Intergenerational Equity and the Antarctic Treaty System: Continued Efforts to Prevent “Mastery”

Kees Bastmeijer*

1. Introduction

Intergeneration equity is a principle on the relationships between past, present and future generations: “To define intergenerational equity, it is useful to view the human community as a partnership among all generations”.1 Partic- ularly during the last two decades the content and legal status of this concept have been the subjects of comprehensive discussions among philosophers, economists and lawyers. Questions include whether future generations can have ‘rights’ and if so, whether these rights are individual rights or group rights. Other questions relate to the content of the rights and obligations: Is it about ensuring future generations a similar level of wealth and welfare, is it about leaving options for future generations to enable them to make their own choices, or is it about passing on cultural and natural assets?2 Fur- thermore, questions also arise regarding the interrelationship between intra- and intergenerational equity. For instance, how to balance options for future

* Kees Bastmeijer is professor of nature conservation and water law at the Tilburg Law School, Tilburg University, The Netherlands (Email: [email protected]). His research relates to international, European, and national environmental law, with an emphasis on nature protection law. Kees Bastmeijer has participated in the Antarctic Treaty Consultative Meetings since 1992. The author wishes to thank Dr. Alan D. Hemmings for his valuable comments and suggestions on an earlier draft of this article. 1 Edith Brown Weiss, “Our Rights and Obligations to Future Generations for the Environ- ment”, 84 The American Journal of International Law, No. 1 (January, 1990): 198–207, at 199. See also Bryan Norton, “The Ignorance Argument: What Must We Know to be Fair to the Future?”, in Daniel W. Bromley, Jouni Paavola (eds), Economics, Ethics and Environ- mental Policy, Contested Choices, Blackwell Publishing, Oxford/Malden (2002): 35–53, at 44. Norton refers to Edmund Burke. 2 See: Christopher D. Stone, Should Trees Have Standing?, Oxford University Press, New York, 2010 (third ed.): 117–124. 636 Kees Bastmeijer generations and options for poor people among the present generation?3 Recently, Malgosia Fitzmaurice4 provided a valuable overview of these discussions (summarizing the views of other authors, e.g., E. Brown Weiss, L. B. Solum and C. Redgwell),5 and further contributes to the debate by discussing initiatives in domestic law and in jurisprudence to work out the concept of intergenerational equity in more detail. It is clear that the questions are complex and that no consensus exists among scholars in regards to the correct answers. In diplomatic debates and negotiations between governments of states, often these academic questions do not even receive serious attention. Various treaties and international policy documents recognize the responsibility of the present generation for future generations without further detailing the legal status and more concrete con- sequences of this responsibility.6 This also applies to the Antarctic. In several important instrument of the Antarctic Treaty system (ATS)7 it is stated that the Antarctic is managed “in the interest of all mankind”.8 Most likely this

3 See: Kerry Turner, Speculations on Weak and Strong Sustainability, Cserge Working Paper GEC 92–26. See also: Edith Brown Weiss, “Intergenerational equity: a legal framework for global environmental change”, in Edith Brown Weiss (ed.), Environmental change and international law: New challenges and dimensions, United Nations University Press, Tokyo, 1992, at 8: “[. . .] there are instances where the actions needed to protect the health of the planet for future generations may conflict with the need to alleviate poverty as quickly as possible. In these instances, we need to develop appropriate mechanisms and allocate suf- ficient resources to maximize the ability to advance both goals”. 4 Malgosia Fitzmaurice, Contemporary Issues in International Environmental Law, Edward Elgar, Cheltenham UK/Northampton/USA (2009), Chapter 3. 5 Ibid., note 1 at 110. 6 Ibid. 7 For a definition of the Antarctic Treaty System (ATS), see: Article 1, under e) of the Proto- col on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991 (entered into force 14 January 1998), 30 ILM 1455 (1991), also available at http://www.ats.aq/e/ats_ protocol.htm (accessed 4 February 2011)(Protocol or Madrid Protocol): “ ‘Antarctic Treaty system’ means the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments”; For a comprehensive discussion of the ATS, see: amongst others, L. M. Elliott, International Environmental Politics, Protecting the Antarctic, St. Martin’s Press, New York (1994); Donald R. Rothwell, The Polar Regions and the Development of International Law, Cambridge University Press, Cambridge (1996); and O. S. Stokke and D. Vidas (eds), Governing the Antarctic. The Effectiveness and Legitimacy of the Antarctic Treaty System, Cambridge University Press, Cambridge (1996). For a discussion of the negotiations on the Antarctic Treaty and political positions of the states involved, see: John Hanessian, “The Antarctic Treaty 1959”, 9 International & Comparative Law Quarterly (1960): 436–480. 8 See: for instance, the preamble of the Antarctic Treaty: “Recognising that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peace- ful purposes and shall not become the scene or object of international discord”. See also: