08 November 2009

28 Days - Erga Omnes is Not a Lady (Outlawing Progenycide)

Erga omnes is a legal term from the Latin meaning "in relation to everyone." It describes obligations or rights towards all. From Wikipedia:

"In international law, erga omnes has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach)."

In other words, these are principles and rules accepted and (hopefully) enforced by all states, on behalf of all human beings. Examples of erga omnes norms include slavery, torture, genocide, piracy, and racial discrimination.

I would like to propose a new erga omnes obligation: that all states will do all they can to avoid progenycide: the genocide of future generations by not taking emergency action today on global climate change that is threatening the future.

I've heard it said that my idea could be mistaken for "right to life" or similar concepts, but I'm not talking about individual human beings. I'm talking about all future human beings, taken as a whole.

I've also been told that we can't give rights to future generations ... but here I would beg to differ. I see Chapter 11 in the North American Free Trade Agreement (NAFTA) as a precedent, since it gives future rights to corporations. Future shareholders are future generations. Not only that, but corporations are treated like people. So if future shareholders have economic rights, and corporations have future economic rights, then certainly future generations of all humans have environmental rights. (Okay, I'm no lawyer, but it makes sense to me!)

This all came up as I read about Canada's minister of the environment speaking only for Canada's economy. Because he is standing in the way of a treaty in Copenhagen, I wondered, could he be charged with crimes against humanity? Could other states charge him with breaking erga omnes norms, since genocide against future generations surely must be considered by the international community as an obligation owed by Canada to the citizens of all other states?

This non-minister of the environment has shamed me as a Canadian by his heartlessness towards the children of all species. I hope he doesn't have children of his own, because if he does, they must certainly be wondering why he cares so little for them and their future.

Duty to Future Generations 
The human right to a healthful environment should be viewed in the context of a duty to future generations. The duty to preserve and protect the environment is a duty that is owed not merely to all other human beings, non-human beings, and inanimate objects in present time but extends also to future generations. The duty is expressed in the theory of "intergenerational equity," which articulates that "all members of each generation of human beings, as a species, inherit a natural and cultural patrimony from past generations, both as beneficiaries and as custodians under the duty to pass on this heritage to future generations," and that this right to benefit from and develop this natural and cultural heritage is inseparably coupled with the obligation to use this heritage in such a manner that it can be passed on to future generations in no worse condition than it was received from past generations. — Edith Brown Weiss, United Nations University Press, 1992 

Perhaps premiers and prime ministers should be more circumspect in promoting policies that ignore the precautionary principle and devastate the environment. Future generations might prosecute them posthumously for crimes against the planet. — Hugh Robertson


  1. Tying Erga omnes and progenycide (great new term...should be in the Urban Dictionary) is brilliant Julie!

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I would appreciate hearing your thoughts or questions on this post or anything else you've read here. What is your take on courage and compassion being an important part of the solution to the climate change emergency?