirements of the various elements of procedural (input legitimacy) in turn contributes to effectiveness. Section 4.2.2 sets out specific criteria for the democratic legitimacy of international tribunals (a subset of the broader category of international institutions), before turning to deal with the effectiveness of both international tribunals and institutions for future generations more generally (Section 4.2.3).

The criterion of input or procedural legitimacy involves ‘inclusive representation’ and captures the idea that, for a decision to be democratically legitimate, all those affected by the decision should have a say in the making of the decision: the ‘all affected principle’ (AAP) (Ball Reference Ball, Dobson and Eckersely2006: 137; Goodin Reference Goodin1996: 835; Goodin Reference Goodin2007: 40; Pitkin Reference Pitkin1967: 209). Future generations cannot participate directly in decisions being made now in relation to climate change but can do so through a proxy. The proxy can make reasonable assumptions about the interests of future generations, referring to their vulnerability and including their need for the stable climate and functioning ecosystems upon which their welfare will depend (Vanderheiden Reference Vanderheiden2008: 129). In addition, while beyond the scope of this book, the mandate of a proxy should also reflect moral duties to ecosystems and non-human species (Hoffmann & Dijk Reference Hoffmann and Dijk2023: 79).

In the context of proxy representation of future generations, youth representation of future generations can enhance legitimacy. While the findings of empirical research on whether young people are more concerned about the future than older people are mixed (Gonzalez-Ricoy & Rey Reference Gonzalez-Ricoy and Rey2019: 7), the interests of young people overlap significantly more with the interests of persons not yet born than do the interests of older people. Moreover, climate change will threaten the interests of people who are now younger over a larger span of their lives than the interests of people who are now older. Reflecting this truth, young people have initiated school strikes around the world, as well as launching climate litigation, where they purport to speak not just on behalf of their own interests, but also on behalf of future generations (Donger Reference Donger2022).

The sub-criteria of ‘accountability and transparency’ are problematic in the context we are discussing because it would seem impossible to hold a proxy for future generations accountable to persons not yet born. Nevertheless, accountability can (at least indirectly) be achieved by ensuring that the proxy operates consistently with a mandate that reflects the interests of future generations (Lawrence Reference Lawrence, Cordonier Segger, Szabó and Harrington2021: 607). Moreover, the proxy could be held to account by non-governmental organisations (NGOs) having a role in monitoring the proxy’s performance. Transparency in the proxy’s activities is an important precondition for this monitoring to take place (Hale Reference Hale2008: 73).

The sub-criterion ‘deliberation’ reflects the view that the process of deliberation is an essential element of democratic legitimacy, according to theories of deliberative democracy (Dingwerth Reference Dingwerth2007: 23). As Dryzek and colleagues observe:

Deliberation is often seen as a vehicle for conveying citizen’s views to representative institutions, thereby ensuring their democratic nature (Saward Reference Saward2008). According to this approach, ‘deliberation’ must have particular attributes to be a touchstone of democratic legitimacy: it must be free of coercion and involve participants who give reasons for their proposals and are willing to critically assess others’ proposals oriented towards reaching a consensus based on reasoned argument (Dingwerth Reference Dingwerth2007: 24, 31).

In Chapter 3, we demonstrated that deliberative democracy is a central approach within the debate on democratic theory. By focusing on the institutionalisation of the process of opinion and will formation through various forms of (proxy) representation, this approach is promising in terms of its theoretical and practical implications for the institutional recognition of future generations. Deliberative democracy provides a strong justification for a proxy to represent the interests of future generations in the deliberative process.Footnote ⁵ Indeed, Dryzek and Niemeyer (Reference Dryzek and Niemeyer2008: 481) have argued in favour of a particular version of deliberation that involves articulating discourses rather than positions. If we consider proxies for future generations articulating the interests of persons not yet born, rather than representing them as such, this opens the possibility of a new mechanisms, such as a UN Special Envoy for Future Generations, meeting this criterion (see Chapter 8).

In Japan, social experiments in deliberative democracy have assigned particular groups to represent future generations (as of 2060) and others to represent existing generations (Hara et al. Reference Hara, Yoshioka, Kuroda, Kurimoto and Saijo2019: 1609; see also Uwasu et al., Reference Uwasu, Kishita, Hara and Nomaguchi2020). The groups were tasked with seeking consensus on policy priorities between these two groups. A fascinating result of these early studies is that negotiations between the groups resulted in a consensus in favour of a substantial number of policy priorities which favoured the interests of future generations (Hara et al. Reference Hara, Yoshioka, Kuroda, Kurimoto and Saijo2019: 1612). These studies suggest that human beings – when made fully aware of long-term impacts of policies – may be willing to support policies which benefit the interests of future generations. Moreover, representatives of future generations can negotiate on their behalf and creatively explore the possibility of finding policy settings which address both long- and short-term interests. Through this process, the aim would be to change the mainstream policy discourse to better reflect the interests of both current and future generations (Hara et al. Reference Hara, Yoshioka, Kuroda, Kurimoto and Saijo2019: 1615–16). In addition, proxy-style representatives of future generations could foster further similar types of social experiments and use the findings as a catalyst to move from such research experiments into real-life policy-making.

The criterion of ‘source-based legitimacy’ (input legitimacy) refers to information or knowledge that is seen as authoritative: expertise, legal legitimacy, tradition (including institutionalised processes which can be difficult to change), and discourses (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 410–11).Footnote ⁶ In terms of proxy-style representatives of future generations, ‘expertise’ could refer, for example, to the knowledge that a UN Special Envoy for Future Generations has (or could draw upon) in relation to the types of policies which are most likely to be effective in relation to protecting the interests of future generations. A well-resourced UN Special Envoy (with expert staff) would increase its legitimacy (expertise). Such a mechanism could also draw on scientific expertise in relation to the impact of climate change on future generations by relying on the authoritative reports of the Intergovernmental Panel on Climate Change (IPCC) and consulting with this body.

‘Legal legitimacy’ involves authority based on being in accordance with law, which at the international level involves institutions acting in a manner consistent with the treaty which has established them – which, in turn, derives its legitimacy from states’ consent to it (Bodansky Reference Bodansky1999: 604–5).

‘Tradition’ as a source of legitimacy can include, for example, the legitimacy of the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement (2015) regime as the legitimate form of intergovernmental governance to address climate change (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 410).Footnote ⁷ The case studies in this book involve innovative forms of proxy representation of future generations, involving new institutions (for example, the UN Special Envoy for Future Generations) and existing institutions taking on new roles (for example, the ICJ and the UN Committee on the Rights of the Child). The legitimacy of these forms may be enhanced by the existing legitimacy of the institutions in question; even the legitimacy of the new UN Special Envoy may be affected by the perceived legitimacy of similar UN special envoys.

The sub-criterion of ‘discourse’ can involve legitimacy being linked to particular discourses that are perceived as authoritative by relevant stakeholders. In this book, we draw on elements of discourses that already enjoy considerable support to justify proxy-style mechanisms for the representation of future generations, such as discourses relating to solidarity and sustainable development, which includes the principle of intergenerational equity. These discourses can help justify and bolster the legitimacy of new, proxy-style institutions for future generations (see Section 8.2). But some versions of sustainable development that prioritise development over sustainability can work in the contrary direction (see Section 8.5).

Concepts of sustainability and intergenerational equity have a particular legal form and thus constitute legal discourses that have been taken up both in global climate negotiations in the UN system and in climate litigation around the world. Indeed, policy-makers have started to come under pressure from legal action taken against governments using international tribunals – climate litigation – which gives rise to questions about the democratic legitimacy of such tribunals.

The criterion ‘substantive (output legitimacy)’ covers effectiveness (see further 4.2.3). In this book, we treat effectiveness as a distinct criterion but note that enhancing effectiveness can contribute to the overall legitimacy of a mechanism or institution through its effect on output legitimacy.

Equity as a sub-criterion reflects the idea that substantive legitimacy involves both contributing to solving a particular problem and improving justice. Given the context of extreme global inequality, it is crucial that mechanisms do not just change behaviour or solve a particular problem, but also enhance justice. The connection with effectiveness is that norms or mechanisms perceived to be both legitimate and fair are more likely to be complied with (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 413).

A weakness in the criteria for democratic legitimacy set out earlier is that they rest on deliberative practice only up to the present time, without in any way involving the practice or voices of future generations. This problem can be addressed by expanding our understanding of legitimacy. When political decisions are made that affect future generations, from a democratic theoretical perspective (which aims at the integration of all those affected by a decision), these decisions can only be considered legitimate if they appropriately consider the impacts on future generations’ needs or interests.Footnote ⁸ Legitimacy only makes sense, then, if it is understood as also including what we refer to as ‘future legitimacy’. This can also be justified from a normative standpoint: because, if decisions do not recognise and consider the needs and living conditions of future generations, they also disregard their vulnerability and cannot be considered legitimate from the standpoint of intergenerational justice.

The concept of ‘future legitimacy’ is underpinned by the concept that all generations are of equal value, thus requiring an assessment of legitimacy in terms of both current and future generations. Assessing a new UN Special Envoy for Future Generations against this benchmark would thus require an evaluation from the perspective of future generations. This, in turn, requires imagining that one is living decades in the future, in a world that is increasingly negatively impacted by climate change, and looking back to determine whether such a UN Special Envoy created now was sufficient to address the underlying threat posed by climate change to the international community and all its institutions, with all the consequences for intergenerational justice entailed in this threat.

An objection to this concept of ‘future legitimacy’ could be raised on the grounds that it would inherently prioritise the interests of future generations over current generations. To address this problem, it could be argued that the overarching legitimacy of a particular international institution must be based on the area of overlap between its legitimacy as traditionally understood – what we will refer to as ‘present legitimacy’ – and its ‘future legitimacy’. This would ensure that legitimacy was conceived in a manner which – in terms of its normative framing – did not prioritise either future or current generations’ interests but sought to maximise both.

4.2.2 Democratic Legitimacy of International Tribunals

International tribunals can be considered a subset of the broader category of international institutions. At a general level, therefore, the democratic legitimacy of such tribunals is related to the extent to which they fulfil the criteria (elaborated earlier) which apply to all international institutions. We will see, however, that these criteria require some adaptation to the specific functions that international tribunals perform.

The function of such tribunals is not singular, but includes the resolution of disputes, clarification of international law rules, and the promotion of justice (to which we will return in a moment). The functions of the ICJ are set out in its Statute – a treaty – which refers to the function of the Court as being to ‘decide in accordance with international law such disputes as are submitted to it’ (Statute of the International Court of Justice 1945: art. 38). At a formal level, the authority of the ICJ – and therefore its legitimacy – is derived from state consent to this treaty (Merrills Reference Merrills2011: 116–19). At first blush, it would seem that the Court should only apply international law and not develop it, but, on closer examination, the ICJ has several implicit functions. These include – as the principal judicial organ of the United Nations – supporting the UN’s overall goal of maintaining peace and security and settling international disputes ‘in conformity with the principles of justice and international law’ as expressed in the Charter of the United Nations (1945: art. 1(1); Giladi & Shany Reference Giladi, Shany, Espósito and Parlett2023: 107).Footnote ⁹ A further implicit function is the role of the Court in developing, not just applying, international law (Giladi & Shany Reference Giladi, Shany, Espósito and Parlett2023: 107). Indeed, commentators point out that the ICJ plays a much more activist role than is apparent from looking its Statute (Bogdandy & Venzke Reference Bodandy and Venzke2013: 52–7). Thus, where international law rules are unclear, the ICJ plays an important law reform role through interpreting rules in a particular direction or even further developing rules in a way that allows international law to adapt to new circumstances, in a manner extending well beyond the role of the Court as described in its Statute (Tams & Tzanakopoulos Reference Tams and Tzanakopoulos2010).

Our argument is that, where international tribunals perform this function, courts such as the ICJ should undertake this task by applying a normative framework, according to which the role of the court – whatever other functions it has – should be the promotion of justice, extended to include intergenerational justice.Footnote ¹⁰ Thus, the first prong of our argument is that the effectiveness of the ICJ rests on the extent to which the tribunal acts to promote justice, extended to include intergenerational justice. This rests on the argument that furthering justice is an implicit goal of the Court. As we have seen, furthering equity or justice is a criterion for assessing output legitimacy, which involves examining closely the function or goals of the particular institution. Importantly, this is also a criterion for effectiveness, given this has been defined as including equity (see text described earlier).

In making this argument, we note that this does not preclude international tribunals also playing a key role in promoting other values, such as the resolution of disputes and the facilitation of trade. Our argument is that international tribunals ought to promote justice and, thus, protection of the most vulnerable groups. This rests on the fact that the international community has accepted in the Charter of the United Nations (1945: art. 1(3)) and a raft of global human rights instruments, including the Universal Declaration of Human Rights (UNGA 1948), the idea that all people, regardless of when and where they are born, are entitled to human rights (Beyleveld, Düwell & Spahn Reference Beyleveld, Düwell and Spahn2015; Lawrence & Köhler Reference Lawrence and Köhler2018: 645–46). It flows from this that the international legal order should promote justice defined as ensuring the protection of human rights (Buchanan Reference Buchanan2004; Ratner Reference Ratner2015).

If one accepts that the international legal order should promote justice defined as protection of human rights, it follows that the legal order should also promote intergenerational justice, based on the premise that the entitlement to human rights is both universal and extends into the future (Caney Reference Caney and Humphreys2009).Footnote ¹¹

To make the further argument that international tribunals ought to be democratically legitimate, we contend that several specific criteria must be met. These correspond with the general procedural (input legitimacy) criteria outlined earlier, which involve inclusive/fair representation, accountability, and transparency and deliberation (discursive quality). These criteria are modified to consider the context of international tribunals and the need to be responsive to the interests of future generations.

Thus, as a subset of all international institutions, international tribunals ought to be democratically legitimate and act on behalf of the people, the demos. In addition, the demos must be extended to include both current and future generations. Acting on behalf of the demos requires both:

• impartiality and independence, in terms of ensuring procedural fairness in relation to court/tribunal processes; and

• responsiveness to the demos, involving transparency, deliberation, and participation, including the involvement of affected individuals in the particular processes (von Bogdandy & Venzke Reference Bogdandy and Venzke2014: 151–2). (As we shall see in the case studies on international tribunals, this involves responsiveness to the interests of future generations through proxy-style procedural mechanisms.)

In addition, international tribunals must meet the requirements of output legitimacy (see further).

The content of these further requirements of democratic legitimacy in the context of international tribunals are drawn from principles developed in Western Europe under the Treaty on European Union (TEU) (EU 2008; Bogdandy & Venzke Reference Bogdandy and Venzke2014: 136 et seq.). These rules emerged through extensive deliberative processes involving democratic states over 20 years. Prima facie, this would seem open to criticism as being a narrowly Eurocentric approach; the answer to criticism is that these rules happen to have emerged in Europe but could have emerged anywhere (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 136). Their validity stems from the strength of the deliberative process which gave rise to the principles and from the involvement of democratic states in this process (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 137). Furthermore, there is a strong link to the pragmatist methodology of this book, in that these elements of democratic legitimacy have been proven to work well in practice.

As mentioned earlier, international institutions need to meet criteria of current and future legitimacy. Assessing an international tribunal and its decisions against the benchmark of future legitimacy would require making an evaluation (for example, of an ICJ Advisory Opinion on climate change decided in 2025) from the perspective of future generations. This, in turn, requires imagining that one is living in a future world looking back to determine whether such a decision taken by the Court was sufficient to address the underlying threat of climate change (to the international community and all its institutions, including the Court), with the consequences for intergenerational justice entailed in this threat.

As pointed out earlier, the overall legitimacy of an institution would be found in the area of overlap between present and future legitimacy, thus ensuring the maximisation of future and current generations’ interests.

Bringing these thoughts together, the legitimacy of an international tribunal (both present and future) is dependent on the extent to which it performs its functions (that is, linked to its effectiveness) and the extent to which it promotes justice (extended to include intergenerational justice) are integral to these functions. There is a tension here in that, if a tribunal such as the ICJ ignored its Statute and proceeded to invent international law rules in areas where the rules are clear, it would potentially undermine its legitimacy. As Julius Stone (Reference Stone1954: 368) pointed out, tribunals such as the ICJ are dependent on retaining legitimacy in the sense of state consent. An overly creative ICJ would very quickly undermine its legitimacy in this sense.

On the other hand, the concept of future legitimacy underscores the importance of legitimacy from the standpoint of future generations. This is vital in terms of adjusting the concept to the threat climate change poses to the very existence of all institutions, including the ICJ. This provides an additional lens for viewing legitimacy, which is more responsive to the context in which the law-making process takes place. Thus, an ICJ decision that was too timid in relation to the threat of climate change would undermine both its present and future legitimacy.

We can now map out criteria for assessing the democratic legitimacy of international tribunals and see how these relate to the overarching criteria applicable to all institutions set out earlier (Section 4.2.1). Thus, for the purposes of this book, the democratic legitimacy of an international tribunal is assessed on the extent to which it:

1. 1. operates consistently with the treaty which establishes its mandate, to which states have consented – corresponding to the general criteria element of source based (input legitimacy) in the form of legal legitimacy;

2. 2. operates based on procedures ensuring the inclusive and fair representation of both current and future generations with, in particular:

   • impartiality and independence in terms of ensuring procedural fairness in relation to court/tribunal processes; and

   • responsiveness to the demos, involving transparency, deliberation, and participation, including the involvement of affected individuals in the processes, with future generations involved through proxy-style procedural mechanisms.

   • appropriately considers the impacts on future generations, their needs, or interests, thus ensuring future legitimacy. This involves assessing legitimacy in terms of both current and future generations, with an evaluation being made as to whether a decision made by an international tribunal today would be legitimate from the perspective of future generations. (This could include imagining a world decade from now that has been increasingly negatively impacted by climate change and looking back to assess whether a decision taken by a particular tribunal today was sufficient to meet the needs of intergenerational justice.) These elements correspond to the general criteria elements of procedural (input legitimacy) involving inclusive/fair representation, accountability and transparency, and deliberation (discursive quality).

3. 3. demonstrates expertise both in the form of legal expertise but also drawing on scientific knowledge relating to climate change – corresponding to the general criteria element of source based (input legitimacy) in the form of expertise; and

4. 4. demonstrates output legitimacy defined in terms of taking decisions that:

   • ◦ are effective both in terms of fulfilling the particular functions of the international tribunal as set out in its statute/mandate and contributing to strengthening international law rules relating to climate change and their implementation (see Section 4.2.3); and

   • ◦ enhance substantive justice, extended to include intergenerational justice – corresponding to the general criterion of substantive (output legitimacy), involving effectiveness and equity applicable to all international institutions.

The case studies in this book on the ICJ and UN Committee on the Rights of the Child (see Chapters 6 and 7) demonstrate how the normative framework argued for in Part I can play a positive role in promoting intergenerational justice without undermining the legitimacy of the particular tribunal. These case studies demonstrate that there are possibilities for maximising current and future legitimacy.

4.2.3 Effectiveness

Caney (Reference Caney, González-Ricoy and Gosseries2016: 137–40) points out that short-term policies are not harmful per se; on the other hand, short-termism can be extremely harmful in relation to problems like climate change, where it involves shifting the burden to the next generation. He observes that assessing the effectiveness of future-oriented institutions involves making a judgement about the extent to which such institutions overcome causes of wrongful short-termism; this is his key criterion for effectiveness (Caney Reference Caney, González-Ricoy and Gosseries2016: 140). He also notes that the causes of harmful short-termism involve institutional and human psychological factors. On the institutional side in democracies, there is the harmful impact of short electoral cycles which induce politicians to focus on the short term, while ignorance of the future impact of policy-making is compounded by the dominance of lobbyists pushing short-term, sectoral interests. In addition, there are short-term media cycles, auditing processes, and performance indicators (Caney Reference Caney, González-Ricoy and Gosseries2016: 137–46).

The climate crisis is an example of a creeping environmental problem where incremental impacts make it harder to galvanise support for decisive, responsive action. This is compounded by the lack of identifiable future victims – which are usually represented by abstract statistics. Psychological factors involving positive illusions, procrastination, and self-interest also play a role. Caney sensibly points out that institutional reform proposals need to seek to reduce the impact of underlying negative psychological factors, or at least prevent these factors from impacting the policy-making process. Where possible, he points to the possibility of harnessing these factors to promote long-term interests (Caney Reference Caney, González-Ricoy and Gosseries2016: 145–6).

Increased input legitimacy can result in greater effectiveness, which can, in turn, contribute to legitimacy. Karlsson-Vinkhuyzen and Vihma (Reference Karlsson-Vinkhuyzen and Vihma2009) define the concept of effectiveness as having two dimensions. First, effectiveness refers to the extent to which a norm, rule, or institution achieves a specified objective or goal in relation to a particular norm or institution. Second, ‘problem-solving effectiveness’ refers to how a particular norm can impact behaviour where this is required to solve a particular problem (Karlsson-Vinkhuyzen & Vihma Reference Karlsson-Vinkhuyzen and Vihma2009: 405).

We saw earlier that the output legitimacy criteria used here involve an effectiveness criterion defined in terms of how well the particular institution functions in meeting the goals set out in its mandate (as interpreted by the particular tribunal and its constituencies, in the case of international tribunals), as well as how well it contributes to the strengthening and implementation of international law rules relating to climate change. This has synergies with a goal or functions approach to assessing the effectiveness of international tribunals (Shany Reference Shany2012, Reference Shany2014). In the ICJ Advisory Opinion (Chapter 6) and UN Committee on the Rights of the Child (Chapter 7) case studies, this effectiveness assessment also factors in how well the tribunal addresses the questions put to it by the parties (in the first case) and by the UN General Assembly (in the second case).

The international law rules on climate change are mostly contained in the UN climate treaty regime and in customary international law. Turning to the former, we use the Paris Agreement (2015) as a yardstick or goal for measuring effectiveness in the climate change context. The objectives of the Paris Agreement are set out in Article 2(1) as follows:

In summary, the Paris Agreement objectives include the 1.5°C/2°C mitigation goal, adaptation, climate resilience, and sustainability, plus financial flows consistent with low emissions/climate-resilient development. The Paris Agreement objectives are to be read in conjunction with Article 3 of the UNFCCC (1992), which includes the principle of equity – including by implication intergenerational equity, albeit expressed vaguely.Footnote ¹²

Importantly, for our purposes, effectiveness is understood as including not only just the formal international law rules but also the potential for these rules to flow on to influence behaviour, of both states but non-state actors. This approach is consistent with Steinar Andresen’s concept of effectiveness, that is broken down into ‘output’, ‘outcome’, and ‘impact’ elements, which can sharpen analysis in this area (Andresen Reference Andresen, Rajamani and Peel2021: 990). The ‘output’ involves the formal rules of a regime. In contrast, the ‘outcome’ variable examines actual behaviour. ‘Impact’ refers to the problem-solving ability of a regime. Our case studies assess the outcome and impact of the mechanisms/institutions, while recognising the methodological challenges in drawing conclusions about causal links (Andresen Reference Andresen, Rajamani and Peel2021: 991).

Thus, in the case studies of proxy representation set out in Part III, we evaluate particular international mechanisms in terms of their effectiveness, defined in accordance with:

1. 1) how well they promote justice (including intergenerational justice) and the values of inclusiveness, solidarity, and addressing vulnerability (a normative dimension);Footnote ¹³

2. 2) how well they contribute to strengthening international law rules relating to climate change and their implementation, thus contributing to the modification of the behaviour of states and non-state and substate actors in the direction of these rules; and

3. 3) in relation to international tribunals: how well they perform the functions specified in their particular statute both generally and in relation to the specific mandate for the particular case in question; for example, the UN General Assembly mandate for the ICJ Advisory Opinion on Climate Change (see Chapter 6) or the scope of the complaint, in the case of the UN Committee on the Rights of the Child (see Chapter 7).

Element (b) is, in turn, defined in accordance with the Paris Agreement 1.5/2°C overarching mitigation target, adaptation for current and future generations, climate resilience, low greenhouse gas emission development, and financial flows consistent with low emissions/climate-resilient development. It also includes the extent to which the mechanism strengthens customary international law rules relating to state responsibility for climate-related harms, involving liability, restitution, and compensation.Footnote ¹⁴ While these rules are backward looking, they are nevertheless relevant in terms of future generations’ interests. This is because strong rules in this area can provide benefits for current generations but also incentives for the mitigation of greenhouse gas emissions, with positive consequences for future generations, and can also help fund adaptation efforts, both now and in the future.

Furthermore, we argue (see Section 6.5) that the ‘principle of harm prevention’ involving state responsibility for anthropogenic climate change-related harms should be extended to include harm to future generations. There are tensions here because some states are likely to be opposed to such an extension because it would conflict with their view that they should not be held responsible for past greenhouse gas emissions (Section 6.5). This highlights the fact that two of our case studies (Chapter 6 on the ICJ and Chapter 7 on the UN Committee on the Rights of the Child) involve mandates that combine ‘future-related’ elements with other ‘non-future related’ elements; for example, relating to international legal obligations for ongoing climate change related harm, and/or responsibility in relation to harm which has already occurred. This entails the particular tribunal balancing the interests of current and future generations, which will not always push in the same direction; this complicates the evaluation of effectiveness. This complication is not an issue in relation to the case study on the proposed UN Special Envoy for Future Generations (Chapter 8) because this involves a ‘future-oriented’ mechanism with a mandate envisaged to have a particular focus on future generations’ interests. The UN Special Envoy will most likely have a mandate to highlight such interests and feed this information to decision-makers who will have the task of balancing current and future generations’ interests.

We acknowledge that the functions of the ICJ, as set out in its Statute, and the UN Committee on the Rights of the Child are not to protect the climate system. However, as we demonstrate in the case studies, each tribunal has been tasked with examining international law rules broadly (in the case of the ICJ) and more narrowly (in the case of the UN Committee on the Rights of the Child)Footnote ¹⁵ in terms of their interaction with climate change. Further, given our argument that international tribunals should interpret international law rules in a manner that furthers justice (including intergenerational justice), we assess the extent to which these international tribunals, consistent with their particular mandates, interpret international legal rules in a manner which contributes to making more effective the substance and implementation of international law rules relating to climate change in a manner which furthers justice.

At this point, it is important to note the strong connection between democratic legitimacy and effectiveness. International tribunals that are democratically legitimate are more likely to be effective. Legal systems rely on subjects of the law accepting a court’s decisions to fulfil their functions (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 154). Democratic processes usually promote acceptance (Bogdandy & Venzke Reference Bogdandy and Venzke2014: 155); for this reason, enhancing the democratic legitimacy of international tribunals tends to enhance their effectiveness.

This is consistent with scholars’ observations that international institutions that are perceived to be legitimate are likely to be more effective (Franck Reference Franck1990; Stokke & Vidas Reference Stokke and Vidas1998). Thus, we consider effective decisions of an international tribunal to be decisions which fulfil the particular functions of the tribunal or court as set out in its statute/mandate, as interpreted by the international tribunal and key constituencies. Given the climate change context of this book, we include the additional criterion that effectiveness is measured in terms of the contribution made by the decision of the international tribunal to strengthening international law rules relating to climate change.

The effectiveness of the decisions of these international tribunals needs to be considered broadly, in that their decisions interact with national law in a variety of ways. Thus, an ICJ advisory opinion (which is non-binding) might, for example, delineate principles of international environmental law which are then taken up by a national court in a climate litigation case and/or made binding or operative within a particular national legal order through incorporation in legislation. While under-researched to date, anecdotal evidence suggests that ICJ rulings do feed into professional discourses at both the national and global decision-making level (Giladi & Shany Reference Giladi, Shany, Espósito and Parlett2023: 117).

As we noted earlier, assessing the effectiveness of future-oriented institutions also encompasses the extent to which they address the causes of harmful short-termism. Thus, in evaluating whether institutional proposals to represent future generations contribute to achieving the Paris Agreement goals set out above, we take a broad approach to assessing how these particular goals will be furthered, including through addressing sources of far-ranging, harmful short-termism in relation to climate policy (including institutional and social psychology factors). One significant cause of harmful short-termism is lack of awareness of the long-term impacts of policies. Proxy-style institutions can play a helpful role in combating harmful short-termism by raising awareness of the long-term impacts of laws and policies. Global proxy-style institutions can also have a catalytic role in putting pressure on states to adopt appropriate institutions at the national level. These various dimensions are discussed in relation to each of the case studies.

As observed in Chapter 1, the ultimate effectiveness of proposed new institutions for future generations cannot be judged in advance. As Jonathan Boston cautions, designing institutions for future generations is ‘as much an art than a science’, given the complex causal factors involved in accounting for short-termism (Boston Reference Boston, Linehan and Lawrence2021: 96). Nevertheless, new proxy-type mechanisms for representing future generations have the potential to put pressure on existing institutions to better incorporate the interests of future generations in their decision-making processes. The increasingly catastrophic impacts of climate change – and mounting evidence that the status quo is clearly not working – suggest that experimental proxy-style institutional mechanisms to represent future generations should urgently be pursued, even where the likelihood of success is slim. Given the intergenerational dimension, it is vital to consider effectiveness in terms of both the probability and magnitude of success. Importantly, the strategy of exploring proxy-style mechanisms can be pursued in parallel with efforts to mainstream future generations’ interests in policy- and law-making.

4.2.4 Accessibility and Political Sustainability

In this context, accessibility refers to whether and how likely it is that we can get from ‘here’ to ‘there’ (Caney Reference Caney, González-Ricoy and Gosseries2016: 142).Footnote ¹⁶ In other words, is a proposal likely to be implemented in the real world? Political sustainability refers to whether a proposed new institution can be sustained into the future – obviously a precondition for its effectiveness (Caney Reference Caney, González-Ricoy and Gosseries2016: 141). Here, factors include whether the institution is embedded in a constitution, for example, thus making it more difficult to dismantle. At the international level, this could include whether the institution is embedded in a global treaty – which can create some resistance to its being rapidly undone. The structure of finances is also crucial in this respect, in terms of whether an institution is vulnerable to budget cuts. This risk can be lessened, for example, if the budget necessary for a particular future-oriented institution is part of the core budget of an international organisation.

5.2.1 Case Study 1: Children

The vulnerability of children began to find expression in the international legal order in the years just after the First World War, with the International Labour Organization (ILO) adopting conventions that involved the first steps in regulating child labour.Footnote ² The Second World War inflicted acute suffering of children, which led to the 1959 UN Declaration of the Rights of the Child (UNGA 1959), the predecessor to the UN Convention on the Rights of the Child (CRC) (1989). In the decades after the Second World War, we see a progression from a sentimental view of the child as an object that deserves special protection to a view of the child as an imminent adult, possessing autonomy and rights deserving of protection, as reflected in the CRC. Anna Holzscheiter (Reference Holzscheiter2010: 2) eloquently expresses this transformation in perceptions of children from ‘mute and helpless objects of charity and protection’ to ‘speaking and, accordingly, also “reasoning” social agents who should be actively involved in the shaping of their own destiny’. Crucially for the first time in international law, the CRC enshrined the right of the child to express her or his own views, to be listened to, and to participate in decisions. Thus, under Article 12(1) of the CRC, state parties ‘shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child in accordance with the age and maturity of the child’. In addition, Article 12(2) gives children the opportunity to be heard in judicial or administrative proceedings affecting them, either directly or through a representative.Footnote ³

Given these provisions, it is ironic that children were given virtually no voice in the CRC negotiations.Footnote ⁴ Indeed, it is only since 1999 that the UN Committee on the Rights of the Child has taken steps to consult with children in its deliberative processes (Holzscheiter Reference Holzscheiter2010). The Committee undertook an extensive consultative process involving children and youth organisations leading up to General Comment No. 26 on children’s rights and climate change adopted by the Committee in 2023 (UN Committee on the Rights of the Child 2023).

The negotiation of the CRC and its widespread ratification (with the notable exception of the United States) can be interpreted as the gradual globalisation of a Western concept of childhood. The concept of childhood as a separate phase of life is recent, emerging in nineteenth-century practices of the European bourgeoisie, and with roots in philosophical, economic, and medical advances dating from the sixteenth century (Holzscheiter Reference Holzscheiter2010: 99). Concepts of unrestricted paternalism – going back to Roman times – were gradually replaced during the Enlightenment period by a concept of childhood as a protected sphere and the perception that children deserve special assistance because of their vulnerability. Childhood thus evolved into a liberal concept comprising love, care, education, and play, with the state intervening to ensure the child’s protection (Fass Reference Fass2011: 19). Crucial in the discourse underpinning the push for the CRC was the articulation of children’s ‘needs and rights in universal terms’, meaning that not just privileged children, but all children in a particular nation, should be ‘brought up to a basic level’ and, internationally, that all children on a global level were equally entitled to basic rights (Fass Reference Fass2011: 19).

The widespread suffering of children in the Second World War, both as victims of warfare and famine, forms a crucial part of the backdrop of the negotiation of the CRC. Holzscheiter, in her detailed study of the dominant discourses in the negotiation of the CRC, observes that ‘the image of the child as an especially vulnerable (if not the most vulnerable) and innocent part of humanity was prevalent all throughout the drafting process’ (Holzscheiter Reference Holzscheiter2010: 161). Children were characterised as being vulnerable to a range of immoral harms inflicted upon them by adults, as is evident in this particularly emotive statement from one of the CRC negotiators. ‘They were the children of famine, malnutrition and illiteracy, the children of millions of refugees, victims of armed conflict and concentration-camp inmates who were counting on international solidarity to help them out of their desperate situation.’ (Konate (Senegal) ECOSOC, 1985: para 113 (Holzscheiter Reference Holzscheiter2010: 161).

In this statement, we can see a strong link between solidarity and vulnerability with clear parallels to the normative framing of this book. There are strong parallels between warfare exposing the vulnerability of children and climate change similarly exposing the vulnerability of children (Schweiger & Graf Reference Schweiger and Graf2017).

Interestingly, during the CRC negotiations, promoting children’s rights was framed not in terms of individual human rights but, rather, in terms of the moral rights of younger generations against adult humanity as a whole, thus reflecting then-dominant welfarist and paternalistic discourses (Holzscheiter Reference Holzscheiter2010: 163).

An important strand of the discourse in the development of the CRC was the notion that progress, and development of the society, was inexorably linked to progressive education and progressive childhood (Holzscheiter Reference Holzscheiter2010: 21). So, the ‘development’ strand here included both the development of the individual and ensuring productive young citizens – combined with nationalism – as the key to a nation’s future (Holzscheiter Reference Holzscheiter2010: 19, 21). This was expressed through the idea of the ‘imminent child’; in other words, the idea of the child as a future adult, whose development should be advanced to ensure the advancement of humanity and civilisation, and who would possess a range of qualities (including being ‘morally and socially responsible’) that should be encouraged (Holzscheiter Reference Holzscheiter2010: 166).

Tensions emerged between individualistic, Western concepts of children’s rights, and those of countries in Asia and Africa (that asserted that protection of children should be conditional on freedom of religion and cultural practices), which found expression in reservations being made to the CRC. Ratification of the CRC has also been accompanied by a discourse of perceiving human rights obligations in the CRC as consistent with Islam (George Reference George, Quataert and Wildenthal2019: 163–82).

In summary, then, the core normative concepts that underpin the CRC regime include a universal idea of all children being entitled to basic rights, with children deserving of their own treaty and committee by reason of their vulnerabilities. In addition, the CRC encapsulates an idea of autonomy – albeit on a sliding scale – as children grow in maturity. It also incorporates the idea of the state intervening to ensure protection of the child; for example, against abusive parents (see Article 19; Gutwald & Reder Reference Gutwald and Reder2023). In addition, protection of children is seen as interdependent with protection and flourishing of the family. Indeed, the whole treaty rests on the bedrock that all children are equally entitled to enjoy human dignity. Further, the flourishing of societies as whole requires the protection of children’s rights: children are conceived of as citizens of the future.

In 2011, an Optional Protocol to the CRC on a Communication ProcedureFootnote ⁵ was adopted, which entered into force in 2014 (Optional Protocol to the CRC 2011). This instrument allows for individual complaints to be brought to the UN Committee on the Rights of the Child, where parties to the CRC fail to meet their obligations. It is clear from the preamble of this protocol that the instrument aims to ‘enhance the implementation of the Convention’ (Optional Protocol to the CRC 2011: preambular para 10) and complement national mechanisms which ‘enable a child whose rights have been violated to have access to effective remedies’ (Optional Protocol to the CRC 2011: preambular paras 8, 10). The views of the Committee are expressed in the form of recommendations and are not strictly binding on the state involved. In practice, however, the Committee has taken on a quasi-judicial role, with its published case law and General Comments being highly influential in terms of how state parties to the CRC interpret and implement the treaty (Tomuschat Reference Tomuschat2014: 267, 269). Importantly, Article 5 of the Optional Protocol allows for communications to be brought ‘by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth … in the Convention’ or optional protocol relating to the sale of children, optional protocol on child prostitution and child pornography or optional protocol on children in armed conflict. Article 5(2) further provides that ‘where a communication is submitted on behalf of an individual or group of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent’. These provisions, read together, seem to open the possibility of proxy-style representation in which the person bringing the claim on behalf of children does not have their consent but makes reasonable assumptions about their interests.

The case of Sacchi et al. (further analysed in Chapter 7; see also Dijk Reference Dijk2021a), which involved a claim brought by a number of young people, illustrates how these provisions operate in the climate context. In the petition in that case, the petitioners pointed to actual harm they were suffering because of climate change impacting their rights to health, culture, and other rights under the CRC. Some of the language in the petition can be construed as framing the claim on behalf of all children impacted by climate change now and in the future, thus implying that, in this respect, the petitioners were acting as proxy representatives for future children, in addition to acting on their own behalf.

5.2.2 Case Study 2: Disabled Persons

The movement to develop a discrete convention setting out the rights of disabled persons was linked to an understanding that disabled persons included some of the most vulnerable members of society and that, globally, most of these persons lived in developing countries (Kayess & French Reference Kayess and French2008).Footnote ⁶ In 2001, Mexico spear-headed a push to negotiate a disability human rights convention; the issues were framed in terms of social development, with an argument that the World Health Organization’s Millennium Development Goals (MDGs) ignored this particular group. Support from developing countries was crucial in this campaign (Kayess & French Reference Kayess and French2008: 17). The UN Convention on the Rights of Persons with Disabilities (CRPD) (2006)Footnote ⁷ was the result of a long process, beginning with the United Nations’ 1981 World Programme of Action concerning Disabled Persons and involving various Reports of Special Rapporteurs on Disability pursuant to Commission on Human Rights resolutions in 1998, 2000, and 2002 (Office of the Commissioner for Human Rights (OHCHR) 2010: 12).Footnote ⁸

The development of the CRPD coincided with an approach that conceptualised the needs of disabled persons in a human-rights (rather than a medical or welfare) framework. The official view is that the Convention did not create human rights in relation to disabled persons; rather, it confirmed that disabled persons enjoyed existing, well-established human rights on equal terms (OHCHR 2010: 20). However, this view does not stand up to scrutiny and the Convention did, in fact, create several new rights (OHCHR 2010: 32).

The key normative underpinnings of the CRPD and its individual complaints procedure involve the concepts of human dignity, individual autonomy, effective participation and inclusion, equality of opportunity, gender equality, respect for difference, and accessibility, as set out in Article 3 of the Convention – which one observer described as the Convention’s ‘moral compass’ (Kayess & French Reference Kayess and French2008: 27). The notion of the inherent human dignity of all persons is reflected in Article 1 of the Convention, which states that its purpose is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’ (emphasis added).

Interestingly, the CRPD does not contain a definition of disability. Rather, it acknowledges that disability is an evolving concept which, in the words of the Preamble, ‘results from interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’ (CRPD 2006: preambular para 5). Article 1 of the Convention refers to persons with disabilities as ‘include[ing] those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. Thus, the Convention embodies a social rather than functional notion of disability equated with ‘functional limitations’.Footnote ⁹ An advantage of this approach is that it places responsibility on the state and society to remove barriers and ensure the enjoyment of universal human rights, rather than placing responsibility on the individual. In addition, under this approach, recognition of difference becomes the ‘gateway’ to accessing human civil rights rather than segregation and stigmatisation (Morris Reference Morris2001: 1).

Traditional notions of vulnerability focused on the individual’s impairment, often linked to the individual’s responsibility to manage an impairment and accept blame for its consequences. In contrast, the social/human rights model of disability reflected in the CRPD (as something that arises from the interaction of impairment with social barriers) goes hand in hand with the notion that it is the responsibility of the state and society to remove barriers and ensure universal rights enjoyment.Footnote ¹⁰ While disability rights scholars and activists have been reluctant to invoke ‘vulnerability’ – lest it reinforce disempowerment and denial of the rights of people with disabilities (Clough Reference Clough2017: 469) – the argument that a specific treaty focusing on disabled persons’ particular needs and the corresponding obligations of states has gained traction (Morris Reference Morris2001). A strategic dimension in this debate is the argument that the efforts of non-governmental organisations (NGOs) advocating for the rights of disabled persons could be channelled into one treaty regime, rather than being diluted across the gamut of UN human rights treaty mechanisms (Quinn & Gerard Reference Quinn and Degener2002: 297).

The development of the CRPD was characterised by what is regarded as the most intense participation in history by civil society groups (overwhelmingly of persons with disability and disabled persons’ organisations) in the development of any human rights treaty. The rejection of paternalism (for example, in the form of coercive treatment) by disabled persons was reflected by their demands (individually or through representative organisations) to participate in the negotiation process (de Beco Reference De Beco and de Beco2021), and also by substantive norms in a global instrument that reflected rights to participation. These demands were captured well in the credo ‘nothing about us without us’ which can be considered the ‘virtually universal claim of the disability rights movement internationally’ (Kayess & French Reference Kayess and French2008: 12). Interestingly, this credo might also be considered a variant of the All Affected Principle (AAP) (see Chapter 2), which constitutes a golden thread running through theories of democracy.

The CRPD represents the interests of disabled persons by establishing a strong and comprehensive normative framework in terms of specific rights of disabled persons and corresponding obligations on governments to ensure that these rights are respected. The obligations are contained in a treaty that is binding under international law, thus moving beyond the earlier non-binding (soft law) instruments. In addition to this normative framework, which provide the basis for parties to the Convention to implement their own national legislation and policies related to disabled persons, an individual complaints mechanism was established by the Optional Protocol in 2006 and entered into force in 2008.Footnote ¹¹ The individual complaints mechanism allows an individual disabled person in a state party to the CRPD to bring a claim against their government to the Committee on the Rights of Persons with Disabilities in Geneva for adjudication (OHCHR) (2024). Prior to bringing such a claim, the claimant must exhaust possible remedies in the particular state. Decisions of the Human Rights Committee in response to such claims are not legally binding, but are, nevertheless, considered highly persuasive: we can point to examples where member states have changed their legislation policies in response to such decisions; for example, Noble v Australia (CRPD 2016).Footnote ¹²

It is important to note that this committee was not established with the aim of creating a representative institution for disabled persons in the sense of providing a forum for disabled persons to feed into policy- or law-making decisions. Rather, the overarching focus of the committee is implementation and compliance: with a mandate to hear individual complaints in terms of violations of the CRDP and to consider national reports on individual states’ progress in implementing the Convention. Nevertheless, to the extent that the individual complaints mechanism involves articulating disabled persons’ interests, it does have a broader representative proxy compliance function (as defined in Chapter 2). This broader representative function is also underscored by the composition of the Committee itself. Article 34(4) invites states to consider the participation of experts with disabilities; to date, almost all members of the committee have been people with disability. In addition, Article 33 directs states to involve people with disability and their representative organisations ‘fully in the monitoring process’.Footnote ¹³

5.2.3 Case Study 3: Women

In feminist research, and feminist philosophy, scholars have been thinking for four decades about whether, and to what extent, vulnerability is an appropriate category to address gender inequalities – ethically, as well as politically. Authors such as Judith Butler stand paradigmatically for this. In doing so, these researchers emphasise that the general-human, and at the same time, very concrete (bodily) vulnerability of all human beings is further amplified for women by social, political, or economic mechanisms: they are made into particularly vulnerable groups. This manifests itself in systematic discrimination against women in the workplace,Footnote ¹⁴ political life, and in the home in all countries around the world. While there have been some improvements in recent decades, women remain significantly under-represented in national parliaments.Footnote ¹⁵ Moreover, sexual violence against women remains an intractable problem across the world,Footnote ¹⁶ and occurs at alarming levels, even in wealthy countries such as the United States (Nussbaum Reference Nussbaum2015: 591) and Australia.Footnote ¹⁷ Against this backdrop, many feminist researchers have considered the extent to which group identity (being a woman) gives rise to a particular claim to representation to meet the inclusive and egalitarian ideal of democracy. Iris Marion Young (Reference Young2000) and Anne Phillips (Reference Phillips1993) have made seminal arguments in this regard, which might also be important for thinking about the international representation of women in legal institutions.

The international women’s movement emerged after the Second World War but had its origins in the late nineteenth century (Rupp Reference Rupp1998). In the post-war era, an international legal structure developed aimed at ending discrimination against women and furthering their empowerment. The International Covenant on Civil and Political Rights (ICCPR) (1966) and International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) prohibit discrimination against women (ICCPR 1966: art. 26; ICESCR 1966: art. 2 (3)). These obligations were further elaborated in the 1967 UN Declaration against Discrimination against Women, which proclaims that ‘discrimination against women is an offence against human dignity’ (UNGA 1967: art. 1).

In 1979, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) was adopted.Footnote ¹⁸ This Convention elaborates specific and binding obligations on states to eliminate discrimination against women in political, social, economic, and cultural fields, covering both civil and political rights (such as the right to vote, participate in public life, and retain/change their nationality, as well as the right to equality before the law, and freedom of movement) and economic, social, and cultural rights (such as the right to education, work, health, and financial credit).

CEDAW came out of the recommendation of the first UN Conference on Women convened in Mexico City in 1975 (UN 1976). At this conference, many countries argued that overcoming discrimination against women was required both by the normative demands of equal enjoyment of human dignity,Footnote ¹⁹ as well as the demands of development. Many countries at this conference argued that overcoming discrimination against women was inexorably linked to advancing social development more generally, both within national societies and internationally. Thus, the report of the conference stated that: ‘national and international development was not possible without the full participation of women’ (UN 1976: para 75). To this end, many countries argued that inequality between countries of the Global North and South needed to be addressed by constructing a New Economic Order as a precondition for advancing the condition of women (UN 1976: paras 66–94). Importantly, CEDAW embodies the concept of substantive – rather than merely formal – equality. In other words, striving for equality of outcomes is the goal and this can require affirmative action-type programmes, such as quotas (CEDAW 2004: para 7ff).

Framing issues of women’s rights as a development issue is likely to have had a substantive role in garnering support for CEDAW, with a substantial number of developing countries regarding full participation of women in the workplace as a precondition for economic development – albeit where ‘development’ is defined by men. Other factors were also clearly involved, including the internationalisation of the feminist movement through globalisation (Ishay Reference Ishay2004: 297).Footnote ²⁰

Importantly, some scholars have argued that creating a specialist international institutional framework devoted to women’s human rights carries with it the risk of creating human rights ‘ghettos’ in the sense of further marginalisation, particularly if the institutional bodies concerned have lesser resources than other human rights bodies dealing, for example, with racial discrimination, which seems to be the case (Charlesworth Reference Charlesworth and Cook1994: 59, 66). This contains an important lesson in terms of institutions for future generations: institutions must be properly resourced to avoid being token.

A particular international mechanism related to violence against women – Special Rapporteurs – seems to have had some modest success in this difficult area. From 1993 onwards, the UN appointed a succession of Special Rapporteurs on Violence against Women (OHCHR 2022). Their function has been to undertake country visits ‘to examine the situation of women in specific contexts and make recommendations for eliminating violence as well as its root causes; to receive individual complaints and transmit them to the governments concerned: and prepare thematic reports relevant to the mandate’ (Ertürk & Purkayastha Reference Ertürk and Purkayastha2012: 145). Yakin Ertürk and Bandana Purkayastha sum up well the value of the Special Rapporteurs’ work in implementing a mandate which ‘communicates the voices of the most vulnerable women and acts as a channel to access justice and accountability when national systems of justice are not well developed or when they fail to respond’ (Ertürk & Purkayastha Reference Ertürk and Purkayastha2012: 145). Yet, the immensity of the problem to be addressed remains, and serious problems of implementation continue (Ertürk & Purkayastha Reference Ertürk and Purkayastha2012: 145).

The individual complaints mechanism of CEDAW is based on the general principle that only individual women whose rights have been violated under CEDAW are permitted to bring communications. Nevertheless, as with the provision referred to above in relation to the CRC, an important exception is that communications can also be ‘submitted on behalf of individuals or groups of individuals, with their consent unless the author can justify acting on their behalf without such consent’ (CEDAW 1979: art. 2). Christian Tomuschat (Reference Tomuschat2014: 252) argues that the reference to ‘groups of persons’ represents a softening of the victim requirement – the requirement that a person bringing a claim must be a victim of the violation. This view is supported with reference to cases being brought where it was sufficient for groups of women to point to a ‘legislative act or a general administrative measure’ which impacted this group with ‘some kind of general discrimination’. Moreover, in proceedings against Austria, the CEDAW Committee overseeing the complaints mechanism concluded that the language of Article 2 was sufficiently broad to grant standing to a human rights organisation. In this case, a women’s rights organisation had taken up as guardians of those rights in cases where the victims themselves could not raise their voices: women who were killed by their husbands in a context where the authorities failed to take action in the face of evidence of serious threats to the victims (Tomuschat Reference Tomuschat2014: 252).Footnote ²¹ This case should be seen in the broader context of barriers faced by women victims of sexual assault in obtaining justice, who are often re-traumatised should they proceed to use the justice system (Clark Reference Clark2010: 28).

The Austrian case certainly represents a type of proxy compliance representation (as defined in Chapter 3), with the human rights organisation asserting rights in relation to the victim women who were no longer alive at the time of the complaint. This is unproblematic in the sense that the failure of the state to protect the rights of the women in question was well grounded. In addition, the human rights organisation in protecting the women was presumed to be legitimate, even though standing was not explicitly discussed in the case. The aim of the claim was to ensure that Austria complied with its obligation under CEDAW, and, in this sense, fits within the scope of compliance-style proxy representation (set out in Chapter 2). Moreover, it could also be argued that, to the extent the case involved the articulation of women’s interests at a more general level, it also consists more broadly of an example of representative proxy representation as defined in Chapter 2.

Measuring the effectiveness of CEDAW, its Optional Protocol, and the other UN mechanisms relating to the protection of women’s rights is extremely difficult. As Martha Nussbaum (Reference Nussbaum2015: 594–6, 616) points out, there are inherent methodological difficulties in measuring the impact of law in deterring violent behaviour against women. Nevertheless, the international human rights regime for women gives women who are widely dispersed in many countries leverage in pressuring governments to comply with their obligations and address ingrained cultural practices of discrimination (Dairiam Reference Dairiam, Baksh and Harcourt2015).

In summary, then, we can see that detailed obligations relating to woman are spelt out in the global human rights treaties with various options for enforcement in the form of Special Rapporteurs and an individual complaints mechanism. These mechanisms do not involve representation of women, as such, but nevertheless provide women with a voice to pressure national institutions to protect women’s rights. The normative underpinnings behind the UN international legal regime relating to protecting women’s rights thus rest on a human rights approach linked to equal enjoyment of human dignity and strongly linked to concepts of social development, both within societies and internationally. Furthermore, CEDAW enshrines substantive rather than merely formal equality. A concept of procedural justice emphasises the importance of striving for equality for women in all levels of the political process.

The institutions described earlier are constantly in need of re-evaluation and improvement in terms of whether they sufficiently address the vulnerability of the groups they aim to serve. Politically, this potential for self-critical further development must be recruited from within the institutions themselves. Just as important, however, is the political pressure of social movements from outside. Often, it is only through such external pressure that institutions are made aware that they are not directing sufficient attention to certain forms of vulnerability. The diverse climate protests – particularly the youth climate protests – are an important example of this: by focusing attention on the next generation (broadly conceived), they indirectly provide necessary momentum for developing new institutions to represent future generations.

5.3.1 Normative Justifications

In this section, we draw lessons from the case studies about the normative justifications successfully used to ground the international institutions. This will be instructive in terms of assessing which normative arguments used to justify institutions to protect future generations are likely to gain political traction. As we have seen, some of the normative justifications involve notions of reciprocity which, by definition, cannot apply in relation to future generations. Nevertheless, it is striking how many of the normative underpinnings of existing global representative institutions in relation to vulnerable groups rely on normative arguments that are equally appropriate in relation to institutions to represent future generations – and that mesh well with the arguments presented in Chapter 3. Political–legal coherence suggests that these normative arguments or considerations point in the direction of establishing some type of international institution (or institutions) to represent future generations.

In comparing the UN treaty regimes relating to children, persons with a disability, and women in terms of their normative underpinning, with the normative underpinnings for representative institutions for future generations, we can see the following points of similarity and difference.

There is no universally accepted definition of future generations.Footnote ²² If, however, future generations are defined as all persons born in the future, then there is at least clarity in terms of the scope of this definition, putting aside the contentious issue of whether a child in utero constitutes a person. As discussed earlier, climate change and ecological disaster involve a spectrum in terms of the vulnerability of future generations, with future people living in poverty likely to be the most seriously affected. Moreover, the inability of future generations to have a say in decisions affecting them involves a particular vulnerability. Underlying the Convention on the Rights of the Child was the idea that children individually, and as a group, are exposed to vulnerabilities, particularly those related to violence, war, and famine. During the CRC negotiations, there was some disagreement among states about precisely when childhood begins and ends, while some countries (for example, in the Africa group) emphasised the responsibility of children, and not just their rights. Nevertheless, the negotiations demonstrated the support of countries for the idea that the particular vulnerabilities of children required their rights to be spelt out in an international instrument, as well as a compliance mechanism involving a specialist committee – although, to date, only about one-quarter of the international community has signed on to the individual complaints mechanism (Optional Protocol to the CRC 2011).Footnote ²³

The risk of catastrophic climate change potentially impacts all future generations, while within the category ‘future generations’, there is a range of vulnerabilities (Dijk Reference Dijk, Linehan and Lawrence2021b). As we have seen, the Committee on the Rights of the Child has recognised the vulnerability of children in relation to climate change. In addition, we have seen that, during the negotiations of the Convention on the Rights of Persons with Disabilities (CPDR 2006), agreement on a definition of ‘disabilities’ proved elusive – and remains highly contentious. Nevertheless, parties agreed that there is a spectrum of levels of vulnerability linked to disabilities, in which interaction between disabilities and a range of other factors (including socio-economic level, gender, and age, for example) plays an important role. Specific vulnerabilities lead to specific modes of protection.

The social notion of disability involves the idea of impairment of human rights arising through the interaction between a disabled person and society. Does such an interactional concept have any parallel in terms of institutions to represent future generations? While there is only a one-way interaction between current and future generations (with current inaction on climate change negatively impacting future generations, for example), there is nevertheless a strong parallel here in the sense that the vulnerability of future generations arises due to the failure to factor their human rights (whether actual or contingent) into current political institutions and rule-making.

Another common thread running through these case studies is the human dignity/human rights framing of the issues. As we have seen, both the CRC and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) were established on a human rights normative framework that rests on human dignity; as argued earlier, such a normative framework, combined with solidarity and vulnerability, also provides a convincing normative basis for institutions designed to represent the interests of future generations. The Preamble to the CRDP (2006: para a) reaffirms the ‘inherent dignity’ of ‘all members of the human family’, while Article 1 promotes respect for the ‘inherent’ dignity of ‘all persons with disabilities’.

The Optional Protocol extends the CRDP’s elucidation of how human rights obligations apply to persons with disabilities by facilitating the development of jurisprudence that clarifies, with greater precision, exactly how these human rights apply. There is an interesting analogy here with representation of future persons, which, again, can be considered to occur through an extension of existing human rights, but this time extended to apply to a particular category of persons; namely, those born in the future. While contemporary institutions in their decision-making in relation to future generations should not be required to treat future and currently living people on an equal footing, there is an imperative, as explained earlier, to treat the generic rights of future generations as a constraint on current policymakers.

In the disability treaty regime, non-discrimination is also crucial: Articles 4 and 5 of the CRPD prohibit discrimination against persons based on their disability. While there is no temporal element involved here, there is nevertheless an analogy to be drawn, in that, in both cases, the underlying normative position is that discrimination based on the characteristic (time of being born, cf. disability) is prohibited.

The Convention recognises that formal equality is insufficient: it is often not equal treatment that is required but accommodation of difference; in other words, ‘different’ treatment. This is captured in the notion of ‘substantive equality’ which includes the notion of modifying a particular norm to consider human diversity (Kayess & French Reference Kayess and French2008: 8; CRPD 2018: para 10, page 3). In the disability context, this can involve the requirement to make reasonable accommodation to consider disability-related needs; for example, flexible work hours to accommodate mobility restrictions.Footnote ²⁴

When we compare this type of process with institutions to represent future generations, two points become apparent. First, institutions to represent future generations cannot operate in an interactive manner with individual members of future generations. Nevertheless, as explained in Chapter 3, the interests of future generations should operate as a constraint on contemporary decision-making. This does not require future and contemporary people to be treated on an equal footing but does require that decisions made now do not have a negative impact on future generations’ human rights that are necessary for a decent life. A proxy representative of future generations should be able to challenge an existing norm, if the norm clearly violates the minimal requirements for intergenerational justice set out in Chapter 3. And, as we have seen, giving a voice to proxy representatives in this manner meshes with the democratic ideal embodied in the AAP.

Representation of future generations is often rejected on the basis that the future is characterised by a great deal of uncertainty. We do not know the exact political, economic, or cultural contexts in which future people will live, nor can we accurately predict their technical capabilities (for climate mitigation) or their interests in a detailed way. But this is not a valid argument for ignoring these interests entirely. While uncertainty about the future makes it difficult to elaborate detailed obligations in relation to future generations, it is feasible for governments to take on obligations to curb action which is highly likely to result in harm to the human rights of future generations necessary for them to enjoy a decent life.

Support for the international mechanisms relating to women and disabled persons partly reflects the strong link made between these issues and development concerns of developing countries. Thus, for example, we saw that Mexico took up the concern of disabled persons, which had been neglected in the WHO Millennium Development Goals. Similarly, strong links were made between social development – both national and international – which played a crucial role in developing countries’ support for CEDAW. In relation to the CRC, there was a strong discourse of protecting children based on their role as future citizens, with the development of nations, societies, and humanity seen as inexorably connected to the development of children, individually and as a group. Yet, tensions remain as to whether the CRC regime unduly reflects Western conceptions of childhood by, for example, underplaying the responsibility of children towards adults, which has considerable emphasis in much of Africa and Asia (Holzscheiter Reference Holzscheiter2010: 224).Footnote ²⁵

5.3.2 Effectiveness

In relation to the CRC regime, there is no doubt that this treaty has had a significant impact; yet, issues of non-compliance remain problematic. The situation is encapsulated by Olga Khazova, who observes that the CRC has helped bring about a change in mindset around the world: A child is now more often perceived as an autonomous person and not the property of its parents. But there is still much to be done: despite an increase in legislation enshrining children’s rights, this is ‘still limited or fragmented in many countries’ (Khazova Reference Khazova, Marrus and Laufer-Ukeles2021: 5).

In relation to women’s rights, the international legal norms and representative institutions represent a step forward, but implementation remains problematic. It is too early to assess thoroughly the effectiveness of the CRPD and its Optional Protocol, but there is no doubt that, together, these instruments have been an important catalyst for disability law and public policy reform in many countries.Footnote ²⁶

The effectiveness of institutions to represent future generations may be difficult to assess, as we will only know in the future what the impact of such institutions will be. But this is true of very many democratic institutions and their work along the normative ideals outlined. Thus, this challenge can be overstated. It is possible to assess now, for example, whether such an institution is highlighting or factoring the interests of future generations into contemporary policy-making.