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Exterior of the German Constitutional Court. Photo: DPA Picture Alliance / Alamy Stock Photo

Recent months have seen a series of ground-breaking judicial decisions on climate change and, more broadly, environmental protection. In one of the most celebrated, the German Federal Constitutional Court held that the German Basic Law (constitution) limits the scope for political decision-making with regard to protection of the environment. According to the Court, environmental protection is elevated to a matter of constitutional significance for two reasons. First, a democratic political process is organised on more short-term lines based on election cycles, which places it at a structural risk of being less responsive to tackling ecological issues that need to be pursued over the long term. Second, because future generationswho it described as those who will be most affectedhave no voice in shaping the current political agenda.

In doing so, the Court placed the issue of democratic unenfranchisementthe absence of entitlement to exercise the right to voteand the lack of political voice of future generations at the heart of its reasoning.

The inability of todays children and as yet unborn future generations to input into decision-making around the environmentand hence the need for judicial intervention to secure their rights and interests in that contexthas been a consistent theme in the growing body of global child- and youth-focused climate change advocacy and litigation. This is evidenced by the claims submitted to courts by child and youth litigants and their representatives, as well as by campaigns and advocacy beyond the courtroom.

From Europe to Asia to Africa to Oceania, children and young people have stressed both their own exclusion and that of as yet unborn future generations from political decision-making that has crucial implications for the enjoyment of rights both now and in the future. This reflects a growing recognition that, in the words of the founding claim that led to a ground-breaking Colombian Supreme Court of Justice decision ordering the protection of the Amazon rainforest from deforestation: intergenerational equity does not only occur between the present generation and a future generation of people who do not yet exist, but also occurs between those who make decisions today and the generation of we younger people who will face the effects of the decisions that are made in the present.

The willingness of the German Constitutional Court to engage with democratic exclusion as a basis for judicially enforced constitutional constraint on the political process is not shared by all courts hearing climate changes cases. A Norwegian Supreme Court decision in December 2020 rejected efforts to prevent the government from issuing exploratory Arctic drilling permits. In doing so, the court stressed that since decisions in matters of fundamental environmental issues often involve political considerations and broader priorities, that was an argument in favour of such decisions being made by elected bodies, and not by the courts.

There is a strong argument that children and future generations inability to exercise either direct or indirect influence on the elected branches of government should serve as the basis of an enhanced role for the courts in protecting their rights in climate change litigation. This is consistent with the arguments made by American scholar John Hart Ely and others in favour of a representation-reinforcing role for judicial review. Where the primacy accorded to majoritarian democratic decision-making (and hence a more deferential or limited role for judicial decision-making) is based on an understanding that those affected by such decisions will be able to participate in or otherwise influence them, then that primacy will necessarily be affected where such participation or influence is lacking.

It has historically been assumed that the rights of children will be protected within democracy through political representation by other enfranchised groupswhether on the basis of shared interests, sympathy or empathy. While this assumption is questionable at the best of times (and is even more questionable when extended to as yet unborn future generations), it is particularly dubious where those who are presumed to ensure this virtual representation of children place a very different priority on climate change and environmental protection than children themselves do. In the UK, for instance, YouGov survey results revealed that while the environment was the second most important issue for voters in the 2019 election between the ages of 18-24, it came fifth and sixth for voters aged 50-64 and 65+, respectively. Given that in the UK, older voters are more likely to turn out to vote than younger voters, and given the growing relative weight of older people in the voting-age population, the scope for effective representation of childrens views by older voters seems limited.

The courts thus have a crucial role to play in ensuring that children and future generations exclusion from democratic decision-making does not result in the violation of their rightswhether now or in the future. While this is not a role that is limited to the issue of environmental protection, that context is proving a crucial testing ground for establishing the extent to which courts will enforce those groups rights in the face of opposition on the part of elected branches of government. And, ironically, even where such cases do not prove successful, they frequently serve to force the issue of environmental protection onto the agenda of democratic decision-makers in a way that might well not happen otherwise.

Hardly a week goes by without a significant case on environmental protection being either launched or decided, with cases involving the rights of children or future generations currently before courts in places as diverse as South Korea, Peru and South Africa. Different national courts of course operate within different constitutional and legal schema and traditions. This will necessarily affect their approach to the cases that come before them. However, a feature of all of the domestic systems in which these cases are decided is the unenfranchisement and ineffective representation of children and future generations in democratic decision-making.

Children and young peoples environment-related advocacy has demonstrated to the world their capacity for political agency and engagement. It remains to be seen, however, to what extent their ongoing lack of political power will advance judicial willingness to intervene to secure their rights in a time of environmental crisis.

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Democracy is failing to protect the environment for future generations. So the courts are stepping in - Prospect Magazine