Equality, Climate Change and Future Generations

Petersen, Niels

Abstract

This article argues that measures that are harmful to the climate, or state inaction on climate change, constitute a violation of the non-discrimination guarantees in international human rights treaties because they discriminate against future generations. The article defines future generations as a group of individuals that are yet to be born as well as children under 18 years of age because they lack political representation. The core of the argument proceeds in three steps: First, the article demonstrates that action or inaction harmful to the climate constitutes age discrimination. Future generations are a vulnerable group in the sense of non-discrimination law because they suffer from political disadvantage due to their under-representation in the political process. Second, measures harming the climate are usually indirect discrimination. International human rights bodies generally recognize that indirect discrimination can violate non-discrimination norms. Saving costs today by imposing them on future generations would not be an adequate justification because of the power-asymmetry between present and future generations. Finally, the article differentiates between state measures that harm the climate and inaction on climate change. Measures that are actively harmful, such as fossil fuel subsidies, can usually not be justified. When it comes to state inaction, courts often derive positive obligations from human rights norms. However, states enjoy a wide margin of appreciation. Therefore, courts cannot impose concrete obligations on states. They do not turn into an ersatz legislature. Instead, they can impose a general obligation to act that nudges the political process.