Placing future generations at the heart of Inter-American human rights law?

A key aspect of the rich and long-awaited Inter-American Court of Advisory Human Rights Advisory Opinion 32/25 on Climate Emergency and Human Rights (AO-32) is the treatment of future generations (FG) with regard to Inter-American regional human rights protections. (A general discussion of the decision is here). The position of FG and their rights under international human rights law (IHRL) is the subject of growing attention in both scholarly, policy and practice circles and the Advisory Opinion marks an important milestone in this regard.

This post will explore the Court’s approach to FG in AO-32, highlighting opportunities taken – and those avoided – in terms of advancing FG rights protection under Inter-American human rights law.  In doing so, it will highlight the Court’s contribution in terms of defining who FG are, outlining the scope of FG rights and associated obligations, and addressing the challenge of balancing FG rights with the potentially conflicting ones of present generations It will also criticise the Court’s apparent reluctance to engage concretely with how FG’s rights should be enforced in practice through democratic decision-making and legal action.

An inevitable development?

It was almost inevitable that the Court would engage with the issue of FG rights. Leaving aside the growing prevalence of this area in IHRL generally, including existing jurisprudence of the Court itself (see below), the terms of the Request for an Advisory Opinion submitted by Colombia and Chile in January 2023 directly addressed FG and their rights.

The introduction to the Request flagged that the environmental problems “are jeopardizing future generations” (p.1) and underlined the requesting states’ consciousness “of the relevance of the human right to a healthy environment and its close relationship to a series of substantive and procedural rights that have an impact on the life, survival and development of present and future generations and that are protected by the American Convention on Human Rights … and numerous Inter-American and universal human rights and environmental treaties” (ibid) (italics added). Furthermore, in its section on “The need for inter-American standards to accelerate the response to the climate emergency”, the Request noted that for “for international human rights law, the protection of life, survival, and the rights of individuals, peoples and communities is an essential yardstick. In this regard, it promotes the adoption of measures that take into account current generations in all their diversity, differentiated geographical impacts, and the rights of future generations”. (P.6) (italics added).

One of the specific questions posed to the Court was focused on “the differentiated obligations of States in relation to the rights of children and the new generations in light of the climate emergency” (p.10) (italics added).  However, the questions set out in that section focused specifically on the obligations owed to children rather than “new” (or indeed “future) generations. This may have resulted from definitional confusion arising from the historic lack of clarity around the composition and rights obligations owed to children and FG under IHRL, respectively (explored in Nolan 2024) – and which were arguably reflected in the Court’s pre-existing case-law (discussed in ibid and here). Alternatively, it could be construed as reflecting a certain anxiety on the part of the states in question not to open the door to intergenerational human rights claims for not yet living “future generations” under the Convention.

FG and the principle of intergenerational equity (IGE) were addressed in a significant number of written observations submitted to the Court, including those of OAS organs and states − albeit those issues were not always addressed in rights terms. However, a large number of submissions from IGOs, UN Special Rapporteurs, civil society and academia used the language of FG rights specifically. (More analysis of the submissions is here). These issues were also raised repeatedly during the public hearings.

The Court’s treatment of these issues was also foreshadowed in its pre-existing jurisprudence, notably its celebrated 2017 Advisory Opinion AO-23/17 on the Environment and Human Rights (AO-23) and in the main and concurring opinions in the November 2023 Caso Habitantes La Oroya v. Peru decision. Due to space constraints, this case-law will be discussed only briefly here but a SSRN working paper including a detailed analysis of the Court’s previous engagements with FG and IGE is here.

In AO-23, the Court addressed the rights of FG to a limited degree, stating that

“[t]he human right to a healthy environment has been understood as a right that has both individual and also collective connotations. In its collective dimension, the right to a healthy environment constitutes a universal value that is owed to both present and future generations. That said, the right to a healthy environment also has an individual dimension insofar as its violation may have a direct and an indirect impact on the individual owing to its connectivity to other rights, such as the rights to health, personal integrity, and life. Environmental degradation may cause irreparable harm to human beings; thus, a healthy environment is a fundamental right for the existence of humankind.” (Italics added) (para 56).

AO-23 was certainly not the first time that the Court had made clear that the Convention had implications for FG. As de Salle Cavedon-Capdeville et al (2024) note, in its extensive case-law since 2000 on the rights of Indigenous Peoples, the Court has incorporated the ecological and intergenerational dimensions of human rights into the right to property, “recognizing the traditional territories as a spiritual and immaterial cultural patrimony to be transmitted to future generations”.

In La Oroya, the main opinion addressed the principle of IGE – which would be a key feature of AO-32 – head-on. The Court noted that “[t]he precautionary principle in environmental matters is related to the duty of the States to preserve the environment in order to allow future generations opportunities for development and ensure the viability of human life.” In this regard, the Court noted “that the principle of intergenerational equity requires States to actively contribute through the creation of environmental policies aimed at ensuring that current generations leave behind a stable environment that will allow future generations similar opportunities for development.” (Para128). The main opinion also underlined that “safeguarding the interests of both present and future generations and preserving the environment against radical degradation is essential for the survival of humankind.” (Para 129).

The main opinion was accompanied by a Concurring Opinion (CO) by Judges Ricardo Pérez Manrique, Eduardo Ferrer Mac-Grego Poisot and Rodrigo Mudrovitsch, which also addressed FG and IGE in detail. Notably, the CO explicitly differentiated between FG and children and youth as “present generations” (the main opinion is ambiguous on the FG definitional point), asserted the “personhood” of FG for the purposes of Inter-American human rights protection, and highlighted the asymmetry of power that exists between present and FG.

Bringing it all together

By the time that AO-32  was handed down, it was clear from the Court’s previous jurisprudence that FG were afforded protection by at least some of the rights in the Inter-American human rights schema. However, key questions remained. First, who are FG for the purposes of said protection? Second,  what is the precise scope of FG’s rights (and associated obligations) under that schema? Finally, what is the balance to be struck between the rights of FG and present generations in the case of a potential conflict? All of these issues were addressed at least to some degree in AO-32.  

FG  were engaged with in numerous different parts of AO-32 – albeit that, as discussed further below, not all members of the Court voted in favour of the relevant points.

In setting the scene of the climate emergency, the Court focused on climate adaption needs, explicitly highlighting that “mitigation and adaptation measures need to be scaled up rapidly” (para 194). This was explained on the basis that any delay in these matters means “shifting an extraordinary responsibility to future generations” and increasing the risk of suffering the adverse effects of climate change, especially for the most vulnerable people (Ibid). In doing so, the Court implicitly recalled the “intergenerational burden-sharing” approach of other domestic and regional courts that have addressed climate change cases (see the Bundesverfassungsgericht’s Neubauer ruling and the European Court of Human Rights’ Klimaseniorinnen  decision discussed here and here) – an approach which it incorporated into its analysis more explicitly later on (see below and para 334 in the context of States’ obligation to define and keep up to date a human rights-based strategy to achieve their identified, appropriate mitigation target).

The need to ensure the survival and rights enjoyment of FG was repeatedly addressed by the Court, including in the most jurisprudentially exciting elements of its Opinion – for instance, when justifying its identification of a jus cogens norm in the form of the obligation not to generate damage irreversible to the climate and the environment (see, e.g., para 292). The Court also strongly linked the protection of nature as a subject of rights and the preservation of a sustainable development model that respects planetary boundaries and ensures availability of resources for FG (paras 279 and 316).   The Advisory Opinion furthermore afforded the Court the opportunity to reinforce the inter-temporal nature of the RTHE reiterating that this right has been understood as a fundamental right “for the existence of humanity” (para 272).

One of the most significant elements of AO-32 was the Court’s identification of the right to a healthy climate as a substantive element of the RTHE. This part of the Court’s opinion involved an extensive focus on FG in line with its view that “the right to a healthy climate relates not only to present and future generations, but also to Nature, conceived as the physical and biological foundation of life.” (Para 315).

The Court made clear that the right to a healthy climate – like the RTHE – has both individual and collective connotations, with the latter protecting “the collective interest of present and future generations of human beings and other species in preserving a climate system that is suitable for ensuring their well-being and the balance between them vis-à-vis the severe existential threats from the effects of the climate emergency.” (Para 302). The Court deepened its delineation of the scope of this interest as compared to AO-23, making clear that “the entitlement to this dimension of the right to a healthy climate belongs indivisibly and non-exclusively to the groups composed of those who share in this collective interest.” (ibid).  

According to the Court, failure to comply with international obligations aimed at protecting the global climate system necessarily affects this interest and generates State responsibility. As such “the measures aimed at ending the violation, avoiding its repetition, and redressing the consequences should simultaneously benefit present and future humanity, as well as Nature as a whole.” Therefore, measures aimed at protecting the global climate system must ensure the protection of the collective interest of FG in terms of their right to a healthy climate if they are to align with the American Convention on Human Rights.

The Court continued to say that the individual dimension of the right will be violated when the State’s failure to comply with its obligations to protect the global climate system not only affects that system, “but also leads to the direct violation of the particular rights of one or several individuals”. The Advisory Opinion is not explicit however on whether or not members of FG can qualify as “individuals”/”victims” for the purpose of this individual element and consequently benefit from the state’s duty to make full reparation for the damage caused and individual or collective harm caused to the victim” (para 303).  Nor is this point addressed in the Court’s treatment of access to justice later on in the Advisory Opinion (see below).

AO-32 also saw the Court going significantly further than it had previously in terms of dealing with IGE and FG.

Drawing on its findings in La Oroya, the Court underlined the increasing recognition of the principle of IGE in international law standards and the work of international law bodies, in the national legal frameworks in the Americas, as well as in its case-law on Indigenous Peoples (paras 306-8). At the same point in the Advisory Opinion, the Court noted the emerging tendency to recognise FG as possessors of rights, citing the Maastricht Principles (para 307). It recalled that it had previously indicated that, in accordance with the principle of IGE, States must actively contribute through policies so that present generations “leave behind a stable environment that will allow future generations similar opportunities for development”. (Para 308). As such, IGE is closely related to the principles of prevention, precaution and progressivity (Ibid).

In the same paragraph, a footnote citing the Court’s Indigenous Peoples jurisprudence underlined that the protection of the interests of FG is not restricted to the environmental sphere, because it also encompasses other human rights such as to food and culture and the rights of Indigenous Peoples (footnote 567). Elsewhere, the Court makes explicitly clear that FG enjoy the right to life in terms of Article 4 ACHR and Article 1 American Declaration of Human Rights (para 394). It is thus clear that the Court’s comments on FG and IGE are intended to go beyond the environmental context and provide a road-map for others human rights areas with an intergenerational component.

This concern with providing a wide-ranging FG framework capable of being applied beyond the climate emergency context is also evident from the Court’s delineation of the basis of FG rights within the Inter-American human rights schema. The Advisory Opinion made clear that the obligations derived from the right to a healthy climate specifically are intended to protect the global climate system “for the benefit of humanity as a whole, and both present and future generations are part of this” (para 311). However, it also went on to outline an inter-temporal understanding of human rights universality that has relevance and resonance beyond environment-related human rights issues:

“even though international human rights law recognizes that everyone is a possessor of non-derogable rights, the ethical and legislative grounds for this transcend those who inhabit the planet today, extending also to humanity as a legal and moral community that endures over time. The protection of this community has been established in international instruments such as those relating to the common heritage of humanity.” (Para 311).

In doing so, the Court appeared to draw on the approach adopted in the La Oroya CO.  AO-32 thus makes a direct, normative contribution to scholarly work focused on the inter-temporal dimension of human rights universality. (See Liebenberg and Nolan 2025).

But who are FG? The Court’s statements in the paragraph just quoted strongly suggest that, for the purposes of rights protection under the Inter-American system “future generations” are to be distinguished from “present generations” who can be understood as “the people who inhabit the planet in the present”. In short, FG are those persons not yet living but who will do in future. This understanding is reinforced by the Court’s citation of the Maastricht Principles in several places in the Advisory Opinion, which, as mentioned above, adopts such a definition. In an interesting shift, AO-32 also avoids addressing children and FG rights together (contrast with AO-23 and the main opinion in Lo Oroya discussed here), with the Court only flagging the particular impacts of climate change on certain age groups including the very young when addressing the importance of ensuring intra- and inter-generational equity.

The Advisory Opinion provided an in-depth understanding of the obligations imposed on states by IGE and the need to secure FG’s rights. (This is leaving to one side what could be implied with regard to the duties owed specifically to FG in terms of the Court’s statements on the general human rights obligations imposed under the climate emergency in paras 218-265 – something that merits a blog of its own).

The Court stated, quoting the UNFCC that, in the context of the climate emergency, IGE is reinforced through the principles of intragenerational equity and common but differentiated responsibilities (para 309). Centring in particular on States’ duties to ensure “an equitable distribution of the burdens of climate action and climate impacts, taking into account their contribution to the causes of climate change and their respective capabilities”, the Advisory Opinion specified that such sharing should avoid imposing disproportionate burdens “on members of both future and present generations” (para 310).  

The Court gave clear examples of what such disproportionate burdens might look like with regard to the different generations: the former would occur where  climate action was unjustifiably postponed, leaving the damage and cost to FG; the latter would occur in instances where the costs of the energy transition are allocated without taking into account the vulnerability of certain groups of the population in the here-and-now (Ibid). The Court thus made clear that IGE cannot be achieved through the creation or exacerbation of intragenerational inequity. As such, the Court provides some valuable guidance about the balance to be stuck between the rights of FG and present generations in the case of a potential conflict.

The Court’s concern with intra- and inter-generational equity was made explicit in the final part of the section focused on “Equity and Protection of Present and Future Humanity”. Here, it declared that “taking into account that human generations exist within an unbroken continuum that is continually renewed and redefined as untold new members join the living human community”, their protection requires the adoption of measures that ensure equity both in the effective enjoyment of rights by present generations, and in their transmission to FG (para 312). The Court noted that this is a particular issue in the context of the climate emergency, given that the impacts of climate change are “progressive, increase over time, and have more severe effects on certain age groups” – notably those who, today, are very young and who must live their whole lives in a climate environment that is increasingly adverse, and older persons who, owing to their age, are more vulnerable in a context of increasing climate risks (Ibid). Hence, “the guarantee of intra- and intergenerational equity is essential for the interpretation and implementation of the obligations arising from the right to a healthy climate because this right, in its collective dimension, seeks the comprehensive protection of humanity as a whole” (para 313).

While AO-32 does not provide a definitive, one size fits all answer to the question of the balance to be stuck between the rights of FG and present generations in the case of a conflict, it does make clear that a balance must be struck; it is not simply a case of the rights of those living in the here-and-now trumping those who live in the future – or vice versa. That said, much remains to be teased out in future case-law involving such conflicts in practice

Paths not taken?

Although there is much to be welcomed in AO-32 by those in favour of more extensive recognition and delineation of FG rights in IHRL, there are a number of gaps and omissions that reflect (in this author’s view) missed opportunities to engage with some crucial but thorny challenges that are thrown up by FG and their rights.

First, when discussing democracy and procedural rights, the Court underlines the connection between strengthening democracy and securing the RTHE and sustainable development for present and FG as addressed in the Preamble of the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters (the Escazú Agreement) which entered into force in April 2021 (para 464). However, while engaging in-depth with environmental democracy, the Court did not engage with the “democratic citizenship gap” faced by as yet not living FG in any significant depth. While, positively, the Court did make clear that states were required to “promote mechanisms to integrate the interests of nature and future generations into their climate actions” (para 469), it provides no detail on how this might or should be done. The section on the right to public participation is silent on FG.

Given the way in which AO-32 engages in depth with other issues, this seems a regrettably under-developed element of the decision − and perhaps a surprising one given the La Oroya CO approach and the engagement with democratic exclusion of FG by other international and national courts who have addressed inter-generational human rights issues in recent years (see, e.g., here). Nor does the pending Advisory Opinion on Democracy and its protection before the Inter-American Human Rights System seem likely to address this omission given the scope of the Request presented to the Court by Guatemala (discussed here).

Second, the Court states that the judicial authorities must apply the pro actione principle with respect to the admissibility of actions, appeals filed and standing requirements that could truncate the guarantee of the right of access to justice in claims of a collective and individual nature (para 546) – which could at least implicitly ensure that actions seeking to assert FG rights should be met favourably. But there is no express mention of FG in the Advisory Opinion section on access to justice (paras 540-559). Again, far less is said in this regard than was in the La Oroya CO, which specifically stated it is “important that States guarantee the legitimacy of future generations to demand the protection of the environment, either through the present generations (children and young people), human rights defenders or through the role of the ombudsperson or other similar figures” (para 155). Hence, it seems likely that specific FG rights-oriented litigation brought before the Court in the context of its adversarial jurisdiction will be necessary to establish if, to what extent, and by who, FG’s rights to a healthy climate (and healthy environment) can be enforced in practice.

To be clear: it is not that the contents of AO-32 could not be used to justify the creation of FG-specific processes related to democratic decision-making (as opposed to “climate action” generally) and access to justice but that the AO does not expressly require such creation.

So why is this? An inference may be drawn from the voting on different elements of AO-32. Only five out of the seven judges voted in favour of the point that “[t]he right to a healthy climate, understood as a component of the right to a healthy environment, protects in its collective dimension present and future humanity, as well as Nature, in the terms of paragraphs 298 to 316.”  Three of those five were the authors of the CO in La Oroya. Thus, while the  La Oroya CO was influential in terms of many of the advances in the Advisory Opinion in relation to the Court’s treatment of IGE and FG, some of its more progressive elements apparently went beyond what a majority of judges were comfortable with.

One final gap: AO-32 does not explicitly address discrimination and equality rights as they apply to FG – even to the extent of outlining the differential impacts likely to be experienced by FG as a group particularly affected by climate change. This contrasts sharply with the extensive attention to on differential protection owed to children and adolescents in terms of obligations arising from the principle of equality and non-discrimination (see para 597-604). Older persons are also given a nod in the section on differentiated impacts of climate disasters. That said, both birth cohort discrimination and age discrimination as it pertains to FG remain contested (and sometimes) confused areas of discrimination in IHRL terms. The Inter-American Court is certainly not the only IHRL body choose not to address this topic in their interventions on climate change (see, e.g., the UN Committee on the Rights of the Child’s approach in its General Comment No.26).

The door for future engagement with this issue has been very much left open, however. The AO underlines that “recognition of new forms of vulnerability is essential to guaranteeing the effectiveness of human rights in the context of the climate emergency and to ensuring a just and inclusive transition” (para 629). States have an obligation to identify, in light of the national context, the particular risks and needs of those groups that, although not part of the traditionally protected categories, are nonetheless in a situation that is subject to significant exposure or disadvantage: this duty entails the adoption of specific, reasonable and differentiated measures aimed at preventing and reducing climate risks, mitigating their effects and facilitating sustainable adaptation processes (ibid). This element of the AO could undoubtedly be used as a lever for those pushing for a greater focus on the FG-related impacts in state planning

Conclusion

Overall, AO-32 is undoubtedly a very important advance in terms of placing IGE, FG and their rights at the heart of Inter-American human rights law. And Innovative developments around FG and their position in IHRL are unlikely to end here. On 23 July 2025, the International Court of Justice will publish its Advisory Opinion on the Obligations of States in Respect of Climate change. FG were a central focus of the Request transmitted to that Court on 29 March 2023. It will be fascinating to compare the approaches adopted by these two leading courts to FG, their rights and IGE.