Crimes contra gerações futuras
Crimes against future generations
Palavras chave: Responsabilidade Transgeracional- Princípio da precaução - Iniciativa dos Cidadãos pelo o Futuro - imperativo legal da antecipação de grandes riscos
The proliferation of harmful incidents affecting humanity’s future calls for increased effectiveness in international law. Events causing real or
hypothetical harm, also trans-generational harm, constitute new realities which must be taken into account. These incidents are both complex and extremely
serious. At present several possibilities are opening up to strengthen the process of recognising crimes against future generation. The environmental
aspect of human rights, as well as the prevalence of social initiatives, will doubtless contribute to the support of this emerging process. Nevertheless it
remains essential to weigh up the “pros and cons”. Other approaches are also possible such as: the defence of common global assets, reinforcing
international law about catastrophic events or again invoking international law relating to future generations. One thing remains certain: international
law is now entering a new era of deep and far-reaching transformation.
Keywords: Transgenerational Responsibility- Precautionary Principle - Citizen’s Initiative for the Future – Legal Imperative of Anticipation of major risks
“Because our actions can have apocalyptic consequences (…) our epoch, which is crying out for an ethical theory, seems suspect to many by appearing to
want to reach for the moon. But we have no other solution apart from trying to act”
At the end of the twentieth century the philosopher Hans Jonas clearly demonstrated that entry into the technological civilisation demanded an ethical
theory capable of instituting respect for the future3. This ethic has been necessitated because of the
acquisition of unprecedented power over humanity’s future, affecting either their intrinsically human characteristics or conditions essential for life on
earth4. This new vulnerability of humankind in the future requires us to think out and transpose a new
obligatory ethical framework: respect for future generations and holistic means of preserving their future.
In other words, the fact of placing the future under authority requires a new utopia (in the full sense of the term) enabling future horizons to remain
Why should such a responsibility towards future generations be instituted? This philosopher believes that “humanity has no right to suicide”5 and that “the existence of man should not be gambled with” 6. He continues: “the future existence of humanity is an obligation laid upon us, and also the maintenance
of human nature as it is”7. Jonas’s thought, far from pointing the way towards a new dictatorship by a
“superman”, is an authentic plea aimed at preserving the life of future generations.
The merit of this major current of philosophical thought, which is left to us as a heritage, consists in de-compartmentalising the paradigm of
responsibility: this should now henceforth also be considered in trans-generational mode8.
It is at least historical to state that this intellectual tendency is in process of spreading out into the contemporary juridical field 9. Several processes are now being worked out, both in international juridical systems (universal and
regional) and in national ones. In my doctoral thesis I was able to show to what extent the progress in international environmental law involves historical
transformations in how law is thought out and formulated so that the future may be held in respect. The arrival of concepts such as the “Common heritage of
humanity”, “sustainable development”, and more particularly that of “Future generations”, has come to confirm that. This dynamic also leads to
transformations and surely heralds an emergence of a “law of the Future”10, both in international and
within national and regional juridical systems. Other expressions of this law relating to the vulnerability of humanity still need to be researched in
international law regarding human rights. There exist domino effects in international law which may be clarified through the lens of a new juridical
imperative: that of juridical preservation of the future. It is possible to identify epistemological leaps approaching juridical alchemy. By way of
illustration, human rights are no longer necessarily and exclusively understood as individual rights to be invoked simply for the benefit of people now
alive. Thus, the right to health, or again the right to a healthy environment, benefit both those now alive as well as future generations, by a systemic
relationship of respect for life and the environment11. From now on it is possible to apply the concept
of human rights in transgenerational terms in relation to respect for the environment and for life. It is then particularly important to raise and study
the question of how to invoke it. However it is important to be clear now that this dynamic can only be described and proposed by taking careful account of
diversities in cultures and legal systems. In other words, the emergence of a Law of the Future cannot be fully achieved without respecting the plurality
of juridical and cultural norms12. It therefore follows that other intellectual routes may be preferred
by peoples with a different cosmogony or with a different culture of respect for social transgenerational relationships. As an illustration, the way of
recognising the laws of Nature for indigenous peoples13 is not necessarily synonymous with a movement
such as deep ecology for some westerners.
The respect for cultural and juridical fields, closely connected to the history of peoples, is just as much an imperative which must be dominant in the
research and development of any law of the future.
That is where it becomes evident that we need to have recourse to complex thought, which is capable of combining and overcoming contradictions 14.
A new juridical Utopia is now moving on, specifically aimed at protecting the future. It takes account of the finitude of human existence, the essential
transmission of conditions and possibilities for life of future generations (understood as being in a systemic relationship with the environment and all
living things). It presupposes an upsurge of conscientious awareness of our common life and destiny. It can only serve to encourage reinforced links of
solidarity with our contemporaries and peoples alive on earth today. It represents real progress that it is now a matter of making humanity’s conscience
effective in law, and international law seems destined to play a major part in this. It is at least striking, if not historic, to notice that more and more
voices are being raised wishing for the day when crimes against future generations are recognised in international law. Why should crimes against future
generations be recognised? What voices are raised in support of such a move? Which concrete examples enable us to distinguish sense from nonsense? What
powers are involved in imagining and mobilizing all this? Lastly, how can one transpose and deal with such crimes when they go beyond temporal and spatial
limits? Should we fear risks of diversions or of going adrift?
It is certain that one must first seek to establish the reality of crimes against future generations. If we intend to undertake a new study about this, it
is because many voices now converge, particularly in civil society, leading us to believe this is a very strong aspiration today. At a later stage it will
be possible to identify the conceptual, theoretical and practical difficulties involved over the eventual establishment in law of crimes against future
generations. After having researched the reasons which may govern the recognition of crimes against future generations (1), we intend to set out possible
means of achieving this in international law (2).
1. WHY RECOGNISE CRIMES AGAINST FUTURE GENERATIONS?
Is there really any meaning in this expression “crimes against future generations”? Why is it interesting to define them in international law? It is
important to respond to a question specifically aimed at the origins of this concept. Recognising crimes against future generations makes it possible to
create a legal category so that certain particularly serious actions cannot happen (1.1). It is also a conceptual response specifically called for by the
wishes of civil society, universities and some States (1.2).
1.1 « CRIMES AGAINST FUTURE GENERATIONS »: SENSE OR NONSENSE?
Is there really any meaning in the expression “crimes against future generations?” What is the interest of formulating these in international law? It is
really important to focus our attention on the origins of this concept. The recognition of crimes against future generations makes it possible to establish
a juridical category so that certain particularly harmful actions may not take place (a). This aspiration is all the more urgent and necessary in that
transgenerational harm is already a widespread reality in our time (b).
a) A new juridical indicator: putting words on unimaginable transgenerational harm
The existence of a paradigm of juridical reciprocity.
Traditionally, the vocation of law excluded the protection of future generations: it was “naturally” up to tomorrow’s law to be concerned with the future.
There is therefore a temporal matrix in law which limits it in relation to the timing of interpersonal relationships. Within such a vision of universal
law, it follows that the protection of future generations is “out of bounds”. In a completely orthodox way, the notion of crime has naturally evolved as
applicable to harm caused to persons now living. This vision of law, and of the legitimate fields of law, belongs within a paradigm of juridical
reciprocity. It is through the arrival of the notion of crime against Humanity that a major practical and theoretical shift has come about. This notion
adds a very strong symbolical and historical dimension: unimaginable, unqualifiable harm becomes a norm.
A quest at the limits of ethics and law.
This then becomes a quest at the limits of ethics and law which needs to become effective as we seek to establish in law the notion of crimes against
future generations. It is a matter of extending the legitimate field of penal and international law.
Recognising crimes against future generations is to start a quest for a new juridical indicator, that is to say a new conceptual category to define
particularly serious types of harm
. If this aspiration is now acknowledged, it is precisely because the scope of crimes against future generations is plural in nature: our actions have
acquired a hitherto unknown dimension whose effects can endanger our whole future. Crimes against future generations are among those going beyond the
traditional conceptual, temporal and spatial limits of law.
Avoiding a future durably endangered.
In Jonas’s modes of thought, it is by representing “that which we hold essential” that we can mobilise our action. In regard to future generations, “that
which we hold essential” would consist of a future without lasting danger. Thus the introduction of the concept of durability in the field of human rights
makes it possible to imagine the idea of a right to lasting human health, the right of durable peace, the right to a healthy environment without lasting
contamination…. the list could obviously go on! Studied from this angle, we can easily identify the case of putting human health in lasting danger,
throughout generations, across the environment and beyond national boundaries. The reality of transgenerational harm turns out to be a particularly
b) The vertiginous reality of transgenerational harm
The reality of the harms which occur, through and beyond human generations, is plural in nature. To clarify, they may be presented using the expression
“heritage of transgenerational harms”. Some have already happened, others are now taking place. One thing is certain: “man has become a geophysical force” 15 capable of modifying the vast balancing mechanisms of Earth, but also a force effecting apocalyptic
transformation of the future.
The heritage of durable harm to the future: choices of the past.
In respect of the heritage of durable harm to the future, it is possible to look backwards. The first situation endangering the future came to us from
choices made by the generations emerging from the Second World War over the burial of chemical weapons under the seas and oceans. Chemical weapons of an
estimated weight of more than 1.5 million tons containing mustard gas, sarin gas or even arsenic are inexorably disintegrating at the bottom of the seas 16. The pollution of living things, and consequently of the food chain, is an insidious and continuing
silent reality. This burial is partly linked to a claim of its being innocuous, now proved unjustified: the floor of the seas and oceans is living,
interconnected and a future resource for feeding humanity. A second major illustration consists in the entry into the nuclear age, which is nothing less
than an age of total menace for the whole of humanity17. Added to this risk of total destruction is the
silent and equally dangerous entry for future generations into the age of nuclear pollution. Whether the latter is linked to nuclear trials, to the
extraction or use of civil nuclear power or again to nuclear catastrophes: there is surely here a juridical field as yet unformulated in respect of future
generations. Indeed, the case of managing nuclear waste is a major illustration of the lack of forethought as regards the menace to genetic integrity of
living beings (human and non-human), throughout unimaginable lengths of time! What reasonable person would choose a technology without even knowing how to
manage the highly dangerous waste matter which would inevitably result from its use?
The heritage of lasting danger to the future: choices of the present.
As regards the heritage of lasting danger to the future, it is also possible to look forward. In our opinion, abandoning nuclear is a necessity in view of
the complex, systemic and transgenerational implications connected with this technology. There are other domains in which transgenerational harm is now
taking place and where international law should come into play. This applies also to the large scale diffusion of products whose toxicity and even their
carcinogenic, mutagenic and repro-toxic properties are well known. Having recourse to pesticides is already described by many scientists as a crime against
humanity18. Some also denounce using truncated or biased epidemiological studies in the absence of
systemic or global analyses19. It is now recognised that many cases of infertility and cancer are
directly linked to excessive exposure to pesticides20. A “cocktail effect” 21 has been clearly highlighted by some scientists in designating toxicity which is greatly increased by
repeated exposure to chemical substances. According to some scientists, it seems that the same logic, quite apart from any responsibility towards the
future, may lie behind GMO seed designed to resist herbicides. It is at the very least surprising that no long term epidemiological studies have been made
about fundamentally modified foodstuffs due for cultivation on a global scale22.
Transmitting a culture of anticipating trans-generational risks.
In this respect it is a logic of anticipation, based on the principle of precaution, which will prove best suited to preserve the future of the future, to
accompany and support independent international research in order to guarantee the absence of lasting harm to present and future generations. This dynamic
is also critically absent in the field of nanotechnologies. There is a yawning gap between investments devoted to research and development and those
designed to evaluate nano-toxicity. Large quantities of nanoparticles and nanotubes are dispersed into everyday articles of consumption even without
sufficient delay for research23. No measures are undertaken to supervise their after-life. Finally the
present rush towards fracking without regard for the integrity of environment is only due to applying the historic profit motive.
When actions endangering the environment are taken in a context of certainty, a crime against future generations becomes a glaring reality which cannot
be passed over in silence.
In this respect, the scandal of asbestos can serve as a case in point. The historically cynical attitude of some multinationals in particular would
justify, according to some points of view, the introduction of a concept of crime against future generations 24. It is hard to tolerate that multinationals are able to place the future at risk in order to satisfy
their own and others’ cupidity in the short term. That was the case in many scandals related to health and the environment such as those of asbestos,
Diethylstilbestrol or Chloredecone… In each instance prohibitions imposed in one State have not made it possible to prevent the occurrence of lasting
damage in other States. When the lasting transgenerational harm is identified by one State, the multinational still carry on trading in full knowledge of
the transgenerational risk to health and environment. This behaviour can be described as criminal: there is a deliberate process of endangering the lives of other people and of life. The lasting
pollution of the environment ought henceforth to be taken into consideration, since it is the source and support of all life.
1.2. THE CONVERGENCE OF INTERNATIONAL ASPIRATIONS AIMING TO PROTECT FUTURE GENERATIONS FROM GREAT HARM
One cannot avoid noticing how this subject obviously arouses great and growing interest today, and this is very important. It is appropriate to emphasise
how very topical and relevant are the various projects now aiming to establish the idea of crimes against future generations. Some of these are initiated
by civil society, some are thought out or promoted by lawyers. It is particularly important to emphasize the vast movement of convergence of all these
aspirations. Two processes are currently at work. The first tends to the recognition of Human rights for Future generations (a) and the second one to the
establishment of crimes against future generations (b).
a) Towards the recognition of Human rights for future generations?
From citizens’ spontaneous initiatives (…)
The Cousteau Foundation deserves much honour for having launched the important idea of proclaiming human rights specifically for future humanity. This was
formally expressed in a Charter or Declaration of Rights of future generations in 1979 and was undeniably a decisive step forward giving rise to new
thinking in the social and juridical fields. The text consists of five articles. The first formulates the idea “of a right of future generations to an
unharmed and uncontaminated Earth”25, the second reiterates the Anglo-Saxon concept of trust, whereby
each generation receives the Earth as a heritage. Consequently there is a responsibility towards future generations “to preserve the rights of future
generations, to oversee with constant attentiveness the consequences of technical progress likely to harm life on Earth and the balance and evolution of
humanity”26. To establish and give effect to the rights of future generations, article 5 of the Charter
calls for the mobilisation of collective imagination. This initiative will surely remind people of a call by the Club of Rome in the seventies which played
a decisive role in promoting hitherto inconceivable concepts of ecological harm even before these were enshrined in international environmental laws.
Since then several civic initiatives have promoted the idea of recognising the rights of future generations. By way of illustration, one acting on a
national level is the “Movement for the rights and respect of future generations”, now known as “Future Generations” directed by François Veillerette 27. This is a legally constituted association, whose object is to act in defence of the environment and
health, specifically focussing on harmful pesticides. It remains well informed and denounces their “impact on health and environment, including workplaces
and in the juridical field”. In this way there is effective supervision, so as to warn both citizens and public authorities about the presence of residual
quantities of forbidden pesticides or traces of endocrine in food. This, and other similar initiatives based on recognition of a right to food safety, all
contribute to the recognition of human rights formulated and lived out for the benefit of humanity now and in the future.
(…) towards human rights becoming recognised as applicable to future generations
Although theoretical obstacles have long been raised in various forms against any proposal to define human rights in a trans-generational manner 28, it is now becoming possible to do this for the protection of future generations. By means of a
prospective, systemic and complex approach29, human rights can be worked out in trans-generational terms
that would also protect the environment. The concept of a right to a healthy environment inaugurates a new era in the domain of human rights: this becomes
at once a right for the individual, for peoples and for humanity. In its wake it brings recognition of two juridical principles that are foundational for
the rights of future generations.
Foundational principles for a renewed legal matrix ensuring the protection of future generations.
In my thesis I formulated two principles for reinforcing the law of the Future. First, that of temporal non-discrimination makes it possible to draw into
the legitimate field of law the ethical imperative of protection of the future. By virtue of this principle, the non-existence of future generations can no
longer be synonymous with an absence of juridical protection. This principle enables a stand to be taken against a real abuse of power by present
generations over the future, based on prioritising their temporal existence. It may be applied, as we shall see, differently according to the state of
scientific knowledge (in a context of certainties or uncertainties of trans-generational harm). The second principle, of the dignity of future generations,
is at the same time both descriptive and normative. Descriptive, for this principle corresponds to an evolution already recognised in international law and
also in national law concerning the protection of future generations. This is particularly evident in law relating to the environment and human rights.
Normative, because this principle is formulated as the matrix of a law granting respect to future generations. It can become the cornerstone of a system of
human rights open to protecting the future. Here we must state that the substance of the principle of temporal discrimination proposed by us in 2008 is
taken up in the report by UN Secretary-General Ban Ki Moon entitled “Intergenerational Solidarity and the Needs of Future Generations” 30. The progress of the paradigm of juridical asymmetry is increasingly evident through the publication
of “duties” in respect of the environment or towards future generations, whether in texts or following decisions in court cases. The Charter for the
Environment adopted in 2005 by France is a relevant example. Article 2 stipulates that: “Each individual has a duty to take part in the preservation and
amelioration of the environment.” If the progress from the proclamation of the rights of man in 1789 needed nearly a century and a half before becoming
directly applicable in law, particularly in France, it seems that the right to a healthy environment may well be more widely recognised in a shorter
period. Whether this decision remains effective or is reversed, it is a historic marker indicating a convergence of civic consciences in favour of
respecting human rights across ecological time scales. Let us imagine a coin: if human rights for future generations represent “heads”, then
trans-generational crimes constitute “tails”.
b) Towards recognising crimes against future generations?
Growing citizens’ spontaneous expressions of support
Civil society is also demanding that harm caused to the environment should be criminalised. From now on many conflicts arise out of environmental
inequalities or again from new forms of environmental discrimination. Some voices are raised, particularly in South America, denouncing a phenomenon of
“colonisation using the concept of sustainable development” 31. If this expression seems inappropriate,
inasmuch as sustainable development claims to be part of a renewed humanism actually respecting the future, it nevertheless describes a new reality: people
are being removed from their lands, sometimes so that investors can make a profit out of ecotourism. There are demonstrations by small farmers protesting
against exploitative schemes for mega-farms, whether in Africa32 or elsewhere, and these protesters have
worldwide public support33. These calls for fairness must be heard.
A growing convergence of civic movements in favour of protecting future generations
European Deputy Corinne Lepage proposed, using a Brussels Charter enacted on January 30th, 2014 at the EU Parliament combining various social,
political and legal movements already in existence. The main proposal consists in an appeal to create a European penal tribunal and an International
Criminal Court for environment and health. This development is particularly interesting since several initiatives have come together. They concern both
those active in international civil or regional society as well as groups of men and women in politics and magistrates. The signatories who gave momentum
to this Brussels Charter include ex-politicians formerly active in environmental rights, magistrates, civilians and researchers 34.
In the present year 2015, it is at least of special interest to underline the fact that several public initiatives exist with the aim of criminalising
major damage to the environment, using expressions such as environmental crimes or even ecocide. This concept, already often evoked and studied 35, is now topical and we see that civil society has entered into the debate. In 2013, Prisca Merz
initiated the first public movement in Europe gaining 185 500 signatures. Her first objective was to encourage the European Commission to study a proposed
directive aiming to criminalise damage to the environment known as “ecocides”. Prisca Merz was heard on February 26st, 2015 by the European Parliament. The
project is currently being studied by four commissions: energy, law, fishing and environment. In fact, the public movement “End Ecocide in Europe” has
become a global public movement sui generis and is now “End Ecocide on Earth”. Faced with the lack of any similar public initiative on the part of
the UN, such as the European public movement instituted by the Treaty of Lisbon in 2007, End Ecocide in Europe is becoming a vast public movement on a
global scale with many ramifications, working in the hope of some national support so that their amendment to the Statute of the International Criminal
Court may be proposed. Their new objective is: recognising ecocide as a new international crime against the environment, peace and future generations. An
amendment to the statute of Rome has been drawn up by lawyers who support this initiative with the aim of widening the scope of the ICC to include ecocides 36. This amendment aims at protecting global communal assets with the specific aim of incriminating the
causing of major damage where even now such events rank as unthinkable and thus inhabit an international legal void. It is important to mention that many
other public initiatives are now also taking place37. It is of particular interest to stress that such
movements are also affecting and included in legal doctrine. This is characteristic of a movement in which ideas and commitment are converging worldwide.
We can see there a historic expression of public will at supranational level to control the way of how norms are defined in the case of major damage to the
Progress in recognising crimes relevant to future generations’ human rights
Many influential writers of doctrine are now militating in favour of recognising ecocide in international law as a means of penal defence against violent
ecological harm38. Others envisage this as a way of rendering human rights operational. According to
these articles, sometimes it is a matter of recognising ecocide as a new international crime against the environment, peace or future generations.
Sometimes considering only the harm inflicted in wartime, or by carrying out a collective and focused plan against the whole or part of a population (such
as a crime against humanity). Above all, the question of the extent of responsibility is regularly raised: if, for some writers crimes against the
environment are the responsibility of the State, it is clear that for others that actions by private individuals and particularly by multinational bodies
must be taken into account. It seems fairly obvious that ecocide cannot be only a matter of law relating to war.
Four years ago, Sebastian Jodoin presented a project initiated under the World Future Council aiming to establish the legal concept of crimes against
future generations. For various reasons, particularly the risk of confusion, these researchers rephrased their title to “economic, social and environmental
crimes”. The great merit of the project lies in the transposition of trans-generational equity into international penal law. This affects how we read about
the harm across generations caused to the economy (for example by corruption on the part of some States depriving future generations of the real economic
development to which they would have been entitled). Damage to the environment is also taken into account. With such incrimination becoming possible,
arrogation of rights to water or some unpolluted natural resources might also come into play. Four years ago I said that in my opinion these crimes lacked
any mention of damage by humanity to Humanity. Notably this would apply in the case of the creation of a hybrid being (half-human/half-animal), of a clone,
or of any human being either augmented or diminished (which can now be envisaged with the NBIC convergence) 39.
In a letter dated June 4th 2015, the President of the French Republic tasked Madame Corinne Lepage with drawing up a declaration of human rights, « that is
to say the right for all inhabitants of the earth to live in a world where the future is not compromised by irresponsibility in the present ». One
objective could be to celebrate the anniversary of December 10th 1948, the day when the Universal Declaration of Human Rights was adopted. If such a
declaration were to be celebrated, it would mark a new stage in the evolution of human rights. This would highlight the trans-temporal dimension in a new
Now there is a need to explore ways of defining criminal harmful acts affecting future generations.
2. HOW TO DEFINE THESE CRIMES AGAINST FUTURE GENERATIONS
The task of defining crimes against future generations can be viewed from various aspects, but it is also possible to foresee a number of risks. It is
essential to spend time on questions arising: What are the possible pros and cons of such a concept (2.1)? Are there any other relevant paths to ensure
trans-generational protection (2.2)?
2.1 Pros and cons of the recognition of such a concept
Having presented reality of these transgenerational dangers, we can now lay stress on the maïeutic effect of recourse to the notion of “crimes against
future generations” in international law (a). The recognition of crimes against future generations would reflect an increased level of awareness on our
part of responsibility for the future40 (b).
a) The maïeutic effect of crimes against future generations
Just to pronounce the name: “crime against future generations” surely has a maieutic effect: that of introducing into law a new consciousness of
responsibility in the choice of our technologies with regard to their future implications. In the end it is a matter of granting (in the sense of adapting)
international law a status equipping it to cope with the harmful transgenerational consequences inherent in certain new substances or technologies. It is
certain that evoking the notion of “crimes against future generations” is a clear indicator of the development of a new awareness regarding accountability
for the future of human, other living species and the environment.
The leap of States into the absolute
It is important to remind ourselves that silent transformations having been taking place since the Second World War. According to the philosopher Günther
Anders, the leap into the atomic era arose out of a metamorphosis of the State consisting in a “leap into the absolute”. The writer continues: “each State
is not only all-powerful and totally powerless (….). Totally all-powerful, because it is at the same time totally powerless; this is an absurdity” 41. He concludes from this: “nuclear power is to foreign policy what terror inflicted on its citizens by
the totalitarian State is to national policy”. One may add that this terror has an unprecedented transgenerational dimension, inviting people to imagine a
threat and hence also to envisage crimes against future generations. This metamorphosis in the power of States was not accompanied by any wakeup call to
international lawyers to bring about stronger measures for protecting future generations42. History will
enable us to see clearly how the vast gulf between the reality and seriousness of the transgenerational threat and its treatment in international law came
silently into place. How can we reasonably continue along the road of nuclear energy when we already have several examples of nuclear disasters such as
Fukushima still in process? How can we fail to acknowledge man’s failure to master an energy which places us beyond the limits of our own technology 43?
Reminder of transgenerational protections in International Law
There are already many juridical arrangements in international law dealing with direct or indirect protection of future generations. In a certain way this
is already a sign that consciences are awakening to the fact of this leap by states into the absolute and to the necessity of safeguarding the horizons of
Crimes against humanity, a notion formalised in the London Agreement of August 8th 1945, gave rise to a juridical revolution on a grand scale.
There are crimes which, because they degrade human dignity to such an extent that they disfigure the very humanness of Humanity, must therefore be utterly
forbidden. It is in this very dimension of “exceptional crimes” that we must necessarily place crimes against future generations 44. The inventory of texts, declarations, reports or frameworks of jurisprudence dealing with
Human Rights and/or those of future generations are legion45. Progress towards the assemblage of these
rights and hence of fresh criminal sanctions in law concerning future generations has begun well. A number of procedures to this effect can now be
identified in international law46.
Thus from 1889 to 1972, concepts relating to the interests of humanity, to laws about humanity and to humanity’s shared heritage were often mentioned.
Since 1972, several changes began to emerge in the concept of humanity, precisely in connection with protecting the environment and future generations. New
environmental vulnerabilities, new risks of destruction (either total or gradual) were the object of international conventions or declarations of a new
kind. During the decade in which international law relating to the environment really began to take shape (1982-1992), the theory of intergenerational
justice and the concept of a human right to a healthy environment spread throughout international law47. Early in this century, the concept of humanity changed again owing to the protection of biodiversity, cultural heritage and the human genome. The
protection of humanity’s condition in the future and of the environment in the long term are now established as objectives in international law.
Risks of conflicts between legal systems at the international level?
It is possible to imagine a new balance between fundamental group interests, especially between freedom for international trade and protection of the
environment. Environmental protection should increasingly be viewed as a fundamental value. It is hard to accept that, according to some arguments now
presented to the WTO, this protection can be an obstacle to the freedom of international trade. Nevertheless, an attentive reading of conventional texts
adopted under the WTO enables us to affirm that international economic law must come to terms with new safety imperatives. The same applies firstly to
regulations over sanitation based on the SPS agreement48. Secondly, a precautionary approach and
the necessity of pursuing the aim of sustainable development form part of the Cartagena Protocol adopted on January 19th 2000 49 et and in the Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the
Cartagena Protocol on Biosafety. The study of cases raised under the WTO quasi-juridical system clearly reveals the existence of a cultural abyss on behalf
of the public understanding of the principle of precaution, needed in anticipation of very serious risks relating specifically to future generations.
According to some authors, application of this principle in international economic law can certainly be envisaged 50. The concept of food security has already been raised in this branch of law. As the reality of
international crimes against the environment progresses, this could bring about the emergence of new tensions in international juridical order between the
vital importance of protecting the safety of the planet51 and the necessity of free-trade.
These preoccupations are increasingly exacerbated today, at a time of possible negotiation between the UE and the USA over a Trans-Atlantic free Trade
Agreement (TAFTA). Voices are being raised denouncing the risks of a domino effect in regressions engendered by such a treaty. Regressions in laws for the
protection of society and the environment, abdication of national sovereignties for the benefit of multinationals: the project seems unrealistic, for in so
many ways it poses a fundamental threat to decades of constructing legal protections in Europe, and above all privileges the interests of multinationals
over against the common interests of States, peoples and future generations. Therefore, the recognition of crimes against future generations gains in
b) Systemic pros
The systemic recognition of a principle of Future Generations’ dignity
The recognition of crimes against future generations would ipso facto establish a principle for dignity for future generations, even conferring
human rights on them. It would give momentum to a system of protection for the essential condition of the future and the environment. This concept of
dignity tends precisely to protect the very humanity of human beings and beyond it. It is an open concept that may permit the mobilization of
consciousness. In comparative law, one cannot fail to notice that the dignity principle tends to be extended to future generations in constitutions 52. It would initiate a reshaping of the human rights landscape. Various projects of declaring future
generations’ human rights tend to confirm the increasing power of the Future Generations’ Dignity Principle. It would integrate into the system the four
human rights generations and also “transgenerationalise” them. The influence of international human rights in law also clearly confirms the existence of a
tendency to grant such rights to humanity.
The Future Generations Dignity Principle would then constitute a new rampart protecting individual liberty.
In conformity with the definition stated at article 4 of the 1789 French Declaration of Human and Citizens’ Rights of 1789: “Freedom consists in being able
to do anything which does no harm to others: thus the existence of natural rights for each person has no limits except those which ensure that other
Members of Society enjoy these same rights”. In other words, put in trans-generational terms, it becomes possible to imagine that henceforth the only
limits to our freedoms are those ensuring that no future harm will irreversibly affect others’ futures. A concrete illustration is provided by the very
slight commitment by national States to setting up a realistic international legal regime regarding climate change. If the dignity of future generations
consists in protecting their ability to exercise their natural rights, then it is right to conclude that legal action is perfectly appropriate to safeguard
The defence of civilizational values
On reflexion, asking how to protect the future condition of humanity and the integrity of the environment through time amounts in the end to considering
the basics of civilizing values which cannot fail to be universally recognised. Indeed, it is a matter of protecting the humanity of Humanity, the durable
integrity of the environment and of health for both humans and all living beings. Rational thought about crimes against future generation involves more
than ever before imposing limits to civilisation in respect of any development liable to close possible future horizons. Put otherwise, not establishing
crimes against future generations in cases where actions particularly harmful to civilisation take place, amounts in the long term to consenting to the
Tragedy of Human Rights54.
Wherever a return to the previous status quo is impossible, where even conditions for life are adversely affected, the very concept of Human rights
becomes downgraded into obsolescence.
c) Difficulties to be overcome
Crimes affecting future generations must be clearly defined in their entirety. Beccaria has alerted jurists on the particular dangers implicit in opened
A number of problems need to be identified and overcome : to what extent can one limit or define a crime against the environment? Is an element of
intentionality essential? Can ecological terrorism be established at an international level ? For instance, when GMO’s seeds are imported and cultivated
completely against the Brazilian Constitution provisions, would there not be room for a concept of ecological and economic terrorism?
These are major problems and can only be formulated as questions. The will to criminalise come behaviours seems, in many ways, legitimate. The major
sanitary and environmental scandal represented by the diffusion of asbestos with full knowledge of its toxicity is an example of criminal behaviours
towards future generations. Just one exposure to a fibre of asbestos is enough to place a sword of Damocles over each of them and our descendants: a sword
which will fall (or not) thirty years after that exposure. Today the aspiration to recognise crimes against future generations is all the more legitimate
and necessary in order to face up to the explosion of organised environmental criminality. Trafficking of humans, of toxic substances, of radioactive and
electronic rubbish illustrate this point55. In these particular cases, it clearly is a matter of
intentional actions56. But ecocide can also apply to other situations such as technologies or extractive
procedures causing irreversible pollution to the environment and to the health of local populations. Such a case is the diffusion of mercury which led to
the conclusion of the Convention of Minamata on October 10th 2013. This should be the case for any lack of obligatory vigilance towards the
environment and transgenerational health. But this involves stepping out onto other relevant paths towards ensuring transgenerational protection.
2.2 Other relevant paths to ensure transgenerational protections?
a) Towards a convergence between the Intergenerational Trust and The Global Commons theories?
From planetary trust to the global common heritage
There are many paths to transgenerational protection. The emergence of the concept of Hunanity’s common heritage represents a historic step towards taking
account of “shared equity” on an international scale. This concept carries a future trend within itself and lends support to the construction of a
juridical regime of transgenerational protection. From the viewpoint of juridical epistemology, this concept set in train a veritable legal revolution
inasmuch as it gives new intellectual support to the idea of collective ownership57.
It fell to Professor Edith Brown Weiss to hasten the process of metamorphosis by supporting the thesis of planetary trust 58. This is mainly a matter of imagining and placing limits upon various human activities. This idea will
not fail to recall that of “fideicommis in the name of Humanity” which was formulated in 1893 in the Bering Sea sealskin fur affair 59.
From public goods to global commons
A new stage of development of this new conception of collective property is currently being implemented through the dissemination of concepts such as «
global commons » or « global public goods ». According to the UNEP, these could be defined as « refers to resource domains or areas that lie outside
of the political reach of any one nation State. Thus international law identifies four global commons namely: the High Seas, the Atmosphere, Antarctica
and, Outer Space »60. This concept arose in economic thought: it concerns goods or services with
two characteristics: “no competing ownership; consumption/enjoyment of a good by one individual does not preclude its consumption/enjoyment by another
individual; no-one is excluded from the enjoyment of this good which is available to all”61. One of the
contributions by economic thought consists here in adding logical elements outside the world of law, such as: hypotheses of non-rivality and non-exclusion.
Transposed into juridical terms, global public assets « represent the totality of objective goods which call for specific protection so as to preserve the
public liberties of world citizens (…) they suppose they may claim the means to discipline economic liberalisation and to regulate increasing issues
of interdependence »62.
Nevertheless, according to Professor Delmas-Marty, « economic vision does not take into account the exigencies of equity, hence the reference to the
criterion of common good(s), which would make it possible, in the singular or the plural case, to ensure protection not limited to that of human
generations either present or future”63.
Another relevant path could be the reinforcement of International Law in order to face disasters.
b) Reinforcing International Law dedicated to disasters
Another relevant path could be found by reinforcing international, regional and national laws in order to anticipate major risks and disasters. One should
mention that from a philosophical and anthropological point of view, a Disaster is synonymous of a reverse of the concept of History 64. In that particular case, the precautionary principle, which could be also called “principle of
anticipating the risk of disasters” is of a major importance.
International law must establish limitations to this trend towards dehumanisation of our condition whether by new technologies or by new kinds of
These limits may be elaborated via complexity logics (of juridical systems and of problems as they arise). On the one hand, in a context of the
known certainties of disastrous effects on the environment and health for future generations, it is finally unnecessary to reframe the juridical notion of
crime completely. It is a matter of extending this into a transgenerational temporal frame. On the other hand, in a context of risks of harm, even where
the application of the principle of precaution is needed, it is a matter of deploying a range of thought and risk management strategies relating to
transgenerational catastrophes. Even where reliable knowledge is lacking, it is important to remain aware of the risk of catastrophe. The ability to
imagine catastrophic risks must be kept alive and should lead to encouraging reasonable scientific research. Once catastrophic risks are suspected by
independent expert researchers at international level (the UN should certainly play a leading role here), compulsory vigilance must be exercised regarding
the environment, health and sanitation, leading on to such legal obligations as labelling. The development of scientific knowledge can do no more in the
long run than clear the horizons of uncertainty. If the risk of transgenerational catastrophe lessens, then milder measures could be adopted. But should
these risks be confirmed, then stronger precautionary measures should be used (such as embargos, moratoria, removal of licences to market produce). It is
certain that where risks of catastrophe are justifiably suspected, it becomes irresponsible and criminal to endanger the future for a cynical desire for
profit, causing lasting harm to human health and the environment.
The sense (or meaning) of crime against future generations forms part of the quest for a new system of future management in this new era of absolutist
attitudes towards that future. Its lack of sense (or non-sense) is to be found in our heritage of lasting harm to the future we have already inherited from
the past. Nevertheless, even in the face of limitations or lack of responsibility, action to care for the future remains possible and well worth pursuing.
In Japan, the Third UN World Conference on Disaster Risk Reduction65, has been a historical moment for
seeking for a international cooperation in case of disasters and mega disasters. In a statement we pointed out the topic of the tragedy of human rights,
“i.e. the tragedy of human rights not being made available to everybody, in particular to people coming after us.
The main idea of this concept is the following: whenever a return to the status quo is impossible i.e. whenever conditions for life are adversely affected,
the very concept of Human Rights makes no more sense. There is an urgent necessity to give respect for a future legal framework and implement it. That
would mean, that if we want to enforce a meaningful DRR we also need to enrich our legal framework by anticipatory rules. As an example : the Precautionary
principle, which asks among other things for further research, due to new technologies, is very valuable in the situation of DRR. Finally, I would like to
focus on the particular situation of nuclear disasters. Unfortunately, this is a model where the Human Right to life of the Future Generations is infringed
upon. May the persons who disrespect the long term and the rights of future generations, be it by ignorance or greed, face their historic responsibilities” 66.
c) Promoting an international obligation of due vigilance concerning environmental and public health?
Finally, it is impossible to overstress how urgent it is to transcribe the need for preserving future horizons into the legal field with a new anticipatory
matrix. Many interconnected laws could help prevent disasters and transgenerational harm. An obligation of due vigilance over environment and health would
strengthen laws relating to the future. What is at stake is a culture of awareness of the future aiming to preclude the risk of serious harm 67.
Recent historic events encourage support for managing urgent action on climate change
In a recent historic decision, a Dutch court condemned the State authorities to reduce the nation’s emissions of greenhouse gases to a considerable extent68. This case mobilised 886 citizens and a Dutch NGO entitled Urgenda 69. The court concluded : “a worldwide reduction of emissions is necessary in order to prevent
irreversible climate change”. It is essential to underline that the court decided that Urgenda could sue the State by virtue of a very specific Dutch
provision that of “the open norm”70, but not by virtue of article 2 or 8 of the European Convention of
Human Rights. It is particularly interesting to underline that the method of the open norm, enables the Dutch judges to integrate “international
obligations of the State, other treaty provisions and guidelines by the European Union and the principles that lay at its foundation” because they can
fulfil the open norm. By virtue of the principle of endangerment, the Dutch State has an obligation to avoid the impending danger (of climate change). It
is historical to assist to the application of three principles: the equity principle (which integrates the one of equity towards future generations71), the precautionary principle and the sustainability principle 72. On the grounds of the article 21 of the Dutch Constitution, the State has a duty to safeguard the
protection of the environment and the improvement of the living environment. In other words, it is a duty to protect which is stated here 73. “It is also within the power of the State to effectively exert control over the Dutch emission
levels. The State therefore plays a crucial role in the transition to a sustainable society”. It is also stated that : “ after all, all emissions
contribute to the total increase of CO2 concentration and not a single country, small or large can hide behind the argument that their efforts alone, will
not determine whether climate change is to be averted. According to the judges: “Prevention is better than cure”. Finally, the decision insisted on the
importance of independency of judges and stated that it is of their office to offer judicial protection against imminent unlawful behaviour, also in cases
against the government. During the verdict, it is said that “it is here also the case that, since the severity of the dangers increases the legal duty of
the government”. It concludes that the trias politica is not a decisive counterargument to exclude the judge’s jurisdiction. The judges ordered the State
to reduce the collective volume of the annual Dutch greenhouse gas emissions, or have them reduced in such a way that by the end of 2020, this volume will
be reduced by at least 25 %, compared to 1990 levels. Other supporters for this cause are being mobilised in the USA and other foreign countries by “Our
Children’s Trust” (USA) 74.
Towards a renewed juridical humanism: tensions between urgency and due process
P4. An age-based differential treatment (be it explicit or not) necessarily leads to a differential treatment between age groups but not necessarily between birth cohorts.
P5. A date-of-birth-based differential treatment (be it explicit or not) necessarily leads to a differential treatment between birth cohorts and can always be re-characterized as a (temporary) age-based differential treatment.
7. I will not go into the details of claim P4 and will refer the readers to other writings in this respect. 10 The key idea in P4 is one of “complete-life neutrality” of age criteria. If certain conditions
are met, age limits may not lead to any differential treatment between different individuals over their complete life. Being prevented from working
before the age of 14 or from voting before the age of 18 may affect us all to the same extent, despite the fact that at any given point in time, it entails
that some enjoy a given right and others not. This is one of the features that render age “special” as a suspect ground of differential treatment. A
further idea is that age limits can sometimes serve to increase equality between birth cohorts.11
However, what matters more to us here is that sometimes, one may be tempted to list “age” and “date of birth” separately among the suspect grounds of
anti-discrimination provisions. Claim P5 suggests that this is not needed as one can always re-characterize any date of birth limit as an age limit,
at least during transition. This means that any differential treatment between birth cohorts can be re-characterized not necessarily as a differential
treatment between age groups, but as an age-based differential treatment. If I claim thatany person born after date x will not be entitled to z, this is equivalent to claiming that any person not having reached the age of y at date x+y will not be entitled to z.12 Date-of-birth-based differential treatment potentially falls, for this reason, within the scope of anti-age-discrimination legislation. While not every
age-based differential treatment amounts to a date-of-birth-based differential treatment (P4), every date-of-birth-based differential treatment, amounts to
an age-based differential treatment, at least during a transitory period (P5).
As a way of illustrating this, imagine that we are in 2018 and that the electoral system still prevents those below 18 from voting. In line with P4, it
does not necessarily mean that a differential treatment between birth cohorts follows, as every birth cohort may be subject to the same degree of
disenfranchisement before the age of 18. Imagine now that we are still in 2018 and that instead of disenfranchising those below 18, the electoral system
disenfranchises those born after 2000. It means that cohorts born after 2000 will be disenfranchised possibly over their whole life. It also entails, in
line with P5, that those aged less than 18 in 2018 will be treated differently from those who are more than 18 in 2018.
What this amounts to is that anti-age-discrimination law opens the gate to scrutinizing legislation on grounds of concerns for impartiality between age
groups but also for impartiality between birth cohorts. P5 thus allows for a twofold reading of anti-age-discrimination law, i.e. a reading that links it
both to concerns for a fair treatment of various age groups (age-groups reading) and for a fair treatment of various birth cohorts (cohortal reading). The
two concerns may be present with unequal respective intensity, depending on the practice under scrutiny.
8. Do we find support in the actual (case) law for such a twofold reading of anti-age-discrimination law, especially in the ECJ case law? The answer is
“yes”. Consider first the rationale of existing legislation that relies on age limits. For the reasons we just provided, it should be re-read with the
age-group/birth cohort distinction in mind. Admittedly, a whole set of measures are clearly grounded on age-group-related concerns. Prohibiting child
labour aims at guaranteeing that children are not being exploited on the job market, at making sure that they have less reasons not to join schools, etc.
Similarly, rules regarding sexual majority or criminal liability clearly assume some age-related competence. The age at which this competence is being
reached may of course evolve with time, which suggests that cohort effects may play a role too. However, such examples primarily involve age effects. Other
age-based practices are less unilaterally age-group-focused and are more plausibly read as involving justice between birth cohorts concerns to a more
Let us look in this respect at the expressions used by the ECJ in age discrimination cases to characterize the possible justification for age distinctions
in domestic law. Expressions include “sharing out among the generations employment opportunities » (Petersen, C-341/08, § 65), « sharing
employment between the generations » (Rosenbladt, C-45/09, § 43), “balance between the generations”(Georgiev, C-250/09, § 42; Fuchs & Köhler, C-159/10, § 47), “freeing up posts for younger workers on the labour market” as a legitimate aim (Hörnfeldt, C-141/11,
§ 25). If we accept to read the word “generation” as birth cohort rather than age group, such expressions allow for both an age-group and a cohort-focused
reading. For instance, a concern for mixing academics of different ages (as in the Georgiev case) can be understood as a concern for mixing
different approaches that result both from cohortal and from age differences. Similarly, compulsory age-based retirement is probably driven by both
age-group focused concerns and by cohortal concerns. What matters to us here is that the expressions used by the ECJ above allow and sometimes privilege a
cohortal reading of age-related issues. The concern for job sharing is arguably philosophically more robust if it is about sharing between birth cohorts
rather than between age groups.
9. However, while it is of interest to indicate that cohortal concerns can drive the use of age criteria, and that the ECJ may acknowledge and
endorse such concerns, it does not necessarily follow that cohortal concerns drive anti-age-discrimination law. One further step is thus needed.
Interestingly enough, we have good reasons to take that extra step. In one case, i.e. Commission v. Hungary (C-286/12), the ECJ has clearly argued
in a way such that her concerns underlying the rejection on age-discrimination grounds of a measure can only be read as concerns for differential
treatment (and discrimination) between birth cohorts and not between age groups. There is no room for a detailed analysis of this case here but the
case for this cohortal reading of the ECJ’s judgment has been argued for on two grounds in detail elsewhere. 13
10. To sum up, what matters is that the ECJ case law allows for two views. It allows for a twofold interpretation of the rationale underlying several
age-based measures that were challenged in front of her, i.e. as measures driven both by age-group and by birth-cohort-focused concerns. However, and more
importantly, in one case (Commission v. Hungary), it even interpreted – probably without fully realizing it - the prohibition on age discrimination as a prohibition on discrimination between birth cohorts.
This establishes the legal plausibility of a twofold reading of the rationale of both age-based measures (some aim at increasing justice
between age-groups, other aim at increasing justice between birth cohorts, and several of them aim at achieving both) and, more importantly, of anti-age-discrimination law (one may end up rejecting age-based measures out of concern for justice between age-groups and/or between birth
cohorts). I hope to have established at this stage that treating problematic environmental degradation as an issue of age discrimination can make sense
philosophically (section 1). And I hope to have shown as well that there is room, legally speaking, for a cohortal reading of anti-age discrimination law
(section 2). We now need to go one step further. We have to check whether there is legal room for applying anti-age-discrimination law - and its
cohortal reading - to environmental issues.
3. Age discrimination and the environment
11. What are the implications of this twofold reading? One way of answering consists in finding out about the conditions under which
anti-age-discrimination law can be used for broader purposes such as challenging debt policy, pension reform, or insufficient environmental protection,
just to take a few examples. I will go through a set of requirements that should be met for the strategy to work in practice, i.e. to be able to use the
prohibition on age discrimination to challenge such measures. And for the sake of this argument, I will limit myself to the case of environmental
degradation. I will look into issues of personal and of material scope. Before proceeding, let me mention two points. Contrary to the US “environmental
justice” cases referred to above (supra n° 3), age discrimination cases do not require the demonstration of a discriminatory intent.
Moreover, while the environmental cases we have in mind here would tend to be cases of indirect discrimination, this does not seem to make much
difference in the specific case of age as the room for admissible justifications tends to be already broader for age in direct discrimination cases than it
is for other suspect grounds.
3.1. Personal scope
12. A first consideration has to do with the distinction between legal and natural persons. One way of reaching further into the future in
litigation consists in trying to rely on the additional life expectancy of the plaintiff. This entails that relying on young plaintiffs may be a good
strategy as the above-mentioned Minors Oposa, Atmospheric Trust and Urgenda cases illustrate. Alternatively, environmental litigation
may also invoke harm, discrimination and right violation to the detriment of legal as opposed to natural persons. Given the indefinite life
expectancy of legal persons, this is an interesting strategy too.14 However, for the present purposes, it
seems that age discrimination claims may only apply to cases of discrimination against natural persons, contrary to claims of discrimination based on
nationality for instance that can apply to legal persons too.
13. Another aspect of the personal scope of the age discrimination strategy against environmental degradation is that some legal systems may allow
for claims across the whole lifespan whereas other legal systems are concerned about age discrimination above or below a certain age limit only. US
anti-discrimination law illustrates the case of a limited scope in this respect as it is only concerned with discrimination between individuals located
above the threshold age of 40. At first sight, one may insist on the fact that this still leaves open challenges that would have to do with environmental
degradation between now and the number of years ahead corresponding with the additional life expectancy of plaintiffs who are in their early 40s.
However, the difficulty might be more significant than that in the US case. It may well be that a legislation with a restricted age scope such as the US
one can only be plausibly read as expressing age-group-focused as opposed to cohortal concerns. If the concern were cohortal, why would one restrict it to
discrimination between certain cohorts as opposed to all coexisting cohorts? This major difference between the US and the EU system may have remained
unnoticed so far. If this claim is plausible, it entails that an anti-age-discrimination legislation with a restricted age scope cannot be applied to cases
of environmental degradation. This is so because such an “extensive” strategy presupposes a cohortal reading of anti-age-discrimination law. The same
consideration may also apply to legal systems that, while covering the whole age range, would systematically exhibit a stronger concern for
differential treatment against the elderly than for differential treatment against the young. In such cases too, a cohortal reading of
anti-age-discrimination would not be plausible. In Canada, the 1999 Law v. Canada Supreme Court decision (1 SCR 497) suggests a stronger concern for
older than for younger people. However, it is related to the specific purpose of the type of pension regime at stake and does not need to entail a general asymmetry in concern across the age range. Be that as it may, in the EU, we have a full age spectrum anti-age-discrimination law. This means
that a cohortal reading is perfectly possible in such a context.
3.2. Material scope
14. Insofar as the material scope of anti-discrimination law is concerned, interesting questions arise as well. For instance, considering the scope
of directive 2000/78/EC as defined in its art. 3, while applicable to employment matters, vocational training and occupational pensions, it does not
apply at all to environmental matters. There are basically two mutually compatible strategies to overcome this material scope limitation. One consists in
looking for other grounds than Directive 2000/78/EC within the EU system to condemn age discrimination (call it the “EU Law Strategy”). The other consists
in taking the domestic law avenue, taking advantage of the fact that in many domestic systems in the EU, the material scope of anti-age-discrimination law
is broader than the one of Directive 2000/78/EC (call it the “Domestic Law Strategy”).
Let me first explore what the EU Law Strategy could consist in. A typical case would need to articulate three elements. First, we would need
to identify a EU directive allowing for environmental degradation in a way deemed discriminatory between birth cohorts. Second, we would need to
rely on a prohibition on age discrimination independent from Directive 2000/78/EC, given the latter’s too narrow scope. One interesting element in this
respect is the claim, inaugurated by the ECJ in its 2005 Mangold (C-144/04) case, that “The principle of non-discrimination on grounds of age must
(…) be regarded as a general principle of Community law” (§75).15 This position was confirmed in the 2010 Kücükdeveci (C-555/07) case. The Court stated that “it is the general principle of European Union law prohibiting all discrimination on grounds of
age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such
as that at issue in the main proceedings.”(§27).16 As a general principle, its material scope is
definitely broader than the material scope of Directive 2000/78/EC.
, we would need to be able to rely on a general right to a healthy environment at the EU level. There does not seem to be such a general right at the EU
level. However, the possibility of invoking substantive environmental rights directly has been recognized by both the ECJ and the ECtHR. The ECJ confirmed
in its 2008 Janacek judgment (C-237/07, § 37-38) that an affected citizen can invoke the air or water quality standard of a directive directly,
especially when it relates to health concerns, whenever it has not been properly implemented by state legislation. Adding the age discrimination dimension
to such a Janecek approach would be an option. Note as well that insofar as the ECtHR is concerned, environment-related health concerns are being
approached through the lense of the right to privacy (art. 8, ECHR) rather than of the right to life (art. 2, ECHR). 17
The Domestic Law Strategy seems much more promising. First, a plaintiff would need to identify an administrative decree or an Act that allows
for environmental degradation such that it can be deemed discriminatory between birth cohorts. Second, it would need to invoke the domestic
legislation against age discrimination. Provided that the latter’s scope is broad enough, it could apply to the allegedly discriminatory act in question.
The best strategy would probably consist in identifying a country in which the material scope of the anti-discrimination Act is especially broad and then
to creatively explore connections with environmental issues. Countries in which a general principle of non-discrimination obtains on top of specific
anti-discrimination legislation may be a good place to start too. This may not be straightforward of course. In Belgium for instance, the May 10, 2007
Anti-discrimination Act, as revised in 2013, is applicable to age and has a broader scope than the 2000/78/EC directive since it applies e.g. to goods and
services too (art. 5). However, it explicitly excludes its applicability to subject matters that are within the jurisdiction of the Belgian federate
entities, which is the case for many environmental issues.
, the plaintiff may invoke the violation of her fundamental, general right to a healthy environment. Such a right is recognized at the constitutional level
in several EU countries as well as in numerous countries outside the EU.18 Note that there is no need
here for rights specifically granted to future generations. A plain right to a healthy environment applicable to already existing people would do for the
present purposes.19 Moreover, the plaintiff could even invoke more directly the fact that a given
environmental legislation is discriminatory without having to refer to a general, constitutional right to a clean/healthy environment. The plaintiff could
stress the fact that e.g. a given industrial project would be incompatible with the non-discriminatory application over time of a specific domestic
environmental water or air standard.
Whereas the EU status of a right to a healthy environment thus seems to be the main limiting factor for a EU Law Strategy, the key element for the Domestic
Law Strategy seems to rest with the material scope of domestic anti-age-discrimination provisions. Note as well that one possible domestic strategy of
limited scope would consist in relying on the Charter of Fundamental Rights of the EU.20 The material
scope of its non-discrimination principle, that includes age among the suspect grounds, is extremely broad (Sect. 21), which is relevant for our extension
to environmental issues. However, it only applies to Member States when they are implementing Union law (art. 51). We could thus imagine a plaintiff
opposing an environmental law or regulation that implements a EU environmental directive because of its incompatibility with art. 21 of the Charter on age
15. This paper has sketched a possible strategy to challenge decisions that are unfair towards successive birth cohorts, more specifically in the
environmental realm. It involves a reading of anti-age-discrimination law that is extensive in two ways. It is extensive in a first way insofar as
it invites us to adopt a cohortal reading of anti-age-discrimination law, besides a more straightforward age-group focused one. We have seen that
such a cohortal reading only makes sense if the anti-age-discrimination principle or law applies across the full age spectrum, which tends to be the case
in European systems, but not in the US. We have also shown that such a cohortal reading of anti-age-discrimination law, besides making sense in general, is
actually endorsed by the ECJ in the Commission v. Hungary case.
Our approach is also extensive in a second sense. It invites us to explore the implications of anti-discrimination law in areas to which we tend to apply
it less, here in the environmental area. It is here that it will probably require more creativity, through relying on general non-discrimination
principles, and through drawing analogies with other, non-environmental problems such as the non-sustainability of pension schemes or of health care
This paper has explored one litigation avenue that could be experimented as part of a package aimed at challenging the shortcomings of our environmental
regimes. We believe that it is a promising avenue for three reasons. First, our legal systems already contain rules and principles against age
discrimination, as well as a growing body of case law. Second, there is a very straightforward connection between a concern for age discrimination
and issues of fairness between birth cohorts, such that it allows for a cohortal reading of anti-age-discrimination law. Third, concerns for justice
between birth cohorts are central to claims for environmental sustainability.
Whether this can be turned into real, successful cases will depend on the resources of the legal systems at stake. It will also depend on the ability of
plaintiffs to transform a vision into conclusive legal argument, maximally exploiting the potential of existing anti-discrimination law while not forcing
judges to go beyond what separation of powers allows, or, in the case of the ECJ, leaving enough margin of appreciation to member states.