Beyond OPOSA: Courts reinforcing intergenerational equity as customary international law

• Published date: 01 May 2023
• Author: Josiah David F. Quising
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12489

ORIGINAL ARTICLE

Beyond OPOSA: Courts reinforcing

intergenerational equity as customary

international law

Josiah David F. Quising

*

Abstract

In recent years, children across the globe, such as Greta Thunberg and Kelsey Juliana, are seen at

the front line of efforts to hold governments accountable for environmental damage. In the

Philippines, the case of Oposa v. Factoran gave legal standing to minors and unborn generations

invoking their constitutional right to a balanced and healthful ecology. The Philippine Supreme Court

based its decision on intergenerational equity—a principle stating that every generation has an obli-

gation to protect the environment for the next.

Representation of future generations in courts is not a new concept, nor is it unique to the

Philippines. By examining national laws, treaties and conventions and court decisions by both

domestic and international courts, this article aims to show how intergenerational equity has been

widely recognised by almost all countries globally as evidence of state practice and opinio juris.

This article argues that the principle of intergenerational equity is ripe for consideration as custom-

ary international law and discusses how domestic and international courts and tribunals have been

instrumental in establishing such and recommends that children and unborn generations be given

legal standing as a necessary consequence.

1|INTRODUCTION

While the principle of intergenerational equity emerged in the 1980s,

1

it has become increasingly relevant in more

recent years. Children across the globe have been filing cases against their government for environmental damage,

urging courts to recognise the rights of future generations to a clean and healthy environment.

2

One prominent case

is Juliana v. United States (Juliana),

3

popularly tagged as #YouthvGov. Filed by a group composed mostly of minors

represented by their guardians and a scientist acting as guardian for ‘future generations’, the case centres on the

*

Institute of Law, Far Eastern University, Makati, Metro Manila, Philippines.

1

A. Kiss, ‘The Rights and Interests of Future Generations and the Precautionary Principle’, in D. Freestone and E. Hey (eds.), The Precautionary Principle and

International Law: The Challenge of Implementation (Kluwer Law International, 1996), 19.

2

See Laura Parker, ‘Kids Suing Governments about Climate: It's a Global Trend’(National Geographic, 26 June 2019) https://www.nationalgeographic.com/

environment/2019/06/kids-suing-governments-about-climate-growing-trend/.

3

Juliana v. United States, No. 6:15-CV-01517- TC, 2016 WL 6661146 (D. Or. 10 November 2016).

Received: 15 September 2022 Revised: 8 February 2024 Accepted: 12 February 2024

DOI: 10.1111/eulj.12489

422 © 2024 John Wiley & Sons Ltd. Eur Law J. 2023;29:422–444.wileyonlinelibrary.com/journal/eulj

claim that the US government is violating constitutional rights by permitting polluting activity in disregard of

scientific warnings.

In denying the Government's motion to dismiss in 2016, the Oregon Federal Court in Juliana found that the

plaintiffs adequately alleged injury in fact and were able to show a causal link between the alleged harm and

the actions of the US government.

4

The Court, citing the Philippine Supreme Court case Minors Oposa v. Factoran,

5

accepted the arguments of the plaintiffs in declaring that they had legal standing

6

and found that ‘the right to a cli-

mate system capable of sustaining human life is fundamental to a free and ordered society’.

7

However, on 17 January

2020, while the United States Ninth Circuit Court of Appeals acknowledged that the plaintiffs have ‘concrete and

particularised injuries’and that some of the plaintiffs ‘have presented evidence that climate change is affecting them

now in concrete ways and will continue to do so unless checked’,

8

it concluded, albeit ‘reluctantly’, that such redress

‘must be presented to the political branches of the government’and not to the courts of justice and that the

plaintiffs lacked standing.

9

On 2 March 2020, the plaintiffs filed a petition for a rehearing en banc, asking the court

to convene a new panel to review its previous opinion.

10

The petition was subsequently supported by different

groups through amicus curiae briefs, including a group of 24 members of the United States Congress.

11

The plaintiffs

filed a motion to amend their complaint before the Oregon Federal Court to address the deficiencies raised by the

Ninth Circuit Court of Appeals. This motion was granted on 1 June 2023, and ruled that they can now proceed to

the trial proper.

12

The Minors Oposa v. Factoran (Oposa) judgment was one of the cases cited by the Oregon Federal Court in

granting legal standing to the plaintiffs in Juliana.

13

In Oposa, the petitioner-minors successfully argued that they had

the right to represent their generation as well as those generations yet unborn. The Philippine Supreme Court held

that the legal personality of the minors in suing on behalf of succeeding generations is based on “intergenerational

responsibility”.

14

It also declared that ‘every generation has a responsibility to the next to preserve that rhythm and

harmony for the full enjoyment of a balanced and healthful ecology’and that the act of the petitioner-minors

asserting their right simultaneously constitutes the performance of their obligation to protect the environment for

future generations.

15

With these two cases in mind, the questions that remain unanswered are the following: how do the courts

across the globe apply the principle, and how do they contribute to the development of customary lawas state prac-

tice and opinio juris? This article attempts to answer these questions by demonstrating that the right of future

generations to the environment, as illustrated by the principle of intergenerational equity, can be considered part of

customary international law and that in the process, courts in both domestic and international jurisdiction, have

significantly aided its development.

In the European context more particularly, the recent entry into force at the national level of the

Representative Actions Directive for the protection of collective interests in the European Union holds prom-

4

Ibid., paras. 43, 51, 52, 60, 62.

5

Minors Juan Antonio, Anna Rosario, and Jose Alfonso Oposa et al., v. Fulgencio S.Factoran, Jr. et al., 33 ILM 168 (1994) (Phil.).

6

Ibid., paras. 51, 53.

7

Ibid., paras. 82.

8

Juliana v. United States, D.C. No. 6:15-cv-01517-AA (9th Cir., D.C. Cir. 2020).

9

Ibid., 11.

10

Petition for Rehearing En Banc of Plaintiff-Appellees, Juliana v. United States, D.C. No. 6:15-cv-01517-AA (9th Cir., D.C. Cir. 2020).

11

Brief for Sen. Jeff Merkley, et al. as Amici Curiae Supporting Plaintiff-Appellees, Juliana v. United States, D.C. No. 6:15-cv-01517-AA (9th Cir., D.C. Cir.

2020).

12

Juliana v. United States, No. 6:15-CV-01517- TC (D. Or. 1 June 2023).

13

Juliana, see above, n. 3, para. 82.

14

Oposa, see above, n. 5.

15

Ibid.

QUISING 423