e-Pública: Revista Eletrónica de Direito Público

Editorial

National institutions for the protection of the interests of future generations

Drawing from the persistent challenges related to sustainable development, the Rio+20 Summit invited the Secretary General of the United Nations to provide a report on the need for promoting intergenerational solidarity for the achievement of sustainable development, taking into account the needs of future generations. The Secretary General released his Report entitled “Intergenerational Solidarity and the Needs of Future Generations” in 2013, in which he established that intergenerational solidarity is embedded in the concept of sustainable development, and is a universal value of humanity. The Report named eight national institutions that have launched effective programs for the representation and protection of the needs of future generations and can serve as models for the further promotion of intergenerational solidarity. Furthermore, the Secretary General invited the UN High Level Political Forum to consider the most suitable mechanisms to promote intergenerational equity and sustainable development at the UN level. The present article seeks to explore the diverse solutions presented in the Secretary General's Report for the institutional protection of the human and natural environment, with the aim to delineate options for possible models to institutionalise concern for future generations at the national level, as well as to suggest options towards international cooperation to foster intergenerational equity and sustainable development at the regional and the global level.

Environmental degradation as age discrimination

This paper argues that anti-age-discrimination law can be used in environmental litigation to combat environmental degradation, including climate inaction. This claim is premised on the possibility of a cohortal reading of anti-age-discrimination law, allowing to challenge discriminatory environmental degradation between generations. Such a cohortal reading received implicit legal support e.g. in the 2012 Commission v. Hungary ECJ case. We specify the personal and material scope conditions under which this strategy could be legally successful.

Crimes against future generations

The proliferation of harmful incidents affecting humanity's future calls for increased effectiveness in international law. Events causing real or hypothetical harm, also trans-generational harm, constitute new realities which must be taken into account. These incidents are both complex and extremely serious. At present several possibilities are opening up to strengthen the process of recognising crimes against future generation. The environmental aspect of human rights, as well as the prevalence of social initiatives, will doubtless contribute to the support of this emerging process. Nevertheless it remains essential to weigh up the “pros and cons”. Other approaches are also possible such as: the defence of common global assets, reinforcing international law about catastrophic events or again invoking international law relating to future generations. One thing remains certain: international law is now entering a new era of deep and far-reaching transformation.

Sustainable development concerning socioeconomic rights: a duty towards future generations? An international humanitarian legal right for future generations

The notion of sustainable development, in international law, is already vastly known, mainly as a principle of environmental international law. Nonetheless, there are still some major questions that must be addressed: is it, or will it ever be, a legal, justiciable principle of international law? What is it, specifically, composed by? In which terms does it surpass the environmental dimension? In the analyses of these questions, this article will procure to clarify the different dimensions of sustainable development, specifically in its socio-economic dimension, its direct connection to future generations in terms of intergenerational equity and the application of this principal in international and national courts.

Intergenerational Injustice and Party Politics

Intergenerational injustice is becoming increasingly apparent in the voting system in the UK. Recent general elections have witnessed a growing disparity in turnout between younger age cohorts and their older counterparts. This paper argues that the growing political influence of the so-called “grey vote” can be seen in various decisions taken by the present UK government that have harmed the interests of young people, and that there is a danger this could result in a negative feedback effect whereby young people become increasingly alienated from the political system because they feel that it does not serve their interests. The author suggests various steps which need to be taken to restore young peoples' faith in democracy and to reverse the slide towards the UK becoming a parliamentary gerontocracy.

Aging Electorates, Intergenerational Fairness and Pro-Elderly Policy Bias: A Survey of Research in Comparative Politics

This article reviews the state of the art in comparative politics and political sociology on the interplay between population aging and public policies in OECD democracies. It discusses findings from the Intergenerational Justice Index (IJI) - a simple four-dimensional indicator developed with the Bertelsmann Stiftung in order to compare intergenerational justice in practice across 29 societies (Vanhuysse 2013). Three of the IJI dimensions measure policy outcomes that leave legacy burdens towards younger and future generations (ecological footprint, child poverty, and public debt levels per child) whereas the fourth dimension measures policy inputs in the form of welfare states' overall pro-elderly spending bias. I argue that demography is not destiny: good policy design strongly mediates the direct influence of population aging on pro-elderly policy bias and intergenerational equity. Demographic change provides urgent arguments for (re)activating the fiscal and human capital basis of aging welfare states and for investing in early human capital. But the institutional complexities and context-dependencies of generational politics do not justify blanket generational blame games.

Philosophy of History and Generational Ethics

Scholars of Philosophy of History and scholars of Future Ethics/Generational Ethics have started to explore the interdependencies between their respective disciplines. This article sheds light on Rohbeck's notion to incorporate Future Ethics within Philosophy of History. I argue that teleological concepts, such as Hegel's and Marx', are a constituting component of Philosophy of History. As they are incommensurable with Future Ethics/Generational Ethics, the prospects of a merger of the two disciplines look bleak. At the same time, the notions of ‘progress' and ‘development' play a central role in both disciplines. As the ‘lead discipline', Future Ethics/Generational Ethics should take an interest in teleological concepts of history, historiography and philosophy of history instead of largely ignoring these disciplines, as is the status quo.

Democracy and intergenerational justice

The Ombudsman and the promotion and protection of Human Rights: the present and the future

UNESCO and the protection of the interests of Future Generations

Strengthening Futures Thinking in Parliaments

The patient, the medical practitioner and the hospital: the core of the noncontractual civil liability in medical malpractice, based on guilt

O presente artigo pretende delimitar o regime de responsabilidade civil extracontratual subjectiva aplicável aos hospitais públicos e aos médicos, que se encontram ao serviço daqueles, pela prática de actos médicos lesivos. Para isso, proceder-se-á à análise dos requisitos de responsabilidade civil, de um ponto de vista prático confrontando-se a lei, e o regime que dela resulta, com o modo como a jurisprudência a tem entendido e aplicado.

This article analyses the legal regime of noncontractual civil liability, based on guilt, applicable to hospitals controlled by the Portuguese State and to medical practitioners from such hospitals, in cases of medical malpractice. For that purpose, the requirements of noncontractual liability will be considered from a practical point of view comparing the Portuguese legal regime with the Portuguese Court's decisions which have applied it.

Brief thoughts on the transposition of the directives on public procurement (2014): Do we need a new public contracts code?

As novas Directivas comunitárias em matéria de contratação pública obrigarão o legislador Português a proceder à revisão do Código dos Contratos Públicos. No texto apela-se a que essa transposição, que traduz uma decisão política, não seja feita de forma acrítica mas sim de forma participada e ponderada, aproveitando-se para alterar os aspectos do Código que careçam de aperfeiçoamento mas sem cair na tentação (e no erro) de proceder à elaboração de um novo Código.

The Portuguese Government will revise the Public Contracts Code in accordance with the new European Directives on public procurement. The author claims that the Code's revision implies a political decision that shall be taken after an open and participated debate has taken place. The author further argues that the legal framework, dated 2008, may now be subject to any amendments found necessary, other than those strictly required by the Directives. It is however sustained that there is no need for the approval of a new Public Contracts Code.

Sports Global Law: Racing Against the Clock, Competing for a Comprehensive Understanding

From a globalized world emerges the requirement for global administration and global regulation. There is a tendency of re-thinking the character of law in order to create systems that suit the requirements of our connected world and one system of this kind is Sports Global Law - A phenomenon that covers all the definitions of “international sports law” and “lex sportiva” in order to describe the regulatory system developed by sport institutions, may they be of private nature( like the Olympic Movement) or hybrid-public-private (like the World Anti Doping Regime). The underlying objective of this article is to portray the general nature of global law and to deliver a comprehensive explanation of in how far sports global law can be an example for global administration.

The Unified Patent Court: some problems about access to medicines in Portugal

A entrada em vigor, sem reservas relativamente a Portugal, do Acordo relativo ao Tribunal Unificado de Patentes, tem implicações desvantajosas para o acesso a medicamentos a custos comportáveis e para a sustentabilidade do Serviço Nacional de Saúde.

The entry into force unreservedly for Portugal, of the Agreement on the Unified Patent Court has unfavorable implications for access to medicines at affordable costs and the sustainability of the National Health Service.

Legality and Interpretation: Control by the Constitutional Court of norms laid down by the judge in matters subject to the principle of legality

Tendo como pano de fundo o já longo debate na jurisprudência constitucional relativo à sindicabilidade, em sede de fiscalização concreta da constitucionalidade, de normas enunciadas pelo intérprete em áreas ao abrigo dos princípios da legalidade fiscal e penal, a presente exposição procede a uma análise das diferentes posições sobre o tema na doutrina e jurisprudência, procurando igualmente apontar critérios que possam ser úteis na distinção entre decisão e interpretação normativa e no apuramento da possibilidade de sindicabilidade pelo Tribunal Constitucional destas operações interpretativas. Por fim, explora-se a existência de uma inconstitucionalidade também das normas sobre interpretação, quando interpretadas no sentido de permitirem uma interpretação violadora do princípio da legalidade.

In light of the ongoing debate in Portuguese Constitutional case law regarding the possibility of judicial review by the Constitutional Court of legal norms created by the interpreter when faced with a strict obligation of adherence to the principle of legality, in particular in the fields of criminal and tax law, this paper analyses the different scholarly and jurisprudential approaches to the topic and attempts to offer useful criteria to allow for a conceptual distinction between interpretative procedures and judicial decision making. Furthermore, the paper looks into the possibility of the unconstitutionality of the legal rules that govern interpretation themselves, when interpreted in a manner that allows for a violation of the constitutional principle of legality.