A proposal for an Ombud for Future Generations

Posted: December 12, 2019 | Author: | Filed under: environmental rights, future generations, Greek Ombudsman, ombuds, research | Tags: | Leave a comment

The Ombud’s role in environmental governance and sustainable development at national and international level: the protection of future generations

In this post, Vassiliki Vretou discusses her new book, which deals with the Institution of the Ombud and its role in protecting environmental rights, including those of children and future generations. She makes the connection between human rights and environment and highlights the Ombud’s role in environmental governance, and she proposes the establishment of an Ombud for Future Generations operating at international, national and regional levels.

By Vassiliki  Vretou 

In the age of modern capitalism, the legitimate in-principle freedom to consume leads on the one hand to exhaustion of natural and other resources and on the other to degradation and substantial reduction of freedoms and choices of groups and individuals who lack power and are disenfranchised. However, one of the most particular characteristics of modern times is that the freedom to consume that is enjoyed by the present generation can deprive future generations of basic goods. A contradiction bedevils our time, best illustrated in the phrase, ‘freedom without acceptance and assumption of responsibility can destroy the very freedom ‘, while it is rightly argued that solidarity with ‘others’ is necessary in order to protect ‘us’.

This PhD dissertation, to be published initially in Greece, deals with issues of intergenerational equity, with the main purpose to reveal new rights and obligations which must from now on imbue the relations of this generation with future generations, with the latter being considered as a legal entity to be taken into account.

The premise of this work is that many current actions will have an impact on the near and even more on the distant future, affecting the interests of future generations, a fact with which contemporary human society and its political leaders must engage. In order to safeguard the interests of future generations and establish a common reference, a new institution should prevail within the framework of global environmental governance and be able to act for future generations and function on the terms of New Ethics. This institution should take the form of an Ombud operating at an international level with substantial institutional authority to engage with all peer institutions that could be involved in the management of this new problem.

In developing this proposal, I carried out research into similar international institutions dealing with human rights and environmental protection and compared similar national institutions on the basis of a special questionnaire forwarded to Ombuds institutions and NGOs in EU countries. The research has moved across the spectrum of multilevel environmental governance at international, regional and national levels. The study of environmental governance, as shaped through theoretical and practical convergences and controversies over the last thirty years, has become focused on issues of sustainability, intergenerational equality and the pursuit of obligations of present generations, or future generations, in relation to a healthy and quality environment. It was not limited to the theoretical field, but also sought practical documentation of its conclusions: for the completeness of the study – as already mentioned – a special questionnaire was drafted, which was sent by e-mail to relevant bodies and institutions, mainly European and international. The responses were evaluated and conclusions were drawn.

A multifaceted analysis of the research findings provides the necessary evidence that it is not a luxury to establish such an institution, which can act as a special mediator and consultant starting with ‘the silent environmental victims’ and giving voice to the rights of future generations.

An outline of the work is set out below.

Research structure and methodological choices

This work consists of Introduction, three parts and nine chapters.

Part One is entitled ‘The environmental legal order with an emphasis on future generations’ and consists of four sub-chapters. This partrefers both to the existing environmental contractual framework – either as a hard law or as a soft law – and to national constitutional provisions that make direct and/or indirect reference to the existence of future generations and the rights or obligations of present generations toward ensuring a clean environment. Part One also reflects on the decisions of courts or other committees – which function as quasi-courts – that have dealt with the issue of future generations, mainly considering environmental cases and environmental degradation issues. Especially important is the reference in very recent developments, including in appeals and court decisions.

Chapter 1, entitled ‘The Modern Trends of International and Union Legislation on the Environment and Future Generations’, provides a detailed listing and evaluation of the contractual framework that makes reference to the environment and future generations.

Chapter 2, entitled ‘Current trends in national environmental legislation and future generations’, provides detailed research, reference and recording of national constitutions referring to and protecting the rights and interests of future generations.

Chapter 3, entitled ‘Current trends in environmental case law and future generations’, presents both older and more recent court rulings and lawsuits, which have not yet been dealt with. The key point was again to refer to trans-generational[DMT1] equality, future generations and the question of the possibility of legal representation by members of the current generation to argue for the right to a clean and healthy environment.

Chapter 4, entitled ‘The foundation of a future generations right in the environment’, addresses the theoretical discussion and concern raised by the foundation of a future generations right, with an emphasis on the environment. In particular, this chapter explores the starting point and ongoing path of the development of a legal right to a healthy, clean and safe environment. I consider this right as a focal point for the rights of future generations and for the new responsibility of humanity that emerges through a new two-way understanding and conception of the time and course of humanity within it. Finally, this chapter analyses the possibility of having and guaranteeing the right of future generations to the environment. This section defines the concept of ‘future generation’ and deepens the discussion of the responsibility or obligation of the present generation towards the future generation.

Part Two is entitled ‘An Ombudsman for Future Generations’and records the gap that exists in existing international environmental governance and the need to formulate and implement a new proposal that raises the issue of future generations and environmental issues. This demonstrates the need for the process of institutionalising and recognising an Ombudsman for the environment and future generations.

Chapter 5, entitled ‘The Importance of an Ombudsman for Future Generations’, makes selective reference to some of the key international environmental organisations, such as the UN Environment Program (UNEP) and the Commission for Sustainable Development (CDS). What emerges is that existing institutions do not have the competence or specialised staff to handle the issues of future generations and to act expressly on their behalf. The Ombud institution, its key features and its positive and negative characteristics, is discussed.

Chapter 6, entitled ‘Key Proposals for Creating an Ombudsman for Future Generations’, presents key theoretical proposals to create an institution for future generations. Proposals are presented in chronological order. At the end of the chapter, I present, in detail, all the existing national institutions (Ombuds) that are already functioning with the responsibility of protecting the interests of future generations.

Part Three, entitled ‘Research Conclusions and Thesis Proposal’, covers the final three chapters of the thesis and explains the research methodology and an overview of the findings and the arguments for the proposal.

Chapter 7, entitled ‘Field Research Evaluation’ presents the questionnaire developed for the research and sent mainly to representatives of national Ombuds in European countries. Subsequently, the answers to each question are grouped together and the conclusions are finally evaluated. The responses to the questionnaire are at the end of the Annexes.

Chapter 8, entitled ‘The findings of the theoretical research, sets out the conclusions drawn from the previous chapters.

Chapter 9  sets out and discusses the rational, moral and legal arguments for the proposal for an Ombud for Future Generations.

About the author:

Vassiliki K. Vretou is a Lawyer-Senior Investigator with the Greek Ombudsman  (Synigoros tou Politi), in the Department of Quality of Life & Environment. Since 2017, she has been seconded to the General Secretariat of Greek Government.

Vretou is a PhD in International and European environmental and sustainability matters. She specialises in environmental law and her main work is to mediate between citizens and public services, with the view to protect citizens’ rights, combating maladministration and ensuring respect of legality.

She can be contacted at v.vretou@yahoo.gr or vassilikivretou@gmail.com