What is the value of fundamental rights if the ecological conditions necessary to exercise them are disappearing?

 

Human rights cannot be separated from the ecological conditions that make human life possible. Clean air, safe water, healthy soil, biodiversity and a sufficiently stable climate support health, housing, food production, economic security and social participation. When these conditions deteriorate, civil liberties and social rights also lose much of their practical meaning⁷¹⁴.

Environmental protection should therefore be treated as a constitutional foundation of human dignity and autonomy rather than merely one policy area among many.

Two related but distinct constitutional tracks are required. Constitutional ecology protects present people and shared ecological systems through substantive and procedural guarantees. Intergenerational responsibility requires present institutions to preserve sufficient ecological, social, financial, technological, and democratic room for future choice. The first asks what conditions require protection now; the second asks what burdens and irreversibilities present power may transfer forward.

Stronger protection is necessary because environmental problems are interconnected, cumulative and frequently irreversible. Climate change, biodiversity loss, pollution, resource depletion and ecosystem degradation reinforce one another. Damage often results from the combined effects of many individually authorized activities, making it difficult to identify a single unlawful source⁷¹⁵. Regulation that examines each permit or emission separately may consequently overlook serious total exposure within a neighborhood, region or ecosystem.

Environmental burdens and benefits are also distributed unequally⁷¹⁶. Low-income households often have fewer opportunities to avoid polluted areas, improve their homes or obtain legal and technical assistance. Children, older people, people with disabilities and those with chronic illnesses may be more vulnerable to heat, pollution and infrastructure failures. Workers can face environmental risks through economically dependent employment, while affluent households are better able to benefit from green technologies and healthier surroundings. Environmental protection must therefore address not only average environmental quality but also who bears the risks, who receives the economic benefits and who pays for the transition.

Private organizations exercise substantial ecological power through production, investment, infrastructure, data and global supply chains⁷¹⁷. Governments and citizens may depend on information produced by the same companies whose activities are being evaluated. Complex corporate structures can also disperse responsibility across subsidiaries, suppliers and countries. Public authorities must therefore ensure independent information, effective supervision, transparent supply-chain responsibilities and access to remedies. Economic activity and innovation remain essential to the ecological transition, but environmental and health costs should not be transferred systematically to citizens and public budgets while profits remain private.

An ecological minimum should protect conditions whose serious degradation foreseeably threatens life, health, safe water, habitable housing, food security, or the functioning of essential ecosystems⁷¹⁸. Its concrete application should draw on binding legal standards, authoritative scientific evidence, cumulative exposure, and the vulnerability of affected populations. Science can establish risks and thresholds; public institutions must still justify the legal margin of safety and the distribution of costs.

A constitutional environmental right would provide three mutually supporting forms of protection. Individuals would gain protection against serious harm to their living environment. Government would carry a broader responsibility for ecological systems even when immediate individual injury is difficult to prove. Procedural guarantees would enable citizens to obtain information, participate before decisions become effectively irreversible and challenge inadequate action or enforcement⁷¹⁹.

Prevention should address known and reasonably foreseeable harm before compensation becomes the only remedy. Precaution becomes relevant where credible evidence indicates a risk of serious or irreversible damage but important uncertainty remains⁷²⁰. Authorities should then identify the evidence, severity, reversibility, affected groups, alternatives, and costs of action and inaction. Precaution justifies proportionate protective steps and continuing review; it does not eliminate the need to compare options or disclose uncertainty.

Environmental justice would become part of policy design. Authorities would have to examine cumulative exposure, vulnerable groups and regional differences rather than relying exclusively on national averages⁷²¹. The transition towards cleaner energy, transport and production would need to remain socially fair. Support, affordable alternatives and neighborhood-level investment may be necessary to prevent climate and environmental policies from placing disproportionate burdens on households unable to finance adaptation themselves.

Every major transition measure should identify who pays initially, who benefits, which groups face stranded assets or employment losses, and which alternatives are realistically available.

Support should prioritize essential consumption, vulnerable households, affected workers, and regions with limited adaptive capacity. Compensation need not preserve every incumbent activity, but transition policy should not make constitutional protection conditional on a person’s ability to purchase a cleaner alternative.

The principle that polluters should bear the costs of prevention and restoration would discourage the privatization of benefits and socialization of damage⁷²². Where historical or diffuse pollution makes individual liability difficult, collective restoration or compensation mechanisms may be needed. Existing activities and permits would not automatically become invalid, but high-risk operations based on outdated information or technology could be reassessed and required to reduce, repair or eventually end harmful practices.

For government, the reform would make environmental protection relevant throughout legislation, planning, licensing, procurement and infrastructure investment. Authorities would need to assess climate, biodiversity, air, water, soil, health and distributive consequences together. Environmental data, assumptions, monitoring methods and enforcement outcomes should be publicly accessible. Regulators would require sufficient expertise, independence and stable funding, while responsibilities among national, regional and local authorities would have to be clearer.

Courts would protect ecological minimums and correct serious failures without becoming alternative environmental policymakers. Close scrutiny would be appropriate when life, health, housing or essential environmental quality is seriously threatened, binding limits are ignored, or rights to information and participation are violated. Broader programs involving energy, agriculture, infrastructure and public spending would leave government more discretion, provided policies are coherent, scientifically informed, reasonably capable of meeting their objectives and monitored in practice.

Environmental protection inevitably has a long-term dimension, but responsibility towards future generations extends further⁷²³. Present decisions also leave social systems, public debt and assets, infrastructure, knowledge, digital technologies, administrative capacity and democratic institutions to those who come later. Neglected maintenance, persistent housing shortages, weakened education, unmanageable digital dependence or erosion of the rule of law can constrain future freedom just as severely as ecological damage.

Future people face a structural deficit of representation⁷²⁴. They cannot vote, participate in consultations, form interest groups or challenge current decision-makers. No present institution can speak for future people with complete authority. A future-generations body should therefore represent neglected time horizons rather than presumed preferences. Its task is to disclose irreversible effects, long-lived risks, scientific uncertainty, transferred liabilities, and alternatives that preserve future democratic choice. It may require information and a reasonable response, but final authority remains with constitutionally competent institutions subject to rights, public deliberation, and judicial review.

 

Political and budgetary cycles favor benefits that are visible now, while costs arising decades later are easier to defer. Current industries, voters and organizations can mobilize resources to defend their interests; future people cannot provide equivalent opposition. Slowly accumulating and uncertain damage is therefore systematically at risk of being undervalued.

This does not justify treating future people as identifiable legal claimants whose preferences can already be known. Their circumstances, values and choices are uncertain, and no current institution can claim an exclusive mandate to speak on their behalf. The more appropriate approach is to impose responsibility on present institutions. Legislators and public authorities should investigate foreseeable long-term consequences, disclose uncertainty, compare alternatives and justify decisions that transfer serious or irreversible burdens into the future.

Intergenerational responsibility would not prohibit every future obligation. Public debt, long-term contracts and infrastructure commitments may be justified when they finance education, housing, scientific knowledge, climate adaptation or other assets that expand future opportunities. The correct question is not whether a decision has consequences for later generations, but whether the combination of burdens and benefits is proportionate and defensible. Public assets, institutional capacity, avoided damage and ecological resilience must therefore be considered alongside financial liabilities.

Nor would the objective be to preserve every present option indefinitely. All political choices close some possibilities and create others. The constitutional concern arises when current decisions destroy essential living conditions or future democratic room for manoeuvre without compelling justification. Long-term responsibility should preserve sufficient ecological, social, financial, digital and institutional space for later generations to make meaningful choices of their own.

Major legislation, budgets, infrastructure projects and technological systems would consequently require transparent long-term assessment. Because the future cannot be predicted precisely, such assessments should use multiple scenarios rather than one supposedly certain forecast. They should examine not only the proposed action but also the consequences of delay or inaction.

Time horizons should reflect the subject: digital systems, infrastructure, pensions, climate change and hazardous waste operate on very different timescales.

Enhanced assessment should be triggered by decisions involving large irreversible effects, long-lived infrastructure or liabilities, material ecological thresholds, or major constraints on future democratic choice. The assessment should be proportionate, use multiple scenarios, identify distribution across generations, and state measurable assumptions. It should then be linked to monitoring and a scheduled reconsideration point; an assessment that never changes a decision or triggers review becomes procedural paperwork rather than constitutional foresight.

A future-generations institution should have powers to obtain information, require long-term assessment, publish warnings, and demand a reasoned governmental response. It should not veto budgets or legislation, claim exclusive representation of future people, or convert one forecast into binding policy. Its membership, methods, scenarios, conflicts of interest, and uncertainty should be public, and its performance should be reviewed independently. Democratic authority remains with elected institutions, but silence about long-term burdens would no longer be acceptable.

Judicial protection would remain limited but meaningful. Courts could examine whether serious long-term effects were investigated, alternatives considered, uncertainty disclosed and severe

burden-shifting adequately justified⁷²⁵. More intensive scrutiny would be appropriate where elementary living conditions face irreversible damage. Courts would not determine budgets, technological strategies or climate pathways themselves; they would ensure that the future does not disappear from present constitutional reasoning.

These reforms carry risks. Open ecological and intergenerational principles could increase litigation, bureaucratic assessments and disagreement about scientific evidence. Independent institutions might acquire excessive technocratic influence, while claims about the future could be used to legitimize present political preferences. Long-term investments could also compete with urgent needs such as poverty reduction, healthcare and housing. Future interests must therefore never automatically override the dignity and minimum rights of people living today. Transition costs should be distributed fairly and vulnerable groups protected.

Implementation would require scientific expertise, reliable public data, stronger regulators, meaningful participation, legal assistance and stable funding. Environmental and long-term assessments should be integrated into existing legislative and budgetary processes, so they improve decisions instead of becoming additional paperwork. Monitoring must lead to adaptation, enforcement and public accountability rather than the production of reports without consequences.

Together, constitutional ecology and intergenerational responsibility would protect both present living conditions and future freedom. The first would establish that ecological systems form part of the constitutional foundations of human life. The second would require present institutions to consider the wider inheritance they create across environmental, social, financial, technological and democratic domains. Neither reform would prescribe a fixed environmental policy or predetermined future⁷²⁶. Their purpose is to ensure that short-term power cannot consume essential common conditions without transparent reasoning, democratic accountability and opportunities for correction.

 

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714 United Nations General Assembly, The Human Right to a Clean, Healthy and Sustainable Environment, A/RES/76/300 (2022), https://digitallibrary.un.org/record/3983329/files/A_RES_76_300-EN.pdf; UN Human Rights Council, A/HRC/RES/48/13 (2021).

715 Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Geneva: IPCC, 2023); Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, Global Assessment Report on Biodiversity and Ecosystem Services (Bonn: IPBES, 2019).

716 David Schlosberg, Defining Environmental Justice (Oxford: Oxford University Press, 2007); European Environment Agency, Unequal Exposure and Unequal Impacts: Social Vulnerability to Air Pollution, Noise and Extreme Temperatures in Europe, EEA Report 22/2018.

717 UN Guiding Principles on Business and Human Rights (2011); OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (2023); Directive (EU) 2024/1760 on Corporate Sustainability Due Diligence.

718  Treaty on the Functioning of the European Union, art. 191(2); OECD, Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies, OECD/LEGAL/0102.

719  United Nations, Declaration on Future Generations, annex II to A/RES/79/1 (2024), https://www.un.org/en/summit-of-the-future/declaration-on-future-generations; Edith Brown Weiss, In Fairness to Future Generations (Tokyo: United Nations University, 1989).

720  Dennis F. Thompson, ‘Representing Future Generations: Political Presentism and Democratic Trusteeship,’ Critical Review of International Social and Political Philosophy 13, no. 1 (2010): 17–37; Iñigo González-Ricoy and Axel Gosseries, eds., Institutions for Future Generations (Oxford: Oxford University Press, 2016).

721  European Convention on Human Rights, arts. 2 and 8; European Court of Human Rights, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], App. No. 53600/20, Judgment of 9 April 2024; Supreme Court of the Netherlands, State v. Urgenda Foundation, ECLI:NL:HR:2019:2007 (English), https://uitspraken.rechtspraak.nl/details?id=ECLI%3ANL%3AHR%3A2019%3A2007.

722  Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), arts. 4, 6–9, https://unece.org/environment-policy/public-participation/aarhus-convention/text.

723  Rio Declaration on Environment and Development (1992), principles 15–17; European Commission, Communication on the Precautionary Principle, COM(2000) 1 final.

724  International Labour Organization, Guidelines for a Just Transition towards Environmentally Sustainable Economies and Societies for All (Geneva: ILO, 2015); IPCC, Climate Change 2022: Mitigation of Climate Change, chapters on equity and just transitions.

725 Jonathan Boston, Governing for the Future (Bingley: Emerald, 2017); OECD, Recommendation on the Governance of Infrastructure, OECD/LEGAL/0460 (2020).

726  United Nations, Declaration on Future Generations, paras. 34–36; Peter Lawrence, Justice for Future Generations (Cheltenham: Edward Elgar, 2014)