The Children are the Future – Or Not? Exploring The Complexities of the Relationship between the Rights of Children and Future Generations

This piece addresses an issue of growing importance in international human rights law (IHRL): namely, the relationship between children’s rights and future generations’ rights. This matter is particularly pressing in the context of the growing body of standard-setting, scholarship and practice in the areas of climate justice and environmental protection. However, it has also been a longer-standing (albeit often lower profile) concern in the context of sustainable development and other work in IHRL addressing issues of inter-generational equity and justice. In all of these contexts there have been increasing linkages made between the rights of children and those of future generations – linkages that have been reinforced by the growing body of climate litigation and adjudication at the national level (and the discussion generated by such) which has been focused on the impacts of environmental harm on the rights of born children and as future generations (whether defined as those already born or those not yet born).

While children’s rights is a well-established and developed area of IHRL, FG rights is at a much more nascent stage. The thus far under-explored relationship between children’s rights and future generations raises a number of key questions about the application, scope and content of IHRL. This post explores some of these.

Children’s Rights and/or Future Generations (FG) Rights – Why Does it Matter?

But why should we care about the respective the child rights/FG rights relationship?

It is clear that there are differing opinions on the extent to which delineating the respective rights and interests of child rights and FG rights under IHRL. On the one hand, there is support for the view that ‘children per definition embody and represent both current and future generations’ (Arts), which would suggest that it is appropriate and legitimate to focus on inter-generational FG rights issues through the lens of children and their rights. On the other, as will be addressed below, the use of children as a proxy or (as Bottini Filho has referred to it) a ‘shortcut’ for future generations may risk an under-theorisation of rights for future generations in key areas of IHRL.  A further concern is that an inadequately nuanced equation of these two groups of rights also has potentially negative implications for children and children’s rights – a point that will be considered later in this piece.

Any consideration of the inter-relationship and divergences between children’s rights and FG rights for the purposes of IHRL requires that two key definitional questions be addressed: First, who are the right-holders for children’s rights and FG rights, respectively, in terms of IHRL?  And second, relatedly, to what extent to do these categories or groups or right-holders overlap and diverge in terms of the scope of application of those rights? (It should be noted that some of the questions raised in this piece have also been discussed to some degree in scholarship and debate around intergenerational justice and equity, particularly that beyond law. However, the primary focus of this piece is IHRL. It should be noted, however, that this broader body of work does not provide a definite, uniform definition of FG either.)

Finding answers to these questions has been rendered urgent by two recent initiatives in IHRL: the forthcoming general comment of the UN Committee on the Rights of the Child (ComRC) on the environment and children’s rights with a special focus on climate change and that of the UN Committee on Economic, Social and Cultural Rights (CESCR) on sustainable development and the International Covenant on Economic, Social and Cultural Rights.

The concept note for the first initiative states that the main objective of the general comment is to ‘[s]hed light on the societal, legal, and other implications of concepts such as … “future generations” “intergenerational equity” etc with a view to improve the legislative, administrative and other measures that States as well as other stakeholders undertake to uphold the rights of the child in the context of the environment and climate change’. In doing so, however, the committee does not define future generations and it has become clear from various thematic consultations around that general comment that the Committee is not working with a clearly defined understanding of FG.   

The Issues Paper developed by the drafting team for the CESCR General Paper implicitly links children’s rights and future generations’ rights in the context of a series of questions focused on the principle of intergenerational equity: ‘Is there room under the Covenant to consider the position of future generations? What is the role of equality and non-discrimination in this regard? How can children’s rights assist in informing this long-term view of environmental impacts on human rights?’ Furthermore, having noted that ‘access to effective remedies is often undermined by restrictive rules of legal standing, which do not recognise public interest actions, class actions or representative litigation on behalf of future generations’, the Issue Paper asks a question about what kinds of other legal and institutional mechanisms would advance effective access to justice and accountability in the area of sustainable development and ESC rights. In doing so, it flags the possibility of recognising legal standing for children ‘whose future enjoyment of Covenant rights are placed at risk due to climate change and environmental degradation’. This reflects a view (increasingly borne out in the climate change litigation practice context) that children’s rights claims can serve as an avenue for future generations’ rights claims.

It is thus clear that there is a growing acknowledgement of the potential linkage between the interests – and rights claims – of children and future generations on the part of bodies working at the forefront of IHRL. However, this linkage is not an uncomplicated and uncontested one: as the Committee on the Rights of the Child stated in its recent submission to the Working Group on the draft convention on the right to development (which this author advised on): ‘given the potential complexities in the definition of, and relationship between, children and future generations, an increased focus on “future generations” in the draft convention in the absence of specific recognition of the rights of the child will not be sufficient to remedy the current near invisibility of children within the draft convention’. This was in response to a draft of the Convention that did not mention the word ‘child’ once (albeit it did refer to on ‘girls’ (draft Article 16) and age discrimination (draft Article 8)), but which stressed that States Parties ‘individually and jointly, undertake to ensure that:  … Their decisions and actions do not compromise the ability of future generations to realize their right to development’ (draft Article 22(b)) (UN Doc. A/HRC/WG.2/21/Add.1).

Definitions: What are Children’s rights and FG rights?

So what are children’s rights and FG rights?

Children’s rights under IHRL are given their clearest and most authoritative form in the UN Convention on the Rights of the Child (UNCRC). The issue of who is a ‘child’ in terms of the UNCRC is primarily addressed in Article 1 of the Convention, which states that ‘for the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. (Article 38 on the rights of children in armed conflict constitutes one notable exception to the general favouring of 18 as the end of childhood within the Convention. However, given its narrow application as well as the implications of the contents of the Optional Protocol on the Involvement of Children in Armed Conflict, this provision will not be discussed in detail here.)

Article 1 UNCRC thus provides two tests for childhood. First, it states that a child is any person under the age of 18. Secondly, it provides that under national law applying to the child, majority can be attained earlier. Thus, while the UNCRC favours the age of 18 as being the ‘cut-off’ for the purposes of childhood, it explicitly recognises that there can be, and are, significant variations in the practice of signatory states.  Overall, however, children’s rights can be understood to adhere to people under 18 for the purposes of IHRL.

Given sharp state disagreement on the issue of when life – and hence childhood for the purposes of Convention rights enjoyment – begins, it is unsurprising that the Convention makes no mention of the start of (or ‘minimum age’ of) childhood.  The sole brief reference to the position of the unborn child in the UNCRC occurs in the Preamble, which quotes a section of the 1959 Declaration of the Rights of the Child recognising that the child ‘by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’.  In practice, the Committee has focused its work on the rights of the born child. Article 24(2)(d), which requires states ‘to ensure appropriate pre-natal and post-natal health care for mothers’ implicitly raises the issue of the unborn child. However, the Committee’s work on this area has been firmly focused on pre-natal and post-natal care for women, rather than any potential care-related rights obligations owed to unborn children.

Thus, we are able to generalise that children’s rights under IHRL apply to born children – not unborn ones. While children of the future will qualify for those rights upon birth, they do not do so prior to that (although one can obviously speak of children’s rights in terms of describing the rights that future children will have upon being born). However, children not yet born are not child rights-bearers in the here and now in terms of IHRL.

What of future generations?  As yet, there is no specific definition of ‘future generations’ for the purposes of IHRL. (Indeed, even the normative basis of recognising the human rights of future generations in IHRL is unclear and contested at present). Some posited understandings of ‘future generations’ explicitly encompass already existing/current/born generations, and hence children in the here and now. Skogly speaks about the concept of FG as ‘referring to the rights of current youth and children when they grow into adulthood, as well as other people who will live in the future’. On such an understanding, born children qualify for rights on the basis or status of their membership of two groups: namely, children in the here and now (and hence current child rights-bearers) and as adults in the future. Other commentators working in the IHRL space regard the groups as wholly separate, conceptualising future generations as ‘those yet to be born’ (Daly 2022) – i.e., generations that will be born in the future. Here, born children and future generations are discrete groups with child rights-bearers (born children) not falling within the category of ‘future generations’ for the purpose of rights protection upon reaching adulthood. Others stress the linkage between existing and future rights claims when considering the potential interactions of children and future generations rights. Knox for instance, suggests defining a future generation ‘as those people who will be alive at a specific time in the future, such as the year 2100’ (Knox 2020).  In terms of this approach, ‘many people who will be living then have already arrived and inherited their full allotment of human rights’ and the focus should be on ensuring their rights throughout their lives – both as children and future adults.

The aim of this piece is not to come down in favour of a particular definition of FG or evaluate in depth the arguments for and against those definitions outlined. Rather, the issue being flagged here to note here is that where there is no clear definition of ‘future generations’ for IHRL, then there can be no clear answer to the question of who qualifies for FG rights claims in the IHRL context. And the lack of a definition of FG also makes it impossible to assess the extent to which children and FG and their rights do or should diverge or converge in terms of scope and content – or application in practice. Experience in group rights-focused IHRL scholarship and practice, including children’s rights, makes clear that the attribution of rights to (or association of rights with) a particular group will have implications for how those rights are defined in practice. This is due to the role played by understandings (or misunderstandings) of right-holders and their lived experience in the delineation and application of rights protections. Where one cannot define the group meaningfully, this has inevitable knock-on effects in terms of the ability of applying the rights that might pertain to that group.

Where Do We Go from Here?

So where do we go from here?

There are a number of important initiatives underway that will contribute to a definition of FG rights for the purposes of IHRL. In addition to the UN treaty body work referred to above, one particularly significant effort is the ongoing project to develop expert Maastricht Principles on the Human Rights of Future Generations, the outcome of which should be public later this year. These Principles will not, of course, be hard law standards in the sense of treaty law. Nor will they constitute an authoritative legal interpretation in the way that a UN treaty body general comment would. However, given the concerning gap in this area, as well as the persuasive part that previous Maastricht Principles (for instance on extraterritorial obligations) and Guidelines (e.g., on violations of economic, social and cultural rights) have played in terms of shaping international legal discourse and the work of the international human rights bodies responsible for interpreting and applying IHRL, these new principles are likely to play a highly influential role in this space.

A key question that IHRL will have to address is the extent to which FG rights can be asserted as individual rights by FG group members or whether they can solely be exercised as, or on behalf of, a collectivity. While children’s rights are group-specific (in the sense of adhering to children because they are the members of a specific, legally recognised/defined group), they can be asserted by children on an individual basis or collectively. Will the same be true of future generations rights as outlined in the Principles or IHRL more broadly? Given the growing focus on access to justice and remedies in IHRL, including in the areas where the rights of FG are a hot topic (e.g., environmental protection), it would seem crucial that it would be possible for such rights to be asserted by individuals (or a group of individuals). If not, then the attention of those asserting rights at the international level in the context of individual-focused complaints mechanisms and processes is likely to remain fixed upon children’s rights as a vehicle for addressing issues of intergenerational justice. This in turn poses a risk to children’s rights as a set of legal protections for already born children, as such an approach may lead to those rights being co-opted or instrumentalised (admittedly in good faith) by those employing and those applying IHRL to advance the rights of others beyond born children. It may also result in bodies responsible for applying IHRL developing ever-broader understandings of children’s rights in order to encompass FG-related issues – potentially at the cost of a coherent framework focused on rights harms and needs faced by children in the here and now.  Children’s rights under IHRL must not be reduced to ‘future generations rights by other means’.  

Nor would children’s rights necessarily prove up to the task of dealing adequately with FG rights. While decision-making in children’s rights may certainly involve balancing the current and future rights-related interests of children (for instance, in balancing rights related to child autonomy and best interests), scholarship and practice in this area have not centred in any detail on balancing the rights of children in the here and now with those of other children in the future – or even with the rights of those same children as future adults. Admittedly time plays a key role in terms of children’s rights given that such rights are by definition time-bound and said time-boundedness is often cited as a justification for urgent action on child rights issues. However, the issue of intertemporal rights claims remains a considerably under-explored concept in children’s rights law and practice when compared to other areas of IHRL (see, e.g., McNeilly and Warwick). Nor has children’s rights work engaged meaningfully with the issue of collective or group rights in the sense that is likely to be required in the context of future generations’ rights claims. Furthermore, as flagged earlier, given the limited scope and specificity of children’s rights, a dependence on that framework to explore key issues related to a group that may in some instances have significantly different rights and interests to children may lead to an undesirable distortion of the development of FG rights.

Conclusion

Children’s rights and future generations rights are hot topics. This post has focused on unanswered questions about the relationship between children, future generations and their rights, under IHRL. If both sets of rights are to achieve their full potential in terms of both their delineation and implementation through IHRL, the complexities of their linkages, overlaps and disconnects must be faced head on.