The Future of the Planetary Trust in a Kaleidoscopic World

1 Idea of Planetary Trust

When the planetary trust was conceived, States had begun to recognize that we have Only One Earth, the title of the 1972 book by Barbara Ward and René Dubos. 2 Pollution of air, water, land and oceans was evident, as was destruction of biodiversity and contamination of soils, but States were only beginning to address these issues, in part through the newly established United Nations Environment Programme. Recognition of climate change was still in its infancy, as was the understanding of the role of economics and politics in environmental issues. The Villach, Austria, meeting of climate experts took place in 1985 and the Intergovernmental Panel on Climate Change (IPCC) was formed only in 1988. It was not yet clearly established that human activities could wreak irreversible damage to the whole Planet.

Today it is evident that we are part of a planetary trust. In the emerging Anthropocene Epoch, humans are the dominant force of nature. We are shaping the planet on a geological scale and doing so rapidly. The carbon, nitrogen and hydrological cycles are accelerating. Biodiversity is rapidly declining, with one million species of animals and plants threatened with extinction, many within a decade. 3 Oceans and fish stocks are threatened, and coral reefs are dying. Our planet is warming at a rate that could lead to the crossing of thresholds that could produce catastrophic changes. In addition, we face a higher threat of nuclear war, cyber wars, and threats from gene drivers that can cause inheritable changes to genes, potential threats from other new technologies such as artificial intelligence, and possible pandemics.

The threats to future generations resulting from human activities make applying the normative framework of a planetary trust even more urgent than in past decades. Because we are an integral part of the Earth, we can cause irreversible damage to its integrity and resilience unless we act on the basis that we hold it in trust for future generations with limits to our use today. We need to ensure the survival of our Planet and provide a robust human environment for all peoples. I would argue that all States and peoples now recognize that we share a common home, and that the question is how to use it for their own benefit and at the same time protect it for the future.

2 Revisiting the Planetary Trust

Conserving our Planet represents a public good, global as well local. Initially, the planetary trust focused primarily on threats to the natural system of our human environment such as pollution and natural resource degradation, and on threats to cultural heritage. The trust inherently covers all actions that can affect the sustainability of the planet. As we look to the next fifty years, though, we need to revisit the scope of the planetary trust to encompass explicitly other diverse and increasing threats to our planet, such as from nuclear and other weapons, biotechnology, cyber technology and artificial intelligence. These will affect our human environment and the health of the planet.

We also need to emphasize that the reach of the trust extends to local actions that have broader effects. The lesson of the last fifty years is that increasingly what happens at the local levels can have large-scale, even global effects. For example, policies on energy sources and energy use affect the viability of the planetary trust. Corporate practices regarding energy resources and use have potentially long-term and intergenerational implications. Taken individually, they may not have long-term effects. Taken cumulatively and across the planet, they do.

The world today is far different from that of fifty or even thirty years ago, when our initial legal instruments to address environmental change were developed. Information technology has enabled what I have termed a kaleidoscopic world, with rapid change, new and challenging problems, many diverse actors, and fluctuating patterns of interaction among the actors. 4 This complicates efforts to conserve our planet. Governments, private sector businesses, formal and informal groups and networks, and billions of people can communicate instantaneously across the world. For example, Tumblr hosted 506 million blogs as of August 2020. 5 Over 409 million people view more than 20 billion pages of WordPress each month; WordPress blogs are written in over 120 languages. 6 Over 5.2 billion people use a mobile phone today; and Twitter recorded an average “monetizable daily active usage” of 186 million during the second quarter of 2020. 7 Information technology enables bottom-up empowerment.

Many actors in addition to States can undertake initiatives for sustainable use and conservation, organize coalitions to build pressures on others to do so, and help monitor actions of others. This promises many benefits. But at the same time, information technology has facilitated those groups and individuals who actively want to oppose environmental goods or to undermine the rule of law, which is detrimental to working for a public good. The anarchic features of the kaleidoscopic world make implementing the public good of protecting the planet quite challenging.

At the moment, the future of the planetary trust seems increasingly dire. Countries are largely focused on short-term problems and national actions. Research suggests that people cooperate only when they are locked together in the same environment over time and must confront the shadow of the future. 8 To avoid situations from getting worse or to obtain benefits that they cannot capture individually, they turn to cooperation. For the planet, this means that when people realize that they have to cooperate to avoid dire consequences to the planet, they may then be willing to take needed steps from which others will also benefit. So long as States view the situation as a zero-sum game, as has been the custom in matters of national security, this will not happen.

3 The Record in Implementing the Planetary Trust

The question is whether the past offers some hope for the future. Here, significant developments in the last two decades in considering future generations and intergenerational equity, the foundation of the planetary trust, offer hope. These have taken place in judicial litigation, institutional arrangements within or among countries, national constitutional provisions, national legislation in a specific sector such as mining, international initiatives, and high-level reports and other documents. 9 Nongovernmental organizations, religious bodies, and the private sector have contributed significantly. They point the way to enlisting everyone to conserve our shared inheritance.

4 Judicial Litigation

The International Court of Justice explicitly referred to the interests of future generations for the first time in its 1996 Advisory Opinion on the Use of Nuclear Weapons when it referred to “generations unborn” as being affected by nuclear weapons. 10 Individual judges have invoked intergenerational equity in concurring and dissenting opinions, beginning in 1993 in Denmark v. Norway in then Judge Weeramantry’s concurring opinion. 11 In both the Pulp Mills Case on the River Uruguay in 2010 and the Whaling in the Antarctic case in 2014, Judge Cançado Trindade discussed intergenerational equity. 12 In the latter case, he observed that “intergenerational equity marks presence nowadays in a wide range of instruments of international environmental law, and indeed of contemporary public international law.” 13 The Inter-American Court of Human Rights has also raised the interests of future generations in its cases regarding the rights of indigenous peoples and transmitting their inheritance to future generations. 14

The most significant judicial advances in implementing planetary trust and intergenerational equity have come in national and subnational courts or in environmental courts in countries. National courts in more than 20 countries have invoked intergenerational equity or considered the interests of future generations in reaching their decision. The cases stretch across Europe, South Asia, Africa, Latin America and North America. 15

A central goal of such litigation is to bring about change –in climate related policies, in sectors such as mining, or in protection of biodiversity, as in the Amazon. Litigants have had some success both on procedural issues, such as standing to sue, 16 and on substantive issues. In the climate cases, for example, the Supreme Court of The Netherlands ordered the government to reduce by 2020 GHG emissions by 25% of the 1990s levels, while the Lahore High Court in Pakistan ordered the creation of a Commission on Climate Change. 17

Cases in India and in Colombia merit special attention because of the actions that the Supreme Courts ordered for mining and for protection of biodiversity. In 2014 in a mining case in the State of Goa, the Supreme Court of India required as a condition to mine that a trust fund be established for the benefit of future generations and ordered the creation of Committee of Experts to find an appropriate ceiling for the annual excavation of iron ore to ensure the resources were available into the future. 18 In August 2017, the Supreme Court issued an historic judgment in a large-scale mining case in Odisha in which it ordered the Government of India to issue a new National Mineral Policy. 19 The new policy (2019) provides that “natural resources, including minerals, are a shared inheritance (italics added) where the State is a trustee on behalf of the people”, includes a new section entitled “Intergenerational Equity,” and establishes an Inter-Ministerial body to institutionalize sustainable mining “keeping in mind the principles of sustainable development and intergenerational equity.” 20

In Colombia, the Supreme Court found that the Colombian government had not effectively tackled the problem of Amazon deforestation, despite international commitments and national legislation. In its judgment, the Court ordered the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development to formulate an Intergenerational Pact for the life of the Colombian Amazon. The Court expressly noted that “natural resources are shared by all inhabitants of Planet Earth, and by their descendants or future generations who do not yet have a physical hold of them, but who are tributaries, recipients, and owners of them,” 21

One of the most recent developments is that lawsuits are now being filed against private companies for contributing to global environmental problems. In the United States, Germany and other countries, the litigation extends to holding companies responsible for contributing to climate change. United States litigation has focused on suing Exxon, a major fossil fuel company. A majority of suits against Exxon and other fossil fuel companies have been brought by states and cities, which have filed five new lawsuits in 2020 against fossil fuel companies for contributing to the impacts of climate change. 22 Shareholders of ExxonMobil have also initiated suits against directors of the corporation, alleging violations of federal securities law, breach of fiduciary duty, waste of corporate assess, and unjust enrichment. 23

Many more cases could be cited as examples of using the courts to implement the planetary trust and to have the private sector act consistently with it. In some of these, the courts rely on national or state/provincial legislation. In others they rely on Constitutional provisions in their country. National legislation in some countries explicitly recognizes future generations. For example, Burkina Faso created a Fund for Future Generations as part of its law on sustainable development (2014). 24 The Philippines Environmental Policy (1977) recognizes the role of the government and present generations as guardians and trustees of the environment for future generations. 25 Wales enacted a Well-Being of Future Generations Act (2015), which established a Commissioner for Future Generations. 26 Australia and New Zealand have legislation addressing intergenerational equity. 27 These are but a handful of examples.

Increasingly national constitutions include provisions relating to future generations and to implementing the planetary trust. As of 2019, the constitutions of at least 55 States have provisions relating to future generations. Many provide for obligations to future generations; some refer to rights of future generations. Several invoke the concept of a trust. Bhutan’s Constitution, for example, states that “[e]very Bhutanese is a trustee of the Kingdom’s natural resources and environment for the benefit of the present and future generations.” 28 The Constitution of Papua New Guinea 1975 (rev. 2016) expressly notes that natural resources and the environment are held “in trust for future generations.” 29

One of the more recent developments is the recognition by several national and subnational courts of the rights of nature, namely rivers and forests, and a willingness to grant standing to representatives of those rights. This can be a means for implementing the planetary trust. The Supreme Court of Colombia recognized the Colombian Amazon as a “subject of rights”, entitled to protection, conservation, maintenance and restoration led by the State and territorial agencies. 30 After over a hundred years of legal battles over the status of the Whanganui River, New Zealand recognized the Whanganui River as having rights, because it has special significance for the Maori people. 31 At least one country (India), however, has rejected recognizing a right for a river, namely for the Ganges and the Yamuna rivers, for a river is inanimate. 32

The movement to recognize rights of nature extends beyond the courts. The Draft Universal Declaration on the Rights of Mother Earth recognizes the rights of the Earth as a being. 33 In Latin America, Ecuador’s Constitution recognizes and provides for the protection of the rights of nature, 34 and Bolivia has passed legislation in 2020 on the Rights of Mother Earth. 35

The emerging willingness to accord rights to nature is significant for implementing a planetary trust because this approach posits that while we are part of the natural system, the system itself is entitled to protection. It expands the notion of what it means to be a trustee for the planet for future generations.

5 Implementing Institutions

The interests of future generations are normally not considered in decision-making today. They need to be. The high-level Oxford Martin Commission for Future Generations, acknowledging the failure of decision-makers to consider future generations, developed recommendations for sustainable long-term decision-making. 36 Governmental institutions that explicitly consider future generations have emerged in some countries. The Network of Institutions for Future Generations, established after an international conference in Budapest, Hungary, in 2014, has compiled a list of these institutions, both past and present. 37 The institutions take different forms: an Ombudsperson for Future Generations tied to national parliaments (Hungary and Israel), a Council for the Rights of Future Generations (briefly in France), a parliamentary Committee for the Future (Finland), the Authority for Sustainable Development and the Rights of Future Generations (Tunisia) and a Commissioner for Future Generations (Wales). Such institutions have faced various political and other obstacles, but the bottom-up pressures that brought them into existence persist. Proposals for international institutions that consider the interests of future generations and implicitly the planetary trust have been part of the international dialogue since the preparatory meetings for the Rio + 20 Conference in 1992. The 2013 Report of the United Nations Secretary-General on Intergenerational Solidarity set forth international institutional options for considering the interests of future generations. 38 There have been other notable proposals, including that of the Mary Robinson Foundation for Climate Justice for a Guardian for Future Generations in the United Nations.

6 Nongovernmental Organizations and Civil Society

Nongovernmental organizations have been at the forefront in pushing for considering the interests of future generations in our planet. The renowned Jacques Yves Cousteau attracted five million signatures for a Bill of Rights for Future Generations, which he presented to the 1992 Rio Conference on Environment and Development. 39 His work led in significant part to UNESCO’s Declaration on the Responsibilities of the Present Generations Toward Future Generations. 40 Many other civil society organizations, particularly the World Futures Council, have been actively striving for more than a couple of decades to advance the agenda of protecting future generations. The more recent Goa Foundation in India, which is focused on mining, is at the same time addressing the revamping of our economic system to consider future generations. Some parts of the private sector, especially in Europe, have taken measures to consider long-term threats, including banks and industries such as those advocating for alternative energy resources. A concern for the future has attracted high-level attention in the last decade, as reflected in The World Economic Forum’s establishment of a Network of Global Futures Council to promote innovative thinking about key issues for the future.

At the ethical level, Pope Francis in his Encyclical Laudato si’ “Our Common Home” pronounced the natural environment to be “a collective good, the patrimony of all humanity and the responsibility of everyone.” 41 The United Nations General Assembly responded to his presentation with sustained applause. The Pope noted that intergenerational solidarity is an important part of sustainable development, which can no longer be ignored.

All of this history is relevant to assessing the future of the planetary trust. Viewed through an optimistic lens, it indicates that in the last few decades, the interests of future generations, and hence the trust, have become an active concern for many governments and for civil society worldwide. Youth are now leading the way.

Through a pessimistic lens, however, progress to date is dramatically insufficient. The pressures for decisions focused on the immediate term have largely triumphed, and most institutions have not rebalanced decision-making to consider both the immediate and long-term issues. We face global threats to our planet without parallel. The Doomsday Clock of the Bulletin of Atomic Scientists on the threats of climate change and nuclear war was advanced in January 2020 to 100 seconds before midnight. 42

7 Conserving the Planetary Trust: Present and Future Generations

As we look to the next fifty years, we must take action urgently. As a first step, we need to recognize collectively that a de facto planetary trust exists and that we must conserve it for future generations. Doing so is a global and local public good. In dealing with it, we must face the reality of a kaleidoscopic world in which no State or even group of States can go it alone. This means that virtually everyone must become involved. States, subnational governmental units, international institutions, private sector companies, communities, civil society, religious bodies, and individuals have to come to the table.

If we are to be effective in protecting and enhancing the planetary trust, we need to share common values in doing so. Norms that reflect these values provide the essential glue for the kaleidoscopic world, enabling it to work toward the goal of conserving our planet for ourselves and future generations. Elsewhere I have identified basic norms that are widely shared among countries and by peoples. 43 They include the norms of cooperation, avoidance of harm, human dignity and equity, intergenerational equity, and accountability. The last norm is the one that makes implementation of the other norms effective. One can identify other norms that are in the process of emerging, such as transparency, or one that is urgently needed, such as a norm of respect for evolving scientific knowledge and an obligation to find out the facts underlying global problems. 44

It is time for a Call to Arms to implement our planetary trust. A new Covenant in which States acknowledge the grave risks to our planet and commit to addressing them together would send a badly needed signal that ensuring the survival of our planet with a robust human environment is a top priority. This could be done as a separate high-profile initiative. The 50th Anniversary of the UN Stockholm Conference on the Human Environment could be a venue, because it will bring together States and a broad range of other actors. Entities other than States could join the Covenant in some manner or draft their own Covenants. As part of the Rio Conference on Environment and Development in 1992, civil society drafted a complementary Earth Charter. While the proposed Covenant might be nonbinding, it could nonetheless serve as a Call to Arms for States and for all peoples to commit to saving the robustness and integrity of our shared common home, our planetary trust. Our youth should welcome such a commitment, for they have the most to lose if we fail to act. I recognize that a Covenant can be an empty document, unless States and the many other actors implement it. But in the kaleidoscopic world, we need a new commitment to work together to consider the long-term and the robustness of our planet.

Protecting the planet is a matter of national security for all countries. The dangers to our planet threaten social and political stability, and hence national security. Often national security is viewed as a zero-sum game, in which a gain by one is at the expense of the other. But national security needs to be redefined in the context of the planetary trust. We are dealing with a common good, and to protect the common good, we have to cooperate. This is in everyone’s interest. Thus, we need to acknowledge that for some activities, countries and other actors are in competition with each other, but for others, namely conserving our planetary trust, they need to cooperate. The challenge is to identify actions for which cooperation is needed and to protect against the weak-link in the group and the free-riders. Viewing protection of the planetary trust as an issue of national security will raise the profile of the problem and the priority to address it.

Implementing the planetary trust must involve actors beyond governments and issues in addition to those concerned with environmental and natural resources. The commercial and financial sectors are essential. Companies need to embed sustainability and long-term assessments into their decision-making. Companies in the energy sector in Europe are considering climate change in their decisions, in good part because of pressures from large investors and the European Union. They are increasingly incorporating climate data and risk assessments into decision-making at all levels of a company and holding employees accountable for doing so. 45 Such systems of decision-making could extend to other regions and other commercial activities. For example, integrating climate change and other long-term assessments into decision-making is especially important for insurance companies and re-insurance companies. Regulatory agencies for companies could also require climate risk disclosure. The United States Security and Exchange Commission issued Commission Guidance Regarding Disclosure Related to Climate Change in 2010, but has not advanced since then on the issue. 46

The financial sector is also important in conserving a planetary trust. The European Central Bank is exploring ways to combat climate change. It considers climate change in four areas: economic analysis, banking supervision, monetary policy and investment portfolios, and financial stability. As part of its monitoring role of banks, it monitors the carbon intensity of the portfolios of banks and has been developing a climate risk stress-test analysis for the euro area banking sector. While the International Monetary Fund does not yet consider climate change in its country assessments, it could if member States were to support doing so. Private Banks are also important partners in ensuring the common good of a healthy and vibrant planetary trust.

The bottom line in projecting ahead is that we need all the actors in our kaleidoscopic world to develop and implement systems for systematically considering climate change and other threats to the planet in their decisions. At first, it may be viewed as innovative to consider regularly such long-term effects, but then it should become accepted and routine. The development, acceptance, and implementation of cost-benefit analysis offers a useful precedent, in that it is now treated as a routine practice.

8 More Initiatives Needed

Turning to the traditional legacy of public international law, we should consider creating a new position of Under-Secretary for Future Generations at the United Nations. 47 The United Nations Charter embodies the fundamental norm of intergenerational equity. The proposed position would send a signal that maintaining our shared planet is critical, that future generations are to be considered in all decisions, and that all States and the worldwide community are committed to this task. Such a high-level position represents a commitment to considering the long-term and to maintaining the common good. The office could serve as a focal point for reliable data and information about threats to the planet as well as a source for success stories in avoiding or undoing harm and in conserving the planet, especially in local communities. Such a position could also be created in UN specialized agencies and related institutions.

There are many other initiatives that might be highlighted, including new international agreements, nonbinding or soft law instruments, or voluntary commitments by States to address particular problems or the planetary trust more generally. States are essential. But in the kaleidoscopic world, we must engage many more actors to cooperate with the shared goal of caring for and maintaining planet Earth in trust for present and future generations. Youth are central to this effort and our hope for the future. Time may be running out.