Starla Yeh

February 19, 2007

The Threat of Climate Change

Climate change poses an extraordinary threat to the natural world and to human society. Its effects promise to devastate geographical regions, entire populations, ecosystems, atmospheric composition, earth systems, and in a secondary fashion, economic and social trends.

Scientists estimate that the earth's temperature has increased by roughly one degree Fahrenheit since the start of the Industrial Revolution and, if current trends continue unabated, will rise between two and ten degrees during the next century.[1] In absolute terms, such a temperature rise seems insignificant. However, the effects would be catastrophic. Warmer temperatures dramatically change the world's weather patterns, leading to more severe storms with devastating impacts. The number and types of plants and animals found today would change significantly, with many species actually becoming extinct. Adverse effects from invasive species and exotic diseases, such as avian flu, could be increasingly more pronounced. Melting glaciers would result in a sea level rise anywhere between four inches and three feet.[2] Moreover, if the ice sheets in Greenland and Antarctica were to melt, sea level could rise by twenty feet.[3] If this were to happen, most coastal areas as well as some inland communities would be entirely submerged, rendering these areas uninhabitable.

In analyzing the threat of climate change and its potential effects, it is helpful to consider a series of questions. For the purposes of this discussion, the overarching question is: what are the possible deprivations from climate change approximately 30-50 years from now, assuming no human intervention to prevent change in real terms? As a subset of this question, it is important to consider the following. First, in each instance of deprivation due to climate change, who are the victims? Second, who are the perpetrators? Third, in what way have the victims been negatively impacted? Fourth, to what degree have the victims suffered a loss? Fifth, who is responsible and how are they responsible? Finally, what legal theories can we apply to hold someone accountable? The final consideration in the analysis lies beyond the scope of this article. However, the discussion that follows will highlight the most important components of the cataclysmic impact of climate change in the context of the deprivation question as set out above. It is also important to note that the purpose of the immediate discussion is to survey the impact of climate change in broad terms. Complex details and technicalities would likely confuse the principal aim of this discussion.

Who Are the Victims?

Generally, impacts of climate change are the greatest in less resilient developing nations. This is largely because developing nations lack the capacity in their respective social, economic, and agricultural systems to absorb change.[4] Human life, wildlife, plant life - essentially, all living organisms - stand to experience the effects of climate change. For example, increased flooding around the globe as a result of the changing weather patterns associated with climate change would put millions of people at risk as well as endanger flora and fauna.

Who Are the Perpetrators?

It is difficult to say precisely who the perpetrators of climate change are. In macro terms, the perpetrators may be nation-states, their governments and regulatory bodies whose policies fall short of recognizing climate change concerns. In micro terms, the perpetrators may be average individuals who drive automobiles on a daily basis. Furthermore, carbon dioxide and other greenhouse gases such as methane are perpetually emitted into the atmosphere through natural processes such as plant photosynthesis and decomposition of organic matter. Still, human activity has been shown to be the primary contributor of greenhouse gas emissions in the atmosphere. However, for the purposes of this discussion, it would be prudent to recognize that the class of climate change perpetrators is neither limited nor discrete.

In What Way Are Victims Negatively Impacted?

Weather-related events have an enormous impact on society. Weather influences food supply, access to clean water and energy, spread of disease, as well as living conditions and public health in cities and communities. For instance, a 2000 Johns Hopkins University research project conducted with the support of an Environmental Protection Agency (EPA) grant found that water-borne illnesses associated with climate change include: Water-Borne Cryptosporidiosis, Cholera, Hantavirus, Dengue and Dengue Hemorrhagic Fever, and Lyme Disease.[5]

To What Degree Do the Victims Suffer Loss?

Climate change threatens to challenge communities everywhere for a number of reasons including:

• Mass emigration will likely occur from the most detrimentally-affected regions to places such as the United States that are equipped with advanced social, economic, and agricultural systems
• Flooding, particularly in mountain regions, and prolonged droughts in grain-producing and coastal-agricultural areas could leave entire populations without means of sustenance.
• Reduced precipitation may cause soil loss to become a problem throughout Europe, contributing to food supply shortages.
• The rising sea level will contaminate freshwater supplies inland, creating a drinking water crisis.
• Death from starvation and disease will become far more pervasive in society.
• As there are over 200 river basins adjacent to multiple nations, the effects of climate change on land, weather, and people are expected to create divisive conflicts over access to water for drinking, irrigation, and transportation.
• The recorded economic cost of natural disasters has increased dramatically over the decades. Munich Re, one of the world's premier reinsurance risk managers, estimates that "real annual economic losses in 2002 averaged US$ 75.5 billion in the 1960s, US$ 138.4 billion in the 1970s, US$ 213.9 billion in the 1980s and US$ 659.9 billion in the 1990s."[6] One expects these figures to increase in the future with increasingly manifest climate change effects.

Who is Responsible and How Are They Responsible?

It is difficult to determine responsible parties in the context of climate change, as it is nearly impossible to define the class of perpetrators. The range of potential responsible parties could include: governments, agencies, corporations, corporate boards and individuals. Of course, this list is not exhaustive. This subject will require further development and elaboration.

While the potential impacts of global warming and climate change can seem overwhelming, it is a problem that demands immediate personal and political attention. The extant literature on the subject sets forth countless solutions for abatement of climate change effects. However, an understanding of why preventing further effects of climate change is fundamental to the analysis. Using legal theories and developed jurisprudence, a sound, current, and well-reasoned argument as to accountability for the impacts of climate change is critical in mobilizing the political will necessary to affect resolution of this urgent matter.

Legal Theories Demanding State and Private Accountability for Climate Change

While the effects of climate change are already being felt by members of the global community, and, as will be argued, more acutely by citizens in countries that lack the resources needed to cope with global warming, the most serious implications of climate change for human rights are yet to come. Future generations are to be most heavily impacted if climate change continues at its rapid rate. Projections of devastating environmental degradation due to climate change anywhere from 20-50 years from now assert that it is the very young and the yet unborn that will suffer the most from unimpeded global warming. Therefore, rights-based legal arguments demanding State and private accountability for climate change must consider the following:

• What duty does the State and/or private actors have to preserve the environment for future generations?

• Are human rights both intratemporal and intertemporal? Do future generations have a claim to human rights?

• Is the threat of human rights violations to future generations an actionable legal claim (i.e. would there be present standing)?

• Who is best placed to represent the interests of future generations in respect to environmental integrity and climate change?

• Does international law support the notion of intergenerational equity?

In order to explore these questions, this paper traces the theory of intergenerational planetary equity as explored by Edith Brown Weiss in her work, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity.[7] The discussion will then proceed to evaluate responses to the theory of intergenerational equity in relation to the environment through the work of international environmental legal scholars and through environmental case law. Then, the discussion will turn to other legal strategies currently circulating among environmental practitioners and will suggest possible international human rights instruments and remedies that may effectively hold States and individuals accountable for the their duty to assuage the effects of climate change for the benefit of future generations.

The Theory of Intergenerational Equity

Weiss's theory of intergenerational equity is based on the premise that:

[w]e, as a species, hold the natural and cultural environment of our planet in common, both with other members of the present generation and with other generations, past and future. At any given time, each generation is both a custodian or trustee of the planet for future generations and a beneficiary of its fruits. This imposes obligations upon us to care for the planet and gives us certain rights to use it.[8]

As members of the present generation who live on the earth and reap the benefits of its resources, were are concomitantly obligated to assume certain duties to future generations. Weiss notes, "[t]he theory of intergenerational equity proposed here focuses on the inherent relationship that each generation has to other generations, past and future, in using the common patrimony of natural and cultural resources of our planet . . . each generation is both a custodian and a user of our common patrimony . . . ."[9] This notion is similar to that of life estates and remainders in property law. The holder of a life estate has the right to enjoy the estate for the duration of her lifetime. However, she also has a duty to enjoy the resources of the estate in such a way that preserves the benefit of the estate for the interest of the remainderman (i.e. the future generations).

Weiss terms the environmental obligations of present generations to future generations "intergenerational equity," "because [these obligations] derive from the temporal relationship between the use of our planet and cultural resources."[10] Specific intergenerational duties relating to climate change, which also can be conceptualized intragenerationally, include:[11]

1. Duties to take positive steps to conserve resources;
2. Duties to ensure equitable access to the use and benefits of these resources;
3. Duties to prevent or mitigate adverse impacts on the resources or environmental quality;
4. Duties to minimize disasters and provide emergency assistance; and
5. Duties to bear the cost of damages to these resources or environmental quality.

Having outlined intergenerational duties to preserve the planet for future generations, the next question asked logically, is: upon whom specifically do these duties rest? Weiss posits that the position of the State in intergenerational planetary equity is unique because unlike individuals, "States are one of the few entities that continue [albeit not unchanged] from one generation into the next."[12] She notes, "[the State] serves as both a guarantor for the present generation's access to the planetary legacy, and as guardian ad litem for future generations."[13] Weiss goes on to advocate that States should be allowed standing to raise claims on behalf of both present and future generations.[14]

Weiss substantially focuses on the implementation strategies that might be employed in order to enforce both the rights of future generations and the duties implied upon present generations (most importantly, States). She advocates for the codification of duties in international law, as planetary obligations are shared equally across the globe.[15] She notes the transnational nature of planetary obligations, as actions against the environment in one part of the world can easily impact upon individuals entirely unconnected from the initial action, both geographically and of course, temporally.[16] In addition to codification, Weiss suggests other implementation strategies,[17] with those applicable to climate change listed here.

1. Representation of future generations in decision making processes (i.e. guardian ad litems);
2. Sustainable use of renewable resources;
3. Monitoring of natural and cultural resource diversity and environmental quality;
4. Assessment of the impact of our actions on conserving the planet and our cultural patrimony for future generations;
5. Scientific research and technological developments;
6. Codification of rights and obligations; and
7. Global learning and education.

Responses to Weiss's Theory of Intergenerational Equity

The utility of Weiss's theory has been questioned both by international environmental scholars and through environmental litigation, which has attempted to apply notions of the rights of future generations implicated in climate change. In his work on alternatives to legal theories of intergenerational equity in the international environmental arena,[18] Paul Barresi has criticized Weiss's theory for failing to answer two substantial questions:[19]

1. On what theory are we most likely to be able to conclude that the peoples of the world would abandon the current legal order in favor of a new one that would achieve intergenerational equity in environmental matters?

2. How might a legal order based on such a theory differ from that envisioned by Professor Weiss?

Barresi also notes, "the argument that principles of intergenerational equity in environmental matters can be justified theoretically by an appeal to the ideological content of deeply-rooted Western religious or legal traditions is shaky at best."[20] Instead, Barresi advocates that a better answer to the question "Why should we care about future generations?' lies in biology."[21] He outlines a theory in which:

The present generation "cares" about future generations in the sense that individuals are genetically predisposed to do whatever it takes to produce as many offspring as possible who are, in turn, genetically predisposed to do the same…. Thus, the question we should be asking is not: "Why should we care about future generations?" We necessarily care about them because our brains are hard-wired in a way that ensures that we do. The question we should be asking is: "How does our concern typically manifest itself?" The best answer is again rooted in biology, and can be corroborated by common sense observation. Our concern for individuals in future generations tends to vary in proportion to the degree to which we perceive those individuals to be genetically related to us.[22]

Despite this critique of Weiss's argument, however, Barresi is not clear how the biological interest in future generations would in any way serve as a legal argument or basis upon which claims of the right of future generations to environmental protection might be made.

Similarly, the case of Oposa v. Factoran, an environmental case coming from the Supreme Court of the Philippines, has been critiqued not as a hallmark case of intergenerational rights, but instead a mere application of already progressive Philippine law.[23] The case involved a group of children bringing suit against the Secretary of the Department of Environment and Natural Resources (DENR), asking him to cancel all existing Timber License Agreements (TLA) and to prevent him from renewing or processing any new applications.[24] The children were claiming to represent not only their generation, but future generations -- a legal argument similar to that advocated by Weiss. While the case was successful, commentators have pointed out that it was not due to the pioneering of intergenerational equity. Gatmaytan notes that, "the Philippine Supreme Court would have decided Oposa exactly the same way had the children filed the case solely on their own behalf. In cases involving the protection of the environment, the distinction between present and future generations is inconsequential -- we cannot protect the rights of future generations without protecting the rights of the present."[25]

Gatmaytan goes on to note that Philippine courts already recognize the rights of future generations, as compared to the U.S. Supreme Court, which requires that a case or controversy encompasses an injury in fact -- which must be concrete, not merely conjectural or hypothetical.[26] In addition, the standing requirement demands fairly certain causation in addition to redressability for the injury, prongs not likely to be fulfilled under a "harm to future generations" litigation strategy in a U.S. court.[27]

Intergenerational Equity Applied to Climate Change

While commentators have noted the limitations of Weiss's approach, other environmental scholars have reached out to apply the theory of intergenerational equity to climate change. In his comment in the Georgetown International Environmental Law Review, James C. Wood adapts Weiss's theories to the problem of climate change.

Beginning with an understanding that the problem of climate change is a problem of the commons, Wood looks at traditional international negotiations on environmental issue to conclude that they have been largely ineffective due to the problem of "inaction despite collective gains."[28] In order to overcome this folly, Wood proposes the creation of a global climate regime modeled after local cooperative regimes,[29] which have traditionally managed natural resources. This global climate regime would focus on cooperation among actors (i.e. nation states) rather than the allocation of reduction targets, in addition to organizing international climate change monitoring and enforcing sanctions for violations. At some point, Wood notes, the global climate regime will become so effective that "the benefits from participation are greater than the advantages of defection."[30]

Wood goes on to predict the effectiveness of a global climate regime, noting that:

A climate regime is a contract with future generations. Succeeding generations will in turn reassess, recodify, and retransmit this contract to generations that follow them. Just as the concept of "generation" implies a continuum, so too should a climate regime reflect a temporal continuum in each of its elements -- commitments, implementation, decision-making, monitoring, enforcement, and dispute settlement.[31]

Similarly, environmental scholar John Lee has sought to reframe the climate change debate in terms of human rights.[32] He explores the right to a healthy environment and the rights of future generations in saying, "the rights of future generations are defined as those rights whose violations against the present right holders is a simultaneous violation against the future holder of the right. The right to a healthy environment is such a right, and is therefore included in the group of future generation rights."[33]

Support for Intergenerational Equity in International Law

Given the discourse surrounding the rights of future generations in relation to climate change, it finally becomes important to ask: where in international law are notions of intergenerational rights and duties supported? How can these rights and duties be acted upon? Outlined below are international instruments which scholars have recognized as supporting the theory of intergenerational equity.

Framework Convention on Climate Change - Article 3, Principles: "The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity."[34]

Protection of Global Climate for Present and Future Generations of Mankind - "Concerned that certain human activities could change global climate patterns, threatening present and future generations with potentially severe economic and social consequences…"[35]

UN Charter: "We the people of the United Nations, determined to save succeeding generations from the scourge of war…."[36]

Universal Declaration of Human Rights: "All members of the human family…"[37] (implies that rights have inter-temporal scope)[38]

Third generation rights: Have inter-temporal dimension, such as group and social rights, the right to development, and the right to a decent environment.[39]

North American Agreement on Environmental Cooperation: Links protection of the environment to the well-being and preservation of future generations, and to sustainable development.[40]

Stockholm Declaration: Principle 1, "Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations."[41]

Rio Declaration: Principle 3, "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."[42]

Habitat Agenda: Chapter II P 29, "Sustainable human settlements development ensures economic development, employment opportunities and social progress, in harmony with the environment. It incorporates, together with the principles of the Rio Declaration on Environment and Development, which are equally important, and other outcomes of the United Nations Conference on Environment and Development, ... [the] preservation of opportunities for future generations."[43]

Cairo Programme of Action: Principle 3, "The right to development must be fulfilled so as to equitably meet the population, development and environment needs of present and future generations."[44]

Vienna Declaration: art. 11, "The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations."[45]

International Customary Law: The ICJ, in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, confirmed that the "existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment."[46]

International Criminal Law: Weiss suggests that "[a]n international crime could result from a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas."[47]

"The Commons" as an Alternative Legal Approach to the Climate Change Accountability Question

One significant new development in intergenerational theorizing is the notion of "commons trusts" developed by environmentalist Peter Barnes and colleagues, as set forth in a series of Tomales Bay Institute Reports.[48] Issued by Harriet Barlow, Chair of the "audit committee" formed by the Institute to identify problems and to make recommendations "on behalf of American "commons owners," the report makes two general arguments.[49] They are:

(1) First, that at the expense of present and future generations, our current globalized corporatism version of capitalism is rapidly squandering those creations of nature and society we inherit together, "the commons," and

(2) Second, that to preserve the commons for our children and grandchildren, an array of "commons trusts" that would institutionalize our obligations to future generations, fellow citizens, and nature must be created to protect the commons while preserving the strengths of capitalism.

The idea of the "commons trust," in my view, is one that merits close examination and practical application. Not only might the "commons trust" invoke traditional trust and future interest concepts, the "trust" entity itself could find reinforcement in a number of hedging strategies and securitization methods in environmental commodities and weather derivatives. This may potentially involve the mechanics of the carbon trading markets and the activities of the brokerage firms that issue and underwrite emissions credits and securities with a view towards reducing overall global emissions. Going forward, it would be prudent to consider the intersection of scientific climate change studies, legal theory, and securities markets to fashion a system of "commons trusts" that would be viable and effective in preserving the "commons" for present and future generations.

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[1] See generally Earth Policy Inst., Average Global Temperature, 1880-2002, http://www.earth-policy.org/Indicators/Temp/Temp_data.htm.

[2] Sarah C.B. Raper & Roger J. Braithwaite, Low Sea Level Rise Projections from Mountain Glaciers and Icecaps under Global Warming, 439 Nature 311, 311-13 (Jan. 2006), available at http://www.nature.com/nature/journal/v439/n7074/abs/nature04448.html.

[3] Randolph E. Schmid, Melting Polar Ice Threatens World-wide Sea Level Rise, USA TODAY, Mar. 23, 2006, available at http://www.usatoday.com/weather/climate/2006-03-23-sea-level-rise_x.htm.

[4] Remy Paris, Org. for Econ. Co-operation & Dev. [OECD], Capacity Building, and Multilateral Environmental Agreements, available at http://www.geic.or.jp/interlinkages/docs/oecd.PDF (last visited Feb. 19, 2007).

[5] See generally John Hopkins Univ., Public Health Impacts: Disease Specific Information, http://www.jhu.edu/~climate/health.html.

[6] U.N. Dev. Programme [UNDP], Bureau for Crisis Prevention & Recovery, Reducing Disaster Risk: A Challenge for Development (2004), available at http://www.undp.org/bcpr/whats_new/rdr_english.pdf.

[7] Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (1989).

[8] Id. at 17.

[9] Id. at 21.

[10] Id. at 47.

[11] Id. at 50.

[12] Id. at 109.

[13] Id.

[14] Id.

[15] Id. at 47.

[16] Id.

[17]Id. at 119-20.

[18] Paul A. Barresi, Beyond Fairness to Future Generations: An Intragenerational Alternative to Intergenerational Equity in the International Environmental Arena, 11 Tul. Envtl. L.J. 59 (1997).

[19] Id. at 63.

[20] Id. at 67.

[21] Id. at 69.

[22] Id. at 72.

[23] Oposa v. Factoran, 224 SCRA 792 (1993), reprinted in 33 I.L.M. 173 (1994).

[24] Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, 15 Geo. Int'l Envtl. L. Rev. 457, 458 (2003).

[25] Id. at 460.

[26] Id.

[27] Id. at 468.

[28] James C. Wood, Intergenerational Equity and Climate Change, 8 Geo. Int'l Envtl. L. Rev. 293, 296 (1996).

[29] Id.

[30] Id.

[31] Id. at 325.

[32] John Lee, The Underlying Legal Theory to Support a Well-defined Human Right to a Healthy Environment as a Principle of Customary International Law, 25 Colum. J. Envtl. L. 283 (2000).

[33] Id. at 325.

[34] U.N. Framework Convention on Climate Change, 1771 U.N.T.S. 107, U.N. Doc. A/AC.237/18 (Part II)/Add.1., at art. 3 (Mar. 21, 1994).

[35] Protection of Global Climate for Present and Future Generations of Mankind, G.A. Res. 43/53, U.N. Doc. A/RES/43/53 (Jan. 27, 1989).

[36] U.N. Charter, preamble.

[37] Universal Declaration of Human Rights, G.A. Res. 217A, Un.N GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).

[38] Weiss, supra note 7, at 25.

[39] Weiss, supra note 7, at 114.

[40] Lee, supra note 32, at 326.

[41] Stockholm Declaration on the Human Environment of the United Nations Conference on the Human Environment, 11 I.L.M. 1416 (Jun. 16, 1972).

[42]Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26/Rev.1, 31 I.L.M. 874, at Principle 3 (1992).

[43] The Habitat Agenda and Istanbul Declaration, Ch. II P 29, U.N. Doc. A/CONF.165/PC.3/4 (Jun. 3-14, 1996), available at http://habitat.igc.org/open-gates/hat-2.htm.

[44] ICPD Programme of Action, Cairo, Egypt (Sept. 5-13, 1994), in Report of the International Conference on Population and Development, U.N. Doc.A/CONF.171/13/Rev.1, U.N. Sales No. 95. XIII.I8 (1995), available at http://www.iisd.ca/Cairo/program/p02000.html.

[45] Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23, at art. 11 (Jul. 12, 1993).

[46] Donald M. Goldberg, Ctr. for Int'l Envtl. Law, Global Warming and Human Rights: A Case Study from the Arctic, 1 (Dec. 2002), available at http://www.ciel.org/Publications/Kag_ovhds_combined.pdf (report presented at the Kagawa Univ. Symposium on Common but Differentiated Responsibilities, Dec. 2002).

[47] Weiss, supra note 7, at 90.

[48] Tomales Bay Inst., The State of the Commons (2006), available at http://onthecommons.org/files/publications/stateofthecommons.pdf.

[49] Peter Barnes has recently extended the theme of the commons. See Peter Barnes, Capitalism 3.0: A Guide to Reclaiming the Commons (2006).