Literature Review

This Chapter involves a study on the Rights of Nature (RoN). RoN comprehends the establishment of a set of specific rights, as well as the recognition of a new legal subject (nature) at the national and at the international levels. For example, on the international level, various international forums slowly envision nature as a potential right holder. Even though this has yet to transpire in formulating and adopting an international treaty establishing that, the language of the RoN now commonly appears in different international soft law documents. Latin American jurisdictions have served as inspiration for those documents, since the recognition of RoN in the region has been considered as paradigmatic. However, the regional recognition of nature's rights has not been free of ambiguities, especially when it is considered together with the recognition of another new legal entity: the Future Generations. The interactions between those new right holders in Latin America have been scarcely studied; this contribution seeks to fill that gap.

In this chapter, the rights of future generations and obligations towards future generations in particular in the context of environmental protection in relation to climate change issues will be discussed. As for the relationship between the present generation and future generations, future generations transfer their rights to the present generation, so that their rights are represented by the present generation. Furthermore, the present generation has responsibility or obligations towards future generations. First, the rights of future generations will be discussed and will be explained, from where one can derive these rights. Second, the obligations of states towards future generations will be analysed, in examining climate change litigation, the question why states are obliged to protect the environment for future generations will be treated. Third, by considering legal documents and climate change judgments, the duties of the present generation towards future generations will be discussed.

The protection of the right to a healthy environment differs greatly within the different hu‐ man rights regional systems. Moreover, when it comes to discussing the rights of future generations, complexity increases. This chapter focuses on the Inter-American system and asks whether, in the context of its greening, the Rio Principles and the principles of institutional continuity and temporal non-discrimination could be used as interpretation methods to mainstream the intergenerational rights for a deeper environmental protection. Thus, the chapter clarifies the historical progression of the protection of the right to a healthy environment before the Inter-American system: going from the incompetence of the Court to exert its jurisdiction to an independent analysis of the right to a healthy environment. Despite the largely procedural nature of the discussion, the chapter goes beyond and justifies the possibility of including the protection of environmental rights of future generations from the perspective of substantive rights.

Is it possible to ignore Nature in discussions about future generations? Nature is the ontological and biophysical unit that marks life. Therefore, excluding Nature’s rights means not representing the future. This study proposes the recognition of the ‘rights of Nature’ as a hermeneutic tool to represent and protect the rights of future generations. The proposal is based on three elements. This generation must take great responsibility for safeguarding the ecological conditions that will ensure the stability of the One Earth System. The intertemporal integrity of natural processes is the determining variable of climate control. The qualification of the interdependence between Nature and future generations is coherent with the transformative changes recently invoked by the 2019 IPBES Global Assessment Report to achieve sustainability.***

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This article reflects on intersections between intergenerational equity, children's rights and the rights of future generations. Recent climate cases involving children and youth are considered, and the fact that few rely on the UN Convention on the Rights of the Child (CRC) is analysed. It is emphasised that intergenerational rights are children's rights – children are a crucial link between current and future generations. In particular the principle of the best interests of the child, which is widespread in national legal systems, should be relied upon more frequently in climate cases. Arguments can be made that failing to accord sufficient attention to children's rights and interests in climate policies violates the best interests principle. Relying on the CRC may increase the chance of successful outcomes in environmental and climate cases; progressing the right to a healthy environment for all. It will also ensure that adequate attention for children's rights is embedded in such cases.

Over the last seventy years, thousands of square miles on the Louisiana coast have been submerged beneath the waters of the Gulf of Mexico. Over the next fifty years, many more square miles of land will slip below the waters of the sea. Commentators have debated the legal significance of this transformation of the state’s coastal landscape for years, but uncertainty remains over a fundamental question: Who owns land that was once either dry land, marsh, swamp land, or the bed of non-navigable water body when that land becomes permanently submerged beneath the sea, an arm of the sea, or a navigable lake as a result of erosion, subsidence, or sea-level rise?

This analysis introduces a framework of three different strategies for protecting American waterways—the conventional regulatory approach, an alternative property-based approach, and a newer human rights-based approach—and reviews how the dynamic among them will be impacted by the Supreme Court’s recent decision in Sackett v. EPA, which curtailed the regulatory reach of the Clean Water Act (CWA). The rights of nature movement has emerged as a human rights-based approach to environmental protection, the public trust doctrine offers a public property-based approach, and the CWA epitomizes the more traditional regulatory approach. Last Term, however, the Court unwound nearly a half-century of accepted regulatory practice when it substantially limited the reach of the CWA as a tool for protecting waterways.

Groundwater is a precious—and all too often scarce—resource. As groundwater withdrawals continue apace, challenges have emerged around groundwater quality and quantity. In the past several years, courts and legislatures have increasingly been called to resolve disputes involving groundwater.

Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its understanding in other jurisdictions. Now, it appears to be at a crossroads. On the one hand, it can lay the foundation for robust climate litigation for years to come via common law, constitutional law, or even natural law interpretations. On the other hand, it could wither away into irrelevance as, even if it is recognized as part of Canadian law, it would be relegated to its historical origins as a property law doctrine that guarantees that natural resources can be accessed by the public—not a doctrine that obligates governments to protect natural resources for current and future generations.

The global rise in climate litigation, particularly rights-based climate litigation, in recent years has been well-documented. Meanwhile, intergenerational equity, a longstanding concept in international environmental law as well as national constitutional law, has been increasingly implicated in such cases and in broader narratives surrounding climate change. The concept plays into the rights-based discourse that has become characteristic of many lawsuits concerning the climate crisis, with references to the rights of and duties to present and future generations increasingly common. Universal agreement on the legal implications of intergenerational equity does not appear to have emerged as of yet, however. This thesis explores the potential legal implications of intergenerational equity through an analysis of global climate litigation explicitly or implicitly invoking the concept. This analysis reveals the difficulties in applying existing rules on causation, locus standi, justiciability, and redressability to climate litigation, particularly where claimants litigate on behalf of future generations. The study conducted additionally confirms the renewed rights-based focus of intergenerational equity, notably through invocation of the right to a healthy environment and reflects on the challenges presented by the application of traditional human rights and children’s rights to future generations. The use of the public trust doctrine in intergenerational climate litigation is also analysed. The growing mosaic of global intergenerational climate litigation thus far has demonstrated diverging interpretations of the legal implications of intergenerational equity, while indicating the rhetorical potential of the concept in framing climate-related claims and colouring the interpretation of other legal norms.

This chapter discusses the Roman concept of "Public Trust," and it also aims to investigate the various provisions of the Constitution of India concerning "environmental protection." By doing so, I hope to demonstrate that the Indian Constitution is a supreme document of "trust,"and that the state, in its capacity as the "trustee" of all natural resources, is required by law tosafeguard those resources. The fundamental rights, which are established in Part III of the Constitution, encapsulate the rights of the beneficiaries, and the directive principles of state policy, which are encapsulated in Part IV of the Constitution, encapsulate the responsibilitiesof the trustee, which is the state.