An atmospheric trust to protect the environment for future generations? Reform options for human rights law

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.