Due regard for future generations? : the obligation to prevent significant environmental harm and sovereignty in the ICJ advisory opinion on climate change

Abstract

Future generations stand to experience significant harm as a result of human-induced climate change. This raises serious questions of intergenerational equity, which states should consider in order to give effect to the law on sustainable development. Is it possible to argue further that a requirement of due regard for future generations is an aspect of states’ customary international law obligation to prevent significant harm to the environment of other states and areas beyond national jurisdiction? The argument for due regard is strengthened when we consider that the specific obligation to prevent significant environmental harm is grounded in the more general Corfu Channel no-harm rule and the maxim sic utere tuo ut alienum non laedas, which address how sovereigns must act vis-à-vis the legal rights and interests of others. As to the substantive outcomes that are to be expected from a practice of due regard for future generations, it may be that international law calls for sovereignty to be exercised reasonably and in ways that avoid manifestly excessive adverse effects on the interests of others. Contemporary moral philosophy brings weight to the proposal for recognizing states’ obligations of due regard for future generations in states’ climate change related decision-making.