An atmospheric trust to protect the environment for future generations? Reform options for human rights law
2016
Law rests on fictions. Christopher Stone (1972) pointed this out forcefully in
his seminal article, written 40 years ago: 'Should trees have standing? Toward
legal rights for natural objects'. Examples of such fictions are easy to find. 'Corporations'
are given 'personality' as though they possess characteristics common
to natural persons. Even the notion of natural legal persons under the law
involves fictions in that an assumption is made that a person has the capacity to
exercise rights regardless of whether that person is infirm or profoundly disabled.
International law is also replete with fictions. For example, customary international
law requires states to express consent to a particular rule - the so-called
requirement of opinio juris - implying that a state somehow embodies a natural
person (Shaw 2008, 75). Stone points out that these legal fictions, while initially strongly resisted,
eventually find acceptance because they conform to particular shared ends or
values which are being pursued by society. This chapter is inspired by Stone
in imagining possibilities for a reformed international human rights (IHR) law
which would flow from a set of assumptions entailing ethical obligations
towards future generations in relation to the environment. This is used as a
springboard for critiquing current IHR law in terms of its treatment of the
preservation of the environment for the benefit of future generations. A particular
legal fiction - that of the 'trust' found in common law but also in frag mentary
form in current international law - is argued to be a particularly
useful mechanism for giving weight to future generations' interests in the IHR
legal system. In recent US litigation, attempts have been made to extend the
notion of a 'public trust' to the atmosphere with non-governmental organisations
(NGOs) purporting to represent particular young people and future generations
seeking declarations that the government in question (state and
national) be required to urgently curtail greenhouse emissions. This is argued
to be pursuant to the government's obligation as a trustee to respect the atmosphere
as a public resource for the benefit of the public, including future generations.
These cases provide interesting possibilities for cross-fertilisation
with IHR law.
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