Seized by opponents of the nuclear waste burial project in Bure (Meuse), the Constitutional Council must decide whether the medium and long-term consequences of today’s actions can be integrated into current law.
Can we guarantee the security of a nuclear site for 100, 1,000 or even 10,000 years? This is one of the questions that arise around the nuclear waste landfill site in Bure (Meuse). Seized by associations of environmental activists and local residents opposed to its commissioning, the Constitutional Council must rule on this question and render their decision on Friday October 27. Its members were in fact seized of a priority question of constitutionality whose objective is to challenge the declaration of public utility of the geological storage center (Cigéo) project. During the hearing, around ten days ago, the lawyers clashed over the question of being able to act or not on behalf of future generations, reports France 3 Grand Est. But what does this concept mean, which proposes to combine the right with the future?
Where does this notion come from?
“We, the people of the United Nations, [sommes] resolved to save future generations from the scourge of war”can we read in the preamble to the Charter of the United Nations, written in 1945. But what about preserving these future generations from the scourge of environmental destruction? From the erosion of biodiversity? Greenhouse gas emissions from our consumption of fossil fuels? Since the 1970s, more and more ecological activists, as well as jurists, have called together the humans of tomorrow to demand that the question of the medium and long-term consequences of today’s actions be integrated into the law.
As early as 1968, jurists opposed to the Vietnam War campaigned for recognition of the crime of “ecocide”, which they use to describe the dispersal of Agent Orange, a highly toxic pesticide, on the territory. They then spoke of “war against a land and the unborn”. On the international scene, we find a mention of it in 1992 in the UN definition of “sustainable development” at the Rio Earth Summit. To know : “A mode of development that meets the needs of the present without compromising the ability of future generations to meet their own needs.. More recently, in 2015, the Paris Agreement called on its signatories to “respect, promote and take into consideration their respective obligations regarding (…) equity between generations”.
What is it used for exactly?
For magistrate Sonya Djemni-Wagner, “the figure of future generations, which is added to the embodied action of young people, has the advantage of being very evocative”. “Strategically, it is a question of giving legal force to a notion which is not not technical, but understood by everyone, making one think of abstract children’s figures, or even of one’s own descendants”, she wrote in a report published in April (PDF) on the legal scope of this concept.
The lawyer Emilie Gaillard, lecturer at Sciences Po Normandie, also explains in an interview with the magazine Sesame “that law, traditionally, is ‘in two dimensions’: current law focuses on the present, tomorrow’s law will concern itself with the future.”
“The right of future generations includes a third dimension: as soon as we endanger the future, in a context of certainty or uncertainty, we must adapt our responsibility, our law, our policy or our economy in the temporal light of the scope of our actions.”
Emilie Gaillard, lawyerin the magazine “Sesame”
Does France recognize this right?
France created a Council for the Rights of Future Generations in 1993, by presidential decree. “It would be profoundly unfair if our children had to bear, because of our blindness, the heavy burden of contaminated sites, polluted oceans and rivers”declared François Mitterrand in his speech to inaugurate this independent authority. But the body was dissolved two years later, when its president, Commander Jacques-Yves Cousteau, slammed the door to protest against the resumption of nuclear tests in the Pacific Ocean, at the initiative of Jacques Chirac.
Ten years later, the latter nevertheless proposed in 2001 to “define collective ethics for decision-making, while respecting the rights of future generations”, through the drafting of an Environmental Charter. Integrated in 2005 into French constitutional corpus, the text included in its article 10 that “choices designed to meet the needs of the present must not compromise the ability of future generations and other peoples to meet their own needs.” A crucial text in the evolution of environmental law, explains lawyer Yann Aguila, in a study published on the Constitutional Council website.
On August 12, 2022, the Constitutional Council rightly invoked the Environmental Charter in a decision specifying the conditions for operating a floating LNG terminal in the port of Le Havre, with a view to transporting liquefied natural gas. She considered that, to be consistent with the Constitution, the operation of this terminal was only possible “in the event of a serious threat to the security of gas supply”. For lawyer Arnaud Gossé, a specialist in environmental law, it is however “notnot yet a question of ‘rights’ or ‘rights’ of future generations but, more simply, of the anticipation of their needs”.
Have other countries integrated it?
“If future generations find it difficult to find their way within democratic institutions, they seem to progress more surely in jurisprudence, first and foremost constitutional jurisprudence”observes Sonya Djemni-Wagner. Several countries have thus opened the way to the constitutional recognition of a right applying to individuals who succeed us. In a historic decision rendered on April 5, 2018, the Colombian Supreme Court, for example, recognized that future generations were also subjects of the law, by ruling admissible the complaint of 25 young Colombians against the President of the Republic, ministers and others state representatives in the Amazon.
In 2021, the Constitutional Court of Karlsruhe, Germany, in turn shows the weight that future generations can have in the present: to the general surprise and joy of the young activists of “Fridays for Future”, she had challenged the climate law adopted in 2019. German Sages also believe that the text is not ambitious enough in view of the issues at stake.
“It is not tolerable to allow a certain generation to use up most of the remaining CO2 budget by only reducing emissions relatively moderately.”
The German Constitutional Courtin his decision
Nevertheless, “it is undoubtedly too early to know the posterity of this decision”, notes Sonya Djemni-Wagner.