The Rights Of Future Generations And Its Institutionalization In Hungary

The Rights Of Future Generations And Its Institutionalization In Hungary Presented by: Prof. Dr. Bándi Date: 1 June 2023 Outline - Sustainable development - future generations - within EC/EU - SD/SDGs and legal consequences - SD and FG - a short survey - Concepts, considerations - UN way - How to come closer: rights / obligations - FG institutions - Ombudsman for future generations - Hungary The road from Stockholm to SDGs - As early as in 1972 (Stockholm) there are references to generational issues - Bruntland Commission in 1987: "sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs." - 1992, UNCED, Rio, Principle 1: „Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature." and Principle 3: „The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations." - Report on SD law, 1995, several legal constituents, plus: "31. The right to a healthy environment provides a focus to guide the integration of environment and development. Development is sustainable where it advances or realizes the right to a healthy environment." - ILA, New Delhi, 2002, later Sofia 2012: „maturing of the concept into a principle of international law" SD and FG in the EC / EU - Already in the Maastricht Treaty: Art. 2: sustainable development as an objective: „sustainable and non-inflationary growth respecting the environment" - TEU Art. 3.3: sustainable development of Europe, solidarity between generations, 3.5: sustainable development of the Earth - TEU Art.6 - fundamental rights - TFEU Art. 11. integration - TFEU Art. 114 and Title XX - Circular Economy (2015) - Green Deal (2020) 8th EAP - Decision (EU) 2022/591 of the European Parliament and of the Council of 6 April 2022 on a General Union Environment Action Program to 2030 • (5) The Commission responded to the challenges identified in SOER 2020 by adopting the communication of 11 December 2019 entitled 'The European Green Deal', a new growth strategy for the twin green and digital transition that aims to transform the Union into a fair and prosperous society, with a sustainable, competitive, climate-neutral and resource-efficient economy, and to protect, conserve and enhance the Union's natural capital whilst improving the quality of life of current and future generations. • (16)... Through continuous research and innovation, transformation of production and consumption patterns, and adaptation to new challenges and cocreation, the well-being economy strengthens resilience and protects the wellbeing of present and future generations. • (28) Progressing towards the recognition of the right to a clean, healthy and sustainable environment, as laid out in Resolution 48/13 of the United Nations Human Rights Council, is an enabling condition for attaining the priority objectives of the 8th EAP. UN SDG 2015 - Ecologically centered SDGs • 8th EAP (13): According to a model developed by the Stockholm Resilience Centre, the achievement of the environmental- and climate-related SDGs underpins the social and economic SDGs because our societies and economies depend on a healthy biosphere and because sustainable development can only take place within the safe operating space of a stable and resilient planet. Legal considerations and SD - What is the core of SD from legal point of view?: Intergeneration equity + intragenerational equity, multiplied with integration - Generally accepted: • The right to environment • The rights of future generations • Intragenerational equity, i.e., the rights of current generations • Public participation • Cooperation or cooperative instruments (inter-relationship) • Integration (ICJ Gabcikoco-Nagymaros case, 1997: 140. ... This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.") • Precautionary principle and 'scientific uncertainty' • Subsidiarity • Good governance • Resilience (see, e.g. Climate adaptation) Concept - "...the meaning of 'sustainable development' can be reduced to the combination of two principles that can be seen as axiomatic to understand sustainable development: intergenerational and intragenerational equity." (Virginia Barral, 2012) - E.B. Weiss classifies (1992) three major principles in connection with intergenerational equity • To conserve options, diversity of choice - "Future generations are entitled to diversity comparable to that which has been enjoyed by previous generations." • To maintain the quality comparable to that which has been enjoyed by previous generations, • - Equitable access, e.g., access to potable water supplies. UNHCR 2018: "62. Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life." Rights of future or duties of today? - Gaba: "Ultimately, it means that the relationship between the present and the future is not derived from what the future demands of us based on their needs, but what we say to the future about our aspirations." - Bosselmann: "For principle reasons we are unable to determine the needs of future generations. Only more or less informed guesses are possible about the options that future generations may justifiably expect. The reasonable choice, therefore, is for a duty to pass on the integrity of the planetary ecosystem as we have inherited it (ecological integrity)." - 2013 UN Secretary General: "5. Future generations are politically powerless, with the representation of their interests limited to the vicarious concern of present generations." - If rights, the whole range of human rights should be guaranteed, implemented, plus environmental rights observed. UN HRC 2021 / UN GA 2022:... Acknowledging the importance of a safe, clean, healthy and sustainable environment as critical to the enjoyment of all human rights... Considerations - Minors Oposa, 1993: "Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come." - Thompson, 2010: "Democracy's neglect of future citizens has at least four sources. • First, there is the natural human tendency to prefer the immediate to the distant, • ...representatives should be responsive to their constituents ... • ... democracy is government pro tempore.... They try to pass laws and policies that produce results within the limit of their time in office. • - ... a tendency in most modern democracies today to favor the older age group. Suggestion: "To protect future democratic capacities, we should therefore establish some institutions that create roles that give special attention to democratic potential of individuals or groups who are otherwise not represented, or not adequately represented." Some legal and institutional support? - High level statements, human right message - most preferably at the level of the Constitution • Redemptory Hominis 1979 (John-Paul II): "Nor is there any doubt in the Book of Genesis, and elsewhere in the Testament, that the responsible guardian in question is all mankind, along with all generations and clans." • UN Secretary General 2013: "25.... Since we cannot with great certainty ascertain the precise needs and preferences of future generations, we could in devising policies at the very least begin with two considerations: minimizing harm and doing that which benefits both present and future generations." • Hungarian CC: "the status of heritage of future generations", which also includes objective requirements covering the prohibition of non-retrogression among others." (28/2017) AND: This heritage concept goes beyond the state property and might also be coupled with the public trust doctrine. (14/2020) • UN SG 2021: "57. Future generations are, by definition, unrepresented in today's decision-making and unable to articulate their needs. To translate the principle of intergenerational equity into practice, consideration could be given to forums to act on their behalf, as their trustees, as well as instruments to further protect their interests." Options / interpretations - UN Secretary General 2021: "54.... Accounting for the interests of future generations would require two adaptations: strengthening our capacities to understand and assess the future, building long-term thinking into important policies and decision-making; and creating specific forums and instruments to protect the interests of future generations at all levels of governance." - Hungarian CC: „While we may not generally require that natural and legal persons should tailor their behavior to an abstract objective, which has not been specified by the legislator and this also may not be enforced, it is required that the state should unequivocally define those legal obligations, which both the state and private persons should implement, for among other reasons to provide an effective protection for those interests, appraised in Article P) (1) of Fundamental Law ... all those duties, which the state might implement elsewhere with the protection of fundamental rights, here should be executed via the stipulation of legislative and institutional guarantees" (28/2017) - World Future Council (WFC): The major features of such an institution are: longtermism, integration, bringing authority to agreed sustainability goals and holding governments and private actors accountable for not delivering on them, and connecting citizens with the national and even international level decision-making procedures. WFC leaflet in 2018: - "The Guardian (a) as an ombudsperson conveys citizen concerns to the legislating units; (b) as an interface creates incentives for integration and prevents policy incoherence; (c) as an advisory body recommends solutions, (d) as an auditing body traces conflicts of interests and road- blocks to implementation." - 2021 Our Common Agenda (UN SG) "I am also making proposals, such as a repurposed Trusteeship Council, a Futures Lab, a Declaration on Future Generations and a United Nations Special Envoy to ensure that policy and budget decisions take into account their impact on future generations." Hungary: History And Constitutional Mandate - History • Ombudsman for Future Generations established in 2008 as an independent Ombudsman with own staff of nearly 40 people • Restructured in 2011 by the Fundamental Law (Commissioner for Fundamental Rights and two Deputies, one for protection of Future Generations, other for protection of National Minorities) with much smaller staff and somewhat different powers but still strong constitutional mandate - Three thematic pillars in Fundamental Law: • 'Common heritage of the nation' (Art. P) - novelty since 2011: "Natural resources, in particular arable land, forests and the reserves of water, biodiversity, in particular native plant and animal species, as well as cultural assets form the common heritage of the nation; it shall be the obligation of the State and everyone to protect and maintain them, and to preserve them for future generations." - • Right to physical and mental health (Art. XX) • Right to a healthy environment (Art. XXI) In the practice the "interests of future generations" are understood as issues relating to mainly environmental protection, nature conservation matters and cultural heritage protection Main Functions - Investigating citizens' environmental and mal-administration complaints - Being a „watchdog" for any future generations matter deemed significant - Ex officio investigations for exploring systemic problems - Regulatory proposals: commenting on draft bills (through the Commissioner), or initiating legislation on its own - Initiating (through the Commissioner) constitutional scrutiny of acts before the Constitutional Court and scrutiny of local Municipality's acts before the Supreme Court for alleged infringements - Possibility to intervene in court proceedings in the judicial review of environmental regulatory decisions - Providing a neutral platform for negotiations between NGOs, governmental stakeholders, professionals, academia regarding significant matters with relevance to future generations - Permanent invitee in the work of the National SD Council, of the National Environmental Protection Council, right to be heard at the different committees of the Parliament - General awareness raising: media appearances (tv, radio, online, publications) - One of the sustainability institutions in Hungary in the National SD Council's official list Increasing global ecosystem of future generations governance - The Network of Institutions for Future Generations has existed since 2014. With key developments in the last years, it was time for a refresh of the strategy and approach of the Network.