Due Regard for Future Generations

Future generations will have to deal with the catastrophes, costs and strategic considerations accompanying climate change. Yet international climate law is often insufficiently focussed on respect for future generations’ interests. “What if international law includes a requirement of due regard for future generations that has not yet been fully recognised?”, she asks.

Her article argues that the widely recognised international law “no harm” rule requires that future generations' interests be properly considered and addressed appropriately, commensurate with what is at stake. At a minimum, this may require avoidance of ‘manifestly excessive adverse impacts’.

This argument may also be useful in climate litigation in domestic courts, particularly in light of the United Nations Declaration on Future Generations at the UN Summit for the Future held on 22-23 September 2024 as part of the United Nations Pact for the Future adopted by UN Member States.

However Professor Foster’s article focusses on UN General Assembly’s request to the International Court of Justice for an Advisory Opinion on States’ obligations in respect of climate change, and advocates consideration of this argument in that setting.

The background leading up to the idea for the article lay in Professor Foster’s previous research demonstrating how international courts and tribunals are increasingly articulating a standard of due regard for others’ legal rights and interests (Foster). ‘Due regard” is a way to express and give effect to the balance of rights and interests inherent in a variety of rules and bodies of international law. Due regard appears to be a modern expression of the abuse of rights doctrine. But a more affirmative one, because due regard requires that states actively consider others’ rights and legal interests. This led Professor Foster to identify a potential procedural requirement of due regard for future generations.

Colleagues urged her to consider whether due regard might have substantive bite. Here the article refers to the International Court of Justice (ICJ)’s jurisprudence concerning the exercise of sovereignty as well as selected international arbitral cases. Notably, the ICJ has indicated that sovereignty should be exercised in ways avoiding “manifestly excessive adverse effects” for others, as seen in Navigational Rights (Costa Rica v. Nicaragua), also taking into account Certain Iranian Assets (Iran v. United States). Simultaneously, at the theoretical level, due regard is consistent with the understanding that sovereignty should be other-regarding in an interdependent world, and the views of those who are affected by governments’ decisions should be considered (Benvenisti, 2013).

Professor Foster’s thinking also builds on work by scholars including Sands, Peel, Fabra and Mackenzie who have already previously told us that sustainable development reflects a range of procedural and substantive commitments and obligations - including “the need to take into consideration the needs of present and future generations”.

The idea of due regard for future generations also resonates with recent exercises in contemporary moral philosophy on climate change (Mulgan, 2018). At the same time it runs alongside aspects of indigenous culture and thinking about relationships with future generations (Watene). It will be interesting to see what the International Court of Justice may make of the matter in its important forthcoming Advisory Opinion.