Intergenerational and Intragenerational Equity

Why it matters here. It is intergenerational equity in an enforceable form: a trust the State cannot dispose of, over resources the next generation will need.

Intragenerational equity

Three provisions carry it.

• Rio Principle 5: all States and all people shall cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world.
• Rio Principle 6: the special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority.
• The Brundtland definition itself, whose first key concept is the essential needs of the world's poor, to which overriding priority should be given.

Worked example

A government proposes to declare a forest a strict protected area, excluding the community that has lived in it for generations.

• Intergenerational equity supports the declaration: the forest passes to the next generation intact.
• Intragenerational equity opposes it in that form: the cost of conservation falls entirely on the poorest people involved, who did not cause the threat to the forest.
• What the law does with the conflict. Rio Principle 22 requires States to recognise and duly support the identity, culture and interests of indigenous people and their communities and to enable their effective participation. Article 8(j) of the Convention on Biological Diversity requires each Party, subject to its national legislation, to respect, preserve and maintain the knowledge, innovations and practices of indigenous and local communities and to encourage the equitable sharing of the benefits arising from their use.
• The resolution. Not exclusion, and not unrestricted use, but participation and benefit sharing. That is what both equities together require, and it is why the two must be taught as a pair.

What it does NOT mean

It does not mean future generations have legal rights. They have no standing anywhere. The doctrine works through duties on the present, and through the trust device, not through the rights of people who do not exist.

It does not mean nothing may be used. Conservation of options is not preservation. A resource may be used at a rate that leaves the options open.

It does not resolve the conflict between the two equities. It names it. The resolution is always particular and is worked out through participation, compensation and benefit sharing.

Quick revision

• Rio Principle 3 holds both equities in one sentence.
• Intergenerational: conservation of options, of quality, and of access; carried by the trust device.
• M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388: the public trust doctrine is part of Indian law.
• Intragenerational: Rio Principles 5 and 6, and the first key concept of the Brundtland definition.
• Rio Principle 22 and Article 8(j) of the biodiversity convention are the participation and benefit-sharing provisions.
• Future generations have no standing; the doctrine works through present duties.

Test yourself

1. Name the three elements of intergenerational equity. Conservation of options, conservation of quality, and conservation of access.

2. State the public trust doctrine as the Supreme Court put it. Resources such as air, the sea, waters and the forests are so important to the people as a whole that private ownership of them would be wholly unjustified; being a gift of nature they must be freely available to everyone, and the State holds them in trust for the public and may not convert them to private or commercial use.

3. Why must the two equities be taught together? Because intergenerational equity alone asks the present poor to bear the cost of conservation for the future, which is the objection the developing States made at Stockholm and which Rio Principle 3 was drafted to answer.