Representation of future generations through international climate litigation: A new site for discursive representation

Abstract

While the recent Paris Agreement represents a step forward in terms of international action on climate change, grave doubts remain in terms of whether it will deliver the dramatic reduction in greenhouse gas emissions called for by scientists. These doubts relate to both the power of vested interests but also the chronic inability of democratic governments to take into account long-term interests. Such short-term thinking could be redressed by “discursive representation” (Dryzek and Niemeyer 2008) of discourses which reflect the interests of future generations. The paper explores the potential for such discursive representation in relation to international climate litigation (including the International Court of Justice and the European Court of Human Rights). Such litigation is potentially valuable as a vehicle for pressuring governments to take stronger action on climate change. But this approach gives rise to a series of difficult questions which our paper will address. How do we decide which discourses legitimately represent the interests of future generations in a context where such cases depend on NGOs articulating what they regard as future generations’ interests? Should courts inquire into the internal processes of such NGOs as a precondition for granting them standing? Can restrictive ‘standing provisions’ which limit who can bring claims before such tribunals be overcome? Is a judicial process inherently too limiting given the undemocratic nature of international courts with judges appointed by governments which are not necessarily democratic themselves? In spite of these challenges, the paper argues that the notion of discursive representation provides a convincing way of ensuring the democratic legitimacy of such litigation on the grounds that: ii) marginalised intergenerational justice discourses can be given greater prominence in decision-making processes and ii) judges can apply and develop concepts that may help to represent future generations through international legal concepts with intergenerational content (e.g. sustainable development, the non-discrimination and equal human rights principles).

The paper is linked to ongoing work by the authors in relation to a project funded by the Germany-Australia DAAD research cooperation fund.

About the speaker

Peter Lawrence (Peter.Lawrence@utas.edu.au) is a Senior Lecturer at the University of Tasmania (UTAS) Law School, the author of Justice for Future Generations, Climate Change and International Law (2014) and Faculty Advisor of the University of Tasmania Law Review. Previously Peter worked for the Australian Department of Foreign Affairs and Trade, including as First Secretary to the Australian Mission to the UN in Geneva.

Lukas Koehler (lukas.koehler@hfph.de) is Director of the Centre for Environmental Ethics and Education of the Munich School of Philosophy, Germany. He is a joint author of Human Rights as a Normative Guideline for Climate Policy, in: Bos/Duwell (eds) Human Rights and Sustainability (2016 Routledge).  Both Peter and Lukas are currently working together on a Germany-Australia (DAAD) research project on ‘Representation of future generations through international climate litigation’.