International Legal Sources of Intergenerational Equity Essay Example

International Legal Sources of Intergenerational Equity Paper An analysis of the legal sources of intergenerational equity should begin within the broader framework of international environmental law principles. Although the notion of intergenerational justice and the related principle of intergenerational equity are not concerned exclusively with environmental issues, the promotion of intergenerational equity does require, at a fundamental level, the appropriate management of natural resources and concern more broadly for the environment. From an empirical perspective, those legal instruments (both international and domestic) that make reference to a concept of intergenerational equity (or something similar) are largely concerned with environmental issues. The concept of intergenerational equity at international law forms part of the principle of sustainable development. The concept’s central function is one of increasing time-horizons of development decision-making in order to take into account the interests of future generations. In d oing so, it provides the essential temporal dimension to the principle of sustainable development. International environmental law is characterised by a number of rules and principles that aim to safeguard the protection of the environment. These include the precautionary principle, the polluter pays principle, and the principle of sustainable development, which are by comparison reasonably well-established. These, and other rules and principles of international environmental law, receive differing levels of acceptance by states. The status of some rules and principles of international environmental law remains controversial, and development of this area of law is ongoing. As the most significant, widely accepted statement of states’ rights and obligations with respect to the environment, the Rio Declaration on Environment and Development (‘the Rio Declaration’), adopted at the United Nations Conference on Environment and Development in 1992, provides a starting point for the elucidation of international environmental law principles. While the Declaration itself is not enforceable, it does have some value: it provides evidence of what states’ stated beliefs are with respect to what the law is or what it should be. Most relevantly here, it gives some insight into the way that states regard future generations with respect to development. We will write a custom essay sample on International Legal Sources of Intergenerational Equity specifically for you for only $16.38 $13.9/page Order now We will write a custom essay sample on International Legal Sources of Intergenerational Equity specifically for you FOR ONLY $16.38 $13.9/page Hire Writer We will write a custom essay sample on International Legal Sources of Intergenerational Equity specifically for you FOR ONLY $16.38 $13.9/page Hire Writer The Rio Declaration notes (in Principle 3) that there is a right to development, and that this right ‘should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations.’ A number of scholars have pointed to this as an explicit reference to the notion (if not the phrasing) of intergenerational equity. Most of the Rio Declaration is concerned with the various contemporaneous balancing processes that must occur in order for sustainable development to succeed. In invoking the interests of future generations, the concept of intergenerational equity provides a temporal dimension to the other statements made in the Rio Declaration. Principle 3 of the Rio Declaration links the notions of sustainable development and intergenerational equity; as we shall see below, the association of the two appears to have influenced domestic legislation with respect to intergenerational equity in Australia. In addition to the Rio Declaration, references to equity between generations have appeared elsewhere in international legal instruments. Indeed, environmental responsibility toward future generations is mentioned as early as the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, in Principles 1 and 2. Both the 1993 Vienna Declaration on Human Rights and the 1992 Convention on Climate Change (article 3(1)) make reference to the needs of future generations. As is the case with the Rio Declaration, while these international declarations ‘indicate the importance now attached in international policy to the protection of the environment for future generations’, they are not enforceable. Their legal value is limited to their ability to demonstrate states’ understanding of and aspirations for the law with respect to development. Along these lines, Catherine Redgwell argues that ‘while intergenerational equity has not yet achieved the status of a binding rule (or perhaps more accurately, set of rules) under international law, a process of â€Å"creeping intergenerationalisation† may be observed’ within international law. According to Redgwell, an increasing focus on intergenerational issues is entering international law in two ways. First, many preambles to international treaties make reference to future generations. While such references are not in themselves legally binding, judges are able to use them in the interpretation and application of substantive treaty provisions. Second, elsewhere in international environmental law there are substantive principles which contain an intertemporal dimension. In addition to the principle of sustainable development, Redgwell argues that intergeneralisation may be seen within the common heritage of humankind principle, the principle of custodianship or stewardship, the precautionary principle and the principle of common but differentiated responsibilities. It is worth noting that the not all of these references to the concept of intergenerational equity are completely consistent; this could affect how the concept comes to be applied. The concept of intergenerational equity under international law has not been fully tested in court. Philippe Sands notes that something resembling a principle of intergenerational equity has been known to international law since at least 1893 when the US relied on a related argument in the Pacific Fur Seals Arbitration. However, the practical applicability of the notion of intergenerational equity in international case law appears to be limited. Its most important application may be in assisting members of the current generation to assert rights with respect to the environment. Indeed, the case most often cited as giving effect to the principle of intergenerational equity under international law, Minors Oposa v Factoran, is largely an expression of current generations’ rights under the Constitution of the Philippines. Domestic Legislation Referring to Intergenerational Equity A survey of national legislation throughout the common law world shows that the concept of intergenerational equity has gained little legislative traction in most jurisdictions. A complete analysis of the various domestic legislative instruments referring to the principle is beyond the scope of this thesis. However, it can be said that of all common law jurisdictions, Australian legislation refers most widely to the concept of intergenerational equity. Indeed, it goes further, by describing the concept as a ‘principle’ – one of the ‘principles of ecologically sustainable development’ that have been introduced in Australian states and territories. In Australia, the Rio Declaration, along with the Intergovernmental Agreement on the Environment, an agreement between the Commonwealth, States and Territories of Australia and the Australian Local Government Association, and the National Strategy for Ecologically Sustainable Development created the impetus for Australian legislation on sustainable development. The Intergovernmental Agreement on the Environment provides a number of principles of ecologically sustainable development that ‘should inform policy making and program implementation’ in order to promote an ecologically sustainable approach to development. These include (at section 3.5.2) the principle of intergenerational equity, which is stated as follows: the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. The principle is appears (with this same definition) in various state and territory legislation (in the Australian Capital Territory, Queensland, New South Wales, Northern Territory, South Australia, Victoria, and Western Australia) and in commonwealth legislation. Similarly, the National Strategy for Ecologically Sustainable Development, created as a result of the Intergovernmental Agreement, sets the broad strategic and policy framework for cooperative action on ecologically sustainable development (ESD) by Australian governments. The National Strategy does not create legally binding rules for governments, but it does set out a strategy for implementing the mutually agreed upon goals of the Intergovernmental Agreement. The National Strategy’s ‘goal’ is ‘[d]evelopment that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends’. The ‘Core Objectives’ of the strategy include aims ‘to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations’ and ‘to provide for equity within and between generations’. The abundant presence of the principle of intergenerational equity within Australian legislation is not matched by depth in its description. As in relevant international legal instruments, the principle is described in the vague terms. While the principle as it appears in Australian legislation requires the present generation to ‘ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations’, there is no indication as to how this should occur. For example, who within the present generation is responsible for future generations? Which aspects of health, diversity and productivity of the environment should be prioritised? What processes should be put into place in order to ensure that this occurs? And how should the interests of future generations be balanced against those of the current generations? These uncertainties have significant implications for the content of the principle. In effect, it means, in the absence of further legislation, that how the principle is applied in a particular setting remains largely up to judges. To summarise, a number of international law provisions, both preambular and substantive, make reference to future generations and their equitable treatment. To this extent, they indicate that some states support a notion of intergenerational equity. The Australian legislative provisions go further, often explicitly stating that ecologically sustainable development requires the principle of intergenerational equity to be taken into account. Neither the international nor the domestic provisions, however, elaborate on how effect is to be given to their aims. As intergenerational equity remains a nascent concept at law, it may not be possible at this stage to overcome all of the ambiguity with which the term is imbued. Nonetheless, if any progress is to be made at solidifying the legal meaning of intergenerational equity, it is essential to understand as much as possible about the substantive content of the concept. In the legal context, the substantive nature of the term must be gleaned from case law. Case Law on Intergenerational Equity While the principle of intergenerational equity appears frequently within Australian legislation, the legislation is silent on how effect should be given to the principle. This has the effect of giving judges a great deal of responsibility over the evolution of the principle. In this vein the Chief Justice of the New South Wales Land and Environment Court (NSWLEC), Preston CJ, writing in an academic context about the concept of sustainable development more generally, states that international, national, provincial and local law and policy-making bodies may have been reticent in explicating their meaning, circumstances of application and the precise details of the means of implementation. The judiciary, particularly at a national level, is therefore faced with the task of explicating the law of sustainable development, case by case. Incrementally a body of environmental jurisprudence will emerge. Similarly, Biscoe J notes in Walker that ‘ESD and its supporting principles are concepts which the legislature has left the courts to flesh out’. A number of Australian decisions make reference to the principle of intergenerational equity. Generally, the principle is merely mentioned in passing. There are, however, a number of cases that discuss the principle with some degree of detail. The cases in which the principle has been examined in the most detailed fashion include the recent decisions of Gray v Minister for Planning, Taralga Landscape Guardians Inc v Minister for Planning, and Walker v Minister for Planning, all heard by NSWLEC. Each of these cases centres upon disputes over administrative planning decisions. These cases provide the beginnings of jurisprudence on intergenerational equity. Gray v Minister for Planning Gray v Minister for Planning concerned the decision of the Director-General of the Department of Planning to grant permission to Centennial Hunter Pty Ltd (Centennial) to commence development of a coalmine at Anvil Hill in New South Wales in 2006. In Gray, the Applicant, an environmental activist, argued amongst other things that the Director-General had failed to take into account principles of ESD, including the principle of intergenerational equity, in his decision to accept Centennial’s environmental impact assessment for public display. The presiding judge, Pain J, found that the Director-General had failed to take ESD principles into account in his decision to accept Centennial’s environmental impact assessment, and declared that the decision was void. Noting that ‘intergenerational equity has received relatively little judicial consideration in this Court in the context of the requirements for environmental assessment under the EPA Act,’ Pain J drew upon an academic article written by Justice Brian Preston (which was itself influenced by the writings of Brown Weiss) in order to elucidate the principle of intergenerational equity. Her Honour stated that Preston’s article pointed to ‘three fundamental principles underpinning the principle of intergenerational equity’: The conservation of options principle which requires each generation to conserve the natural and cultural diversity in order to ensure that development options are available to future generations; The conservation of quality principle that each generation must maintain the quality of the earth so that it is passed on in no worse condition than it was received; The conservation of access principle which is that each generation should have a reasonable and equitable right of access to the natural and cultural resources of the earth.’ In doing so, Pain J anchored the beginnings of Australian jurisprudence on the principle firmly within the model set out by Brown Weiss. While the conservation of options, quality and access principles outlined by Brown Weiss provide high-level conceptual guidance to the understanding of intergenerational equity, they do not dictate what practical actions are required in specific cases. However, following this articulation of the principle, Pain J went on to describe her view of what this might mean in practice, stating in particular two things. First, she argued that the principle required, in the context of environmental impact statements, ‘the assessment of cumulative impacts of proposed activities on the environment.’ Second, she held that simply raising a point of impact in the environmental impact assessment was insufficient to discharge the decision-maker’s onus in considering the impact; it had to be considered in an appropriately detailed manner: simply raising an issue such as climate change/global warming is unlikely to satisfy a requirement that intergenerational equity or the precautionary principle has been considered in the absence of any analysis of the impact of activities which potentially contribute in the NSW context in a substantial way to climate change/global warming. Pain J concluded that the environmental impact assessment for the Anvil Hill coal mine should include estimations of greenhouse gas emissions from not only the construction of the coal mine but also from the end-uses of the coal to be mined there. As a result, Gray has received some academic interest as an example of a potentially far-reaching climate change law case. However, the specific factual outcome of the case cannot be extrapolated as a requirement of intergenerational equity more broadly. Instead, the judgment in Gray suggests two requirements of the principle of intergenerational equity in the context of environmental impact assessment: an assessment of cumulative impact, and an appropriately detailed analysis of relevant considerations. Taralga Landscape Guardians Inc v Minister for Planning Taralga Landscape Guardians Inc v Minister for Planning was a 2007 case involving a dispute between a group of rural residents and a wind energy company over the company’s development proposal for a wind farm that would be visible from the residents’ properties. The case required the balancing of local interests (the appearance, noise and impact upon local flora and fauna of the wind farm, considered unacceptable by local residents) with wider interests (the advantages to the community at large of provision of wind energy, a low carbon-emitting energy). The presiding judge, Preston CJ, found that the interests of the broader population in having a clean energy source at the site outweighed those of the local residents: Resolving this conundrum – the conflict between the geographically narrower concerns of the [residents] and the broader public good of increasing the supply of renewable energy – has not been easy. However, I have concluded that, on balance, the broader public good must prevail. Most relevantly to this Chapter, Preston CJ drew upon the concept of intergenerational equity, arguing that in the context of energy production, intergenerational equity requires two things: first, sustainable extraction and use, with respect to both the resource and the environment surrounding the resource; and second, the increasing substitution of cleaner energy sources for existing, dirtier ones. His Honour stated that ‘the attainment of intergenerational equity in the production of energy involves meeting at least two requirements’: ‘[M]ining of and subsequent use in the production of energy of finite, fossil fuel resources need to be sustainable. Sustainability refers not only to the exploitation and use of the resource (including rational and prudent use and the elimination of waste) but also to the environment in which the exploitation and use takes place and which may be affected. The objective is not only to extend the life of the finite resources and the benefits yielded by exploitation and use of the resources to future generations, but also to maintain the environment, including the ecological processes on which life depends, for the benefit of future generations’; and ‘[A]s far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations.’ Taralga applies the principle of intergenerational equity to the concrete context of energy production. In this context, the Court found that the principle not only demands that the process of production and use of energy occur in a manner which accounts for the requirements of future generations, but also requires new types of clean energy production to be substituted increasingly for old, emissions-intensive methods. The extent to which the outcomes of this element of the case can be generalised for future cases is likely to be limited – it seems fanciful to expect that Taralga on its own will present any real challenge to the construction of, for example, new coal-fired power plants. It is doubtful that it would have precedential value in this respect.603 Nonetheless, Preston CJ’s focus in this case on the long-term interests both of the environment and future generations in the context of energy production is remarkable. More generally, and indeed more importantly, Taralga involved a situation in which narrow, immediate interests (those of the local residents) were in conflict with broader, long-term interests (those of the wider community over a long timeframe). This case demonstrates that the Australian principle of intergenerational equity (in this case in combination with other principles of ESD) has the potential to protect the interests of members of future generations, when they conflict with the interests of members of the current generation. Walker v Minister for Planning The case of Walker v Minister for Planning (‘Walker’) concerned a concept plan for a development proposal for a retirement village on a coastal plain in New South Wales. The Applicant challenged the NSW Minister for Planning’s decision to approve the concept plan, arguing that the approval was invalid because the Minister had failed, amongst other things, to take into account the principles of ESD. At first instance, in the NSWLEC, Biscoe J found that the Minister was ‘under an obligation to consider the public interest, including ESD, when making decisions’ under the relevant NSW planning legislation. However, on appeal, the Court of Appeal overturned Biscoe J’s ruling, finding instead that while the public interest is a mandatory consideration for the Minister under the relevant planning legislation, the specific consideration of ESD principles is not. Instead, the Court of Appeal found that consideration of ESD principles is relevant to demo nstrating that due regard has been given to the public interest in decision-making: ‘the â€Å"mandatory† requirement that the Minister have regard to the public interest does not of itself make it mandatory †¦ that the Minster have regard to any particular aspect of the public interest, such as one or more of the principles of ESD. Whether or not it is mandatory to have regard to one or more principles of ESD must depend on statutory construction.’ Nonetheless, the Supreme Court of New South Wales stressed the importance to the public interest of the consideration of ESD principles in this context.608 Following that judgement, Jill Walker applied for leave to appeal to the High Court, but the application was refused. Despite the ultimate lack of success by the Applicant, the original NSWLEC decision has helped to advance judicial construction of the principle of intergenerational equity. Biscoe J conducted an extensive review of cases dealing with the principle of intergenerational equity. In addition to rehearsing the judges’ treatment of intergenerational equity in Gray, Taralga, and several other cases, Biscoe J commented that the principle of intergenerational equity ‘has endured as the fundamental principle of ESD. Next Page   Implications Previous Page   V. Nascent Jurisprudence on Intergenerational Equity