Playing the long game: considering the interests of young people and future generations in climate law-making
Creators: name: van Dijk, Nicky
Publisher: name: University of Tasmania
Year: 2024

description: While climate change threatens the well-being of young people and future generations, we exclude them from the law-making that shapes their future. This dissertation asks whether, to what extent, and how we can and should consider their interests in climate law-making in a fair and effective way. The thesis starts by introducing the problem of wrongful short-termism in society. After arguing in favour of the normative case for considering the interests of future people in law-making, the author gives an overview of proposed solutions ensuring that this happens: a plethora of so-called institutions for the future. Building on the normative background of the capability approach, the author formulates an evaluative framework that can be used to assess the intergenerational justice of institutions for the future. This framework can be used to evaluate and improve already existing institutions, and to assess proposals for new institutions on their merits for a given time and context. This evaluative framework is then used to analyse two case studies: a communication by 16 children to the UN Committee on the Rights of the Child from 2019, and the 2020-2021 Scottish Climate Assembly. These different parts of the thesis build to a conclusion that is realistic about the fairness and effectiveness of institutions for the future and shows hope for intergenerationally just climate law-making.<b>Summary </b><br>Climate change, especially 1.5°C global warming compared to pre-industrial levels (ca. 1850-1900) and above, will have an immense influence on the living conditions of our future selves, the future lives of young people, and future generations. However, people who are not yet born cannot speak up for themselves, and young people are rarely included in decision-making that will shape their future. On top of this, many domains of society are largely short-term oriented. Our ethical and political theories, our economic system, and even our own psychology is not designed to give due consideration to the long-term consequences of our actions. In turn, we also see this short-term focus in political and legal institutions. In the literature, the unjustifiable focus on the present at the cost of the future is called wrongful short-termism. In response to this problem, this dissertation asks whether, to what extent, and how we should consider the interests of future people fairly and effectively in international and national climate law-making.<br>Fortunately, there is largely a consensus that we do have some form of intergenerational obligations towards the future. The reasons behind these obligations differ from culture to culture and between ethical theories. However, they agree that at the very least the current generation should, where possible, protect the basic ‘capabilities’ of future people. The capabilities referred to here are real opportunities that people have reason to value, such as being able to eat sufficiently nutritious food or to have access to essential health care. To promote the protection of these capabilities in the future, a myriad of ‘institutions for the future’ or ‘institutions for future generations’ (which will henceforth be known as F-institutions) have been proposed in the literature, and some have already been implemented in practice.<br>The forms F-institutions have taken vary greatly. Some are formal additions to political or legal institutions, such as the establishment of an ombudsperson for future generations or creating a constitutional provision regarding the right to a sustainable future. Others are smaller-scale and symbolic actions such as asking policy-makers to keep a pair of children’s shoes on their desk to remind them of the long-term consequences of their proposals. These proposals for F-institutions vary greatly in how effective they are at protecting the capabilities of future people, how substantive and procedurally fair they are towards different human (and non-human) beings, and how feasible they are to implement.<br>With this background in mind, this research has three objectives. Firstly, I specify some normative considerations related to intergenerational justice, specifically relating to the obligations of current generations towards future people in the context of climate change. Secondly, I develop a comprehensive and action-guiding framework that policy-makers, scholars, activists, and other people and groups can use to evaluate new proposals for F-institutions, or to reform F-institutions that have already been established. Thirdly, I use this framework to evaluate the fairness and effectiveness of certain existing F-institutions, and draw conclusions for future policy reform. I will discuss each of these three parts of the thesis in more details.<br>After the introduction in Chapter 1, in Chapter 2, I use the ‘capability approach’ to set the normative background for this dissertation. I re-interpret some of the central pillars of the capability approach—agency and diversity—in the intergenerational context, in order to guide procedural justice concerns. I then formulate a capability set for future people, outlining the opportunities that future people have reason to value. In the remainder of this dissertation, I will conceptualise and measure substantive intergenerational climate justice in terms of the extent to which F-institutions are able to safeguard the defined capability set of future people. The normative background established in Chapter 2 feeds into the evaluative framework of Chapter 3, and also provides answers to a number of problems formulated in the literature concerning intergenerational justice (such as the plurality, indeterminacy and non-identity problem). While my research is framed in terms of the <i>consideration</i> of future people in climate law-making, I will also reflect on how we can understand <i>representation</i> when the group of people we want to represent, future generations, is not yet born.<br>In Chapter 3, I use the normative background grounded in the capability approach to propose an evaluative framework that can help to either select suitable new F-institutions or improve pre?existing ones. The framework, developed with co-author Jonathan Hoffmann, consists of four criteria—effectiveness, political feasibility, institutional sustainability, and moral legitimacy—and discusses how to evaluate each criterion individually as well as how to combine them and trade them off.<br>In Chapters 4 and 5, I use the evaluative framework outlined in Chapter 3 to investigate two case studies. These case studies were selected as they represent F-institutions that have not been researched extensively by others—I focus on F-institutions that give a voice to the concerns of future people in a unique way but nonetheless remain relatively feasible to implement. The case studies are the communication procedure of the United Nations (UN) Committee on the Rights of the Child, and the 2020-2021 Scottish Climate Assembly. These chapters suggest reforms to the F-institutions that are investigated to further improve their intergenerational justice, and analyses what lessons we can learn from them for the improvement of other F-institutions.<br>In the concluding remarks I discuss some overarching contributions of the dissertation, such as the value of letting people—including young people—speak for themselves, the need for diversity of voices and perspectives, and how to cope with the limited effectiveness of most proposed and established F-institutions. I also comment on how we can and why we should get rid of two very persistent misconceptions in discussions about F-institutions: the intergenerational competition between the present and the future, and the human-nature dichotomy. After discussing some limits to this dissertation, I suggest a few possibilities for future research. Since wrongful short-termism is a problem that is deeply engrained in so many facets of (climate) law-making, looking for a silver bullet would be futile. It will be the smaller steps forward that—together—can lead to a fair, effective, and feasible way to consider future people in climate law-making.<br><br><br>