Rights of Future Generation

I NTRODUCTION
Intergenerational equity is a principle of distributive justice 1 . It concerns the relationship among past, present, and future generations. There are many ways in which we might conceptualize the basic contours of an equitable relationship among generations. From a social contract 2 perspective, we can imagine that all generations 3 are partners in a social contract defining rights, duties, and obligations among generations 4 . Further, we might hypothesize as to the nature and content of such a partnership arrangement by imagining ourselves in the original position envisioned by John Rawls (discussed later in Theories of Right). As described by Edith Brown Weiss: In this partnership, no generation knows beforehand when it will be the living generation, how many members it will have, or even how many generations there will ultimately be. It is useful, then, to take the perspective of a generation that is placed somewhere along the spectrum of time, but does not know in advance where it will be located. Such a generation would want to inherit the earth in at least as good condition as it has been in for any previous generation and to have as good access to it as previous generations have had. This requires each generation to pass the planet on in no worse condition than that in which it received it and to provide equitable access to its resources and benefits. Each generation is thus both a trustee for the planet with obligations to care for it and a beneficiary with rights to use it. With respect to natural resources, this hypothesized conception of what generations would agree to behind a veil of ignorance 5 is supported by a robust set of cultural, political, legal and religious traditions recognizing intergenerational stewardship duties. For example, in a the earth belongs enjoys something entitled to use and letter 6 to James Madison, Thomas Jefferson stated that in usufruct to the living, meaning that each generation akin to a life tenancy such that each generation is profit from the Earths natural resources.

1 2

Concerned with sharing the benefits and burdens of social cooperation John Lockes Social Contract Theory 3 Members of generations specifically 4 Members of generations specifically 5 Rawl, J. Theories of Natural Justice 6 Pg 461,Frischmann, Brett M., Some Thoughts on Shortsightedness and Intergenerational Equity, Loyola University, Chicago Law Journal

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Connected to this generational right to access and use Earths natural resources is the concomitant obligation to avoid waste. Taken together, the doctrine of usufruct 7 and the doctrine prohibiting waste provide 8 that a tenant (or other caretaker/interest holder) is entitled to the beneficial use of the land and its fruits, but is prohibited from prejudicing future interest bearers by using the land in a way that destroys or impairs its essential character or long-term productivity. While the content, scope, and applicability of stewardship concepts to the actual management of specific environmental resources remains complicated and politically contentious, as seen in most debates over environmental protection, intergenerational equity has gained significant traction both rhetorically and as a legally cognizable principle in domestic and international forums. In India we see the best application of this principle through case laws like Vellore Citizens Welfare Forum v Union of India and Others 9 and A.P. Pollution Control Board v Prof. M.V. Nayudu 1 0 . These two cases see the application of Internationally recognized importance of Inter generational Equity in our Indian Domain. From a theoretical perspective, at least, natural resources might seem like the easy case because we do not create such resources; we only inherit them. It seems quite reasonable to postulate that the present generation does not have a superior claim to the Earths resources and consequently that each and every generation is responsible for the Earths condition. Although significant, this conclusion is actually quite limited in the sense that the trustee/beneficiary role is assigned with respect to natural resources alone. The world we live in is comprised of multiple, complex, overlapping, and interdependent systems with which we interact and that ultimately constitute our environments - the natural environment is one and the socially constructed environment is another. What about valuable human-made resources that affect the welfare of past, present and future generations? Are we not stewards of much more than the natural resources of the planet, of our heritage defined broadly? What about culture?
7

A situation wherein a person or company has a temporary right to use and derive income from someone else's property (provided that it isn't damaged). 8 Pg 462, Frischmann, Brett M., Some Thoughts on Shortsightedness and Intergenerational Equity, Loyola University, Chicago Law Journal 9 1996 SC 1075 10 AIR 1999 SC 812

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Knowledge? Infrastructure? Social, economic, and political institutions? And so on. Generally speaking, valuable human-made resources present a more difficult case because the creators of a particular resource may have a superior moral claim to the resource as a product of their labor. Hence these may be excluded from the purview of Right of the Future Generation. Are these rather our prerogative to pass to the future generation or like Earthly bounties is it our duty to pass these on and their right to get it. And also because things like culture and knowledge keep evolving and we need to pass on to the new generation an aspect of the past and the actual culture prevalent in our time. In his Lyceum Address of 1838, Abraham Lincoln recognized that the fundamental blessings passed on from generation to generation extend beyond the blessings of the Earth to include the blessings of societythe communal heritage of law, political institutions, and fundamental rights of liberty and equality. So the debate is still ongoing. Lincoln reminded his generation, as his words ought to remind us today, that the fundamental resources upon which any society depends include the blessings bestowed upon any present generation by sacrifices of its ancestors. It offers a powerful vision of a trans-generational social contract firmly rooted in equity. Each generation inherits a wealth of natural and communal resources. In return for this boon, it is obligated to transmit these resources to the latest generation.

T HE M ORAL Q UOTIENT
Consideration for the future generation is an issue that has cropped up relatively a short time ago. But the build-up to it is long and it has a long historical back-up. It is mentioned in varying limits in many different religions and traditions, like the Islamic Doctrines and the JudaeoChristian traditions 1 1 . This idea has also been the basis for many philosophical thoughts and plays an important part in the formation of laws as well. Various schools of thought like those of Cicero, Kant, Bentham, Locke and Marx have advocated the right of the future generation in their own words and
11

Pg 111, Gillespie, A., International Environmental Law Policy and Ethics (Clarendon Press, Oxford1997)

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through their own mean. But its almost a unanimous understanding that we do hold a responsibility to the future and it is our duty to give them a proper place to live in. This debate in contemporary period arises out of not the human capacity to protect but our innate capacity to destroy. We humans have immense power of destruction and out of concern that we might destroy all that is worth living for the idea was born. Maybe it originated from the concern over rampant pollution of the world or the destruction caused by the wars, but the need to protect our world arose as a result of being witnesses to out own destructive powers. Along with a change in situation we require a change in ethics as well. Traditional ethics, derived from historic and less threatening could be adequate for the survival of our race for many centuries to come. There does arise the argument that why do we owe anything to the future generation as it isnt doing anything for us or why when it isnt even part of our contemporary decision making. Yet by the time the future generations are living with the environmental problems the past generations have left them, we have left them, we would have simply taken benefit of what we could and left others to pay the consequence. This is an extremely selfish and negative attitude, with which a race cannot survive for long.

T HEORIES
JOHN RAWLS

OF

R IGHT

OF

F UTURE G ENERATION

AND THE

IDEAL OBSERVER

The justification for the rights of the future generations can be derived from the works of John Rawls 1 2 . John Rawls 1 3 was arguably the most important political philosopher of the 20th century. He wrote a series of highly influential articles in the 1950s and 60s that helped refocus Anglo-American moral and political philosophy on substantive problems about what we ought to do. Though Right of the Future generation is now being recognized as a right of great importance but his teachings from decades back form the backbone for supporting the argument for the future generation.
12 13

http://www.iep.utm.edu/r/rawls.htm 1921-2002

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Rawls accomplished this by creating a mental experiment that one must apply to a given situation to decide the course of the action without being biased to either side. In our situation the two parties at hand are the present and the future generation, each battling for its own rights. And the dispassionate observer or judge who decides the case is the Ideal Observer 1 4 . The idea places the two parties behind a veil of ignorance. These parties are now rational and self interested. They are ignorant of their personal social, ethnic and sexual life. The observer can now look at them and evaluate all their needs and wants impartially. He shall keep in mind all the non-moral and material facts that are of importance to the decision. The observer will be disinterested and dispassionate to the issue on hand and can form his/her judgment based simply on the facts of the case. The judgment will be impartial and rationale based. In context of the future generation he said that the ideal observer must choose principles the consequence of which they are prepared to live with whatever generation they turn out to belong to. Rawls compares the veil of ignorance to the aspect of time. Rawls believed that the compromise, which a rational person behind the veil would choose, would be one whereby they would inherit the world in the same condition as the generation before had enjoyed. Each generation then acts like a trustee for the planet with an obligation to care for it and as a beneficiary with rights to use it to a limited degree. 1 5 Rawls called this the just savings principle. According to him each generation should recognize its share of the burden to take care of the world and that generations must have an understanding between them. In this situation the principle of Just Savings is aimed to save the interest of and improve the condition of the most disadvantaged generation. T H E C R O S S -T E M P O R A L A R G U M E N T A second theory for saving the right of the future generation arises from what is known as the cross-temporal approach. The idea necessitates a view of human society as an ongoing current of which hall generations, past, present and future form a part. It necessitates that past generations have made a sacrifice for the present generation and the present generation must make sacrifices for the future generations. The idea behind the past sacrifices is the creation of a better society. The people of any given generation live with the dream of creating a utopian
14 15

Rawls, J., A Theory of Justice (Oxford University Press, Oxford, 1972) Edith Brown Weiss, Intergenerational Equity: Toward an International Legal Framework, in Global Accord: Environmental Challenges and International Response pg. 333

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society even if they might never live in it, the want of it makes people do many things. Kant mirrored these thoughts when he said the following People live in societies that are far from ideal, but they still strive for a better society in the future, of which they may well not be a part of. 1 6 Thus humans are ideally supposed to identify with and actually seek the well being of community and everyone in it. Thus we assume that both the people we are associated with and the institutions will flourish well beyond our own lifetime. We must work for the benefit of the future generation by making an ideal society. In that way we ourselves get a better situation and give to the future what we can and thus by doing so we pay homage to any such rights conferred to us by our past generations.

DUTY TO FUTURE GENERATIONS The human right to a healthful environment should be viewed in the context of a duty to future generations. The duty to preserve and protect the environment is a duty that is owed not merely to all other human beings, non-human beings, and inanimate objects in present time but extends also to future generations. The duty is expressed in the theory of "intergenerational equity," which articulates that "all members of each generation of human beings, as a species, inherit a natural and cultural patrimony from past generations, both as beneficiaries and as custodians under the duty to pass on this heritage to future generations," and that this right to benefit from and develop this natural and cultural heritage is inseparably coupled with the obligation to use this heritage in such a manner that it can be passed on to future generations in no worse condition than it was received from past generations. This theory of intergenerational equity finds support from religious and ethical norms and from numerous international instruments commencing, in modern times, from the Charter of the United Nations, the Universal Declaration of Human Rights and its two International Covenants, to a host of conventions and declarations that are concerned with the dignity, worth, and progress of mankind. When we speak of mankind, we speak of the human race as it exists today and also as it will in the future. And, therefore, an intergenerational dimension must be necessarily inferred in these international instruments extending to all future generations as an obligation erga omnes that derives some support from customary international law and is regarded as an emerging norm of customary
16

Pg 115, Gillespie, A., International Environmental Law Policy and Ethics (Clarendon Press, Oxford1997)

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international law. Another view is that the universal and unequivocal recognition of the duty to protect the interests of future generations, as well as of the principles necessary to implement that duty, should be achieved on the basis of treaty rather than be left to the development of customary law. As in the case of non-human beings and inanimate objects, a question arises whether this duty to future generations is correlative to a right inhering in future generations. If rights cannot be attributed to an unborn child, can they be attributed to unborn generations? Unless life on this planet becomes extinct altogether, in which case no occasion for enjoying the benefit of planetary resources or cultural heritage will arise, future generations may be regarded as of certain and definite existence, although lying in the future. We can conceive of a time continuum in which human generations are positioned at successive points of time. They will have definite and certain positions, depending on the number of years when one generation can be said to follow another. A continuous relationship links the generations, and they succeed each other with definite certainty and constant regularity. The existing concept of a right-duty relationship will, in this context, have to be developed further to accommodate the case of rights of future generations. These rights, as Professor E. Brown Weiss observes, are not rights possessed by individuals but are generational rights, conceived of in the temporal context of generations. They will be governed by considerations different from those applicable to the case of an unborn child, the incidents in each case being different from the other. Professor Brown Weiss points out that "while rights are always connected to obligations, the reverse is not always true," and she refers to Hans Kelsen and John Austin in support. The concept of "the common concern of mankind" Another dimension of man's relationship to the natural order is implied in the concept "the common concern of mankind." This concept was the subject of reference in United Nations General Assembly Resolution No. 43-53 of December 1988, and while covering climate change directly, it focuses on issues that are generally basic to mankind. The concept possesses a social dimension as well as a temporal dimension and is considered relevant to other sectors of international environmental law, including the conservation of biological diversity. The UNEP Group of Legal Experts, which was constituted to examine the implications of that concept, at its meeting in December 1990 in Malta, expressed the view that the concept of "common concern of mankind" is a more suitable and neutral concept in dealing with planetary resources than the earlier concept of "common heritage of mankind," in that proprietary considerations were excluded. The element of reciprocity, moreover, was avoided by choosing a concept based in considerations of ordre public. _______________________________________________________________________ _ Constitutional Law II Page 2 of 14

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The ingredients constituting the concept of "common concern of mankind" lay in "involvement of all countries, all societies, and all classes of people within countries and societies, long-term temporal dimension, encompassing present as well as future generations, and some sort of sharing of burdens of environmental protection." As will be apparent from this, the concept has been considered to possess several advantages, in that the word "mankind" implies a link with the human rights framework and with the long-term temporal dimension, including the inclusion of future generations; the word "concern" emphasizes the preventive character of environmental protection as well as the consequential effects or responses called for; the word "common" implies in international law the same sense as "public order" in municipal law, all of them making the notion of "common concern" akin to the related concepts of "obligations erga omnes," "jus cogens," "common heritage," and "global commons." This emerging concept provides greater flexibility than earlier notions in describing comprehensively the true nature and measure of man's obligations to elements of a global concern and avoid many of the pitfalls implied in those earlier notions.

R IGHT

OF

U NBORN

This part of the project specifically deals with an issue that crosses mainstream classification from Law, Medicine, Religion and Society. To commence on the issue first we need to figure out if an unborn child is even entitled to rights or not. The major issues concerning the unborn childs rights are Its right against and the mothers right to abortion Other rights of protection and life of a child before birth Two tortuous liability cases relating to pregnancies and damages relating to its termination prove that there is some from of recognition of the unborn child. Dulieu v White and Sons 1 7 The defendants servant negligently drove a carriage into the public house and the plaintiff, who was working there, though not physycally injured suffered nervous shock. As a result she got ill and prematurely gave birth to a still born child. The court held the defendant liable and Kennedy J, stated that the shock must be such as arises from reasonable fear of immediate personal injury.
17

1901 2 KB 669

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Bourhill V Young 1 8 The plaintiff, a fishwife was near the scene of a motorcylce accident. Her view was obstructed by a tramcar. The negligent motorcyclist was killed. After the body was removed lady went to the scene and saw blood on the street. Due to this she suffered nervous shock and gave birth to a still born child. She sued the representatives of motorcyclist. The House of Lords held that deceased could not be expected to foresee any injury to the plaintiff and therefore he did not owe any duty of care to her as such.

WHETHER

CHILD

IS A

PERSON

OR

NOT

The beginning of childhood carries with it the remark that it is now a person. Under part III of the constitution every person gets the right to life and personal liberty. UNBORN NOT PERSON

The English law takes the stance that personhood is established at the time of birth and not before. Similarly in the USA an unborn Child is not regarded as a person under the constitution. This however does not mean that the unborn child does not have any rights. Through recent legislations there by court orders even unborn children can be taken under social workers care as was in the case 1 9 of a 17 year old drug addict on whom a caesarean operation was performed. This was done using reasonable force. Though in contradiction with her rights to freedom and liberty it was considered a reasonable exclusion for the safety of the child. For such cases the courts follow the principle of Significant Harm which balances the facts of the situation to come to a decision.

18 19

1943 AC 42 Metropolitan Borough Council v DB 1997 1FLR 767

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UNBORN CHILD

PERSON

If the unborn child is a human being entitled to rights, it is entitled to the right to life. The right to life implies a correlative duty in all other persons not to take the life of the unborn child, except in two cases The case in which the child commits aggression against the life of another person The case in which the continued life of the child and the continued life of another person are mutually incompatible because of the existing circumstances

These cases involve the privileges of Self-Defense - which permits a victim of aggression to defend his own life, even if that defense requires taking the aggressor's life Self-Preservation - which permits an innocent individual to take the life of another innocent individual in an emergency situation in which both cannot survive, and the survival of one depends upon the denial to the other of the means of survival.

A B O R T IO N
The questions that need to be asked to give a substantial view of the issue of abortion in this project are Does abortion come within either exception to the duty of every individual to respect and preserve the life of every other individual? Is abortion itself an aggression? Abortion as such was legalized in Roe v Wade 2 0 and Doe v Bolton 2 1 in the United States and this created great waves in all Christian Nations in the world as it was very soon opposed by the Clergy. The central holding of Roe v. Wade was that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes viable, that is, potentially able to live outside the mother's womb , albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." The Court also held that abortion after viability must be available when needed to protect a woman's health.

20 21

410 U.S. 113, 1973 410 U.S. 179, 1973

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The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Although abortion is still considered a fundamental right, subsequent cases notably Planned Parenthood of Southeastern Pennsylvania v. Casey 2 2 , Stenberg v. Carhart 2 3 , and Gonzales v. Carhart 2 4 , have affected the legal standard. The opinion of the Court, written by Justice Harry Blackmun, declined to adopt the district court's rationale and asserted that the right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

UNBORN

AND

INTERNATIONAL LAW

Article 3 of the Declaration of Human Rights 1948 begins the articulation of the human values to be defended in terms of human rights. "Everyone has the right to life, liberty and the security of person." Thus, human life is held to be both inviolable and inalienable. The Declaration does not begin with hard cases or exceptions, but with the general proposition which concerns the value of human life. Noting the order of the rights articulated is also interesting - life first, then freedom, and then security of person. Unless the State can guarantee the right to life then there are no meaningful rights to freedom or to security of person. The right to life is logically prior to considerations of the quality of the individuals life.(So is the right of an unborn to life more important than the right of a parent to a comfortable life). When Article 3 of the Universal Declaration of Human Rights 1948 was being drafted there were several proposals for the provision of an explicit protection for the unborn child. These proposals were certainly debated. In the event, none of the relevant proposals was pushed to a vote and the final text stated only that everyone had the right to life . . . This shows the intention of the UN to not give such rights to the unborn child or it would have been explicitly included. But according to some the fact that the matter was not pushed to a vote does not mean that one can
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505 U.S. 833 1992 530 U.S. 914 2000 24 550 U.S. xxx 2007

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conclude that the rights of the unborn child are not covered by the Universal Declaration of Human Rights 1948. The text clearly states that everyone has the right to life, and that what is meant by everyone is every member of the human family. 2 5 For some, personhood begins at syngamy. For others it is at fourteen days after fertilisation, twelve weeks, twenty- eight weeks, birth, three months after birth and so on. There is no agreement in science or philosophy about when personhood begins or where it ends or how it should be defined. The only agreement one finds is in the embryological text books, that human life begins at fertilisation. It is the fertilisation of a human egg by a human sperm that produces a member of the human species, the human family. So it may be then that the personhood may be established to bring it under the protection of the law. UN DECLARATION ON THE RESPONSIBILITIES OF THE PRESENT GENERATIONS TOWARDS FUTURE GENERATIONS Recognizing that the task of protection of needs and interests of future generations, particularly through education, is fundamental to the ethical mission of UNESCO, whose Constitution enshrines the ideals of justice and liberty and peace founded on the intellectual and moral solidarity of mankind, Bearing in mind that the fate of future generations depends on decisions and actions taken today, and that present-day problems, including poverty, technological and material underdevelopment, unemployment, exclusion, discrimination and threats to the environment, must be solved in the interests of both present and future generations, Convinced that there is a moral obligation to formulate behavioural guidelines for present generations within a broad, future-oriented perspective, The General Conference therefore, solemnly proclaims on this twelfth day of November 1997 this Declaration on the Responsibilities of the Present Generations towards Future Generations. Article 1: Needs and Interests of Future Generations Article 2: Freedom of Choice Article 3: Maintenance and Perpetuation of Humankind Article 4: Preservation of Life on Earth

25

Preamble, Universal Declaration of Human Rights 1948, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

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Article 5: Protection of the Environment In order to ensure that future generations benefit from the richness of the Earths ecosystems, the present generations should strive for sustainable development and preserve living conditions, particularly the quality and integrity of the environment. The present generations should ensure that future generations are not exposed to pollution which may endanger their health or their existence itself. The present generations should preserve for future generations natural resources necessary for sustaining human life and for its development. The present generations should take into account possible consequences for future generations of major projects before these are carried out. Article 6: Human Genome and Biodiversity Article 7: Cultural Diversity and Cultural Heritage Article 8: Common Heritage of Mankind Article 9: Peace Article 10: Development and Education Article 11: Non-discrimination Article 12: Implementation All these 12 articles aim at providing suitable present to future generation. This convention proves that finally the world has recognized the rights of future generation and they started working for preserving that. Because of this fast developing economic and technology we are in one way degrading our environment and our future generation will not get the things which we are enjoying. But we are working hard to protect our environment for ourselves and our coming future generation.

P ROBLEM WITH G ENERATIONS

THE

R IGHT

OF

F UTURE

The move to give Right to the Future Generation, the acceptance of InterGeneration Equity is hard to accomplish. There may be many who would like to go forward and do the needful but for proper effectiveness we need to make sure that the majority of the people act in accordance. It may all be best summed up in the words of Robert Heilbroner 2 6 Why should we make sacrifices now to ease the lot of generations whom we will never live to seeone possible answer lies in our capacity to form a collective bond with generationsit is this absence of bond with the future that casts doubt on the ability of nation states or socio-economic

26

Economic historian and Modern Philosopher

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orders to take now the measures needed to mitigate the problem of the future The alienation with the future and the lack of a bond like with the past stops us from working whole heartedly towards the futures rights. Also how far can we see in the future, as Henry Sidgwick foresaw that there must be limits on how far considerations of the future can be taken owing to a limited knowledge of the certainties with which it is currently possible to obtain and how it may affect the future generations. When it comes to assuming anything more than the basic physical needs of the future generation then how are we to go about and assume and propose about things that we cannot get any information on that may be reliable. And lastly it is most imperative to keep in mind the needs of the present. We cannot destroy the present over the future. We cannot predict what things may be useful or needed to the future when society, if it exists may be totally different from today, and what not. But we also cannot totally override the interest of future generation. We have to draw a balance between both of them. We cannot anticipate for a remote future generation but we cannot ignore the adjacent generation which is in one dependent on us for their resources and environment. At last we can conclude that whole world is taking into consideration the rights of future generation in all respect including environment, children, etc. Enactment of all new legislation by different nations and United Nation approves that. In one sense we owe duty towards future generation and we must fulfill that.

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