THE BACKGROUND OF THE

PROTECTION OF THE INTERESTS OF

FUTURE GENERATIONS IN

INTERNATIONAL LAW AND IN

HUNGARIAN LAW

PRESENTATION BY BOLDIZSAR NAGY

AT THE „RIGHTS OF FUTURE GENERATIONS” WORKSHOP,

CEU, Budapest,31 January 2003

Scheme of the talk

• Intellectual history (philosophical, legal)

• Sources of obligation– Soft law– Hard law– Jurisprudence

• Doctrinal consequences– Principles of protection– Representation

• Transformation into national law– The Hungarian case

“And if there is one word that should

be on everyone’s lips ... one concept

that embodies everything we hope to

achieve here ..., it is responsibility.

Responsibility for each other, but

especially the poor, the vulnerable,

and the oppressed , as fellow

members of a single human family.

Responsibility for our planet, whose

bounty is the very basis for human

well-being and progress. And most of

all, responsibility for the future , for

our children, and their children.”

Intellectual history (philosophical, legal,)

• Philosophical– Intellectual traditions about the wealth of the

Earth (natural and cultural) to be treated as borrowed from future and/or transmitted to posterity

– Rawls: A theory of justice, point 44– Partridge, Barry, Streeten, Stone– -The „Maltese” center

• Legal

• The common heritage Stockholm, 1972of mankind

Sources of obligationSoft Law

Stockholm Declaration, UN Conference on Environment, 1972

Principle 1

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of

dignity and well-being, and he bears a solemn responsibility to protect and improve the

environment for present and future generations

Sources of obligationSoft Law

World Charter for Nature (GA Res 37/ 7 of 28 October 1982)

• Reaffirming that man must acquire the knowledge to maintain and enhance his ability to use natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of present and future generations

Sources of obligationSoft law

Rio Declaration, UNCED, 1992

Principle 3

• The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

Sources of obligation Soft law

United Nations Millennium DeclarationA/RES/55/2 18 September 2000

“We recognise that, in addition to our separate responsibilities to our individual

societies, we have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. As leaders we have a duty therefore to all the

world’s people, especially the most vulnerable and, in particular, the children of the world, to

whom the future belongs.”

Sources of obligationSoft Law

Johannesburg Declaration on Sustainable Development

4 September 2002 A/CONF.199/20,

26. We recognise that sustainable development requires a long-term perspective and broad-based participation in policy formulation, decision-making and implementation at all levels.…

37. From the African continent, the cradle of humankind, we solemnly pledge to the peoples of the world and the generations that will surely inherit this Earth that we are determined to ensure that our collective hope for sustainable development is realised

•

Sources of obligationSoft law

1997 UNESCO General Conference:Declaration on the Responsibilities of the Present

Generations Towards Future Generations– 12 Articles

• Responsibility• Freedom of choice• Perpetuation of humankind• Preservation of life on Earth• Environment• Biodiversity• Cultural heritage• Common heritage of Mankind• Peace• Development and education• Non-discrimination• Implementation

Sources of obligationSoft law, recent documents

ILA New Delhi Declaration of principles of International Law relating to Sustainable

Development A/Conf,199/8, 2002 July7 principles (sustainable use of resources, equity and poverty

eradication, common but differentiated responsibility, precautionary approach, public participation and access to information, integration and interrelationship)

______________________________________

Venice declaration of Pope John Paul II and the Ecumenical Patriarch Bartholomew I

Venice 10 June 2002„We have not been entrusted with unlimited power over

creation , we are only stewards of the common heritage”

Sources of obligationHard Law

• Early references to future generations– United Nations Charter 1945– Int’l Conv. for the Regulation of Whaling

• More recent conventions dealing with – Species and biodiversity – Air and climate protection– Marine environment– International watercourses– General environmental issues– Cultural and architectural heritage

Sources of obligationHard Law

• An example:

1992 UN Convention on Biological Diversity• Preamble:

Determined to conserve and sustainably use biological diversity for the benefit of present and future generations…

• Art 2. : „Sustainable use" means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.

Sources of obligationJurisprudence

International Court of Justice Judgment 25 September 1997 Gabcikovo-Nagymaros

Project Case, para 140.

• The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.

Sources of obligationJurisprudence

• Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind — for present and future generations — of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.

Sources of obligationJurisprudence

Minors Oposa v. The Secretary of the Department of Environment and Natural

Resources The Philippines Supreme Court, 30 July 1993

• Children and succeeding generations had standing claiming that the forestry practice was hurting their and the future generations’ rights

Doctrinal Consequences

• Principles of intergenerational equity (E. B. Weiss)– Conservation of options

• „Conservation of options requires that on balance the diversity of the resource base is maintained” (In Fairness, p. 42)

– Conservation of quality• „..requires that we leave the quality of the

natural and cultural environment in no worse condition than we received it.”

– Conservation of access• „…gives the present generation a

reasonable, non-discriminatory right of access to the natural and cultural resources of our planet”

Doctrinal Consequences

• Legal principles and concepts specifically entailing a long term perspective

• Principles– The precautionary principle– The common but differentiated responsibility

of states (and other actors)

• Concepts– Sustainable development– The common concern of mankind– The Common heritage of mankind

Doctrinal Consequences

• The representational problem

– Will they exist?– Rights or interests is what they have?– Are they subjects of international law with

personality and/or capacity?– How can their preferences be identified?– Who should represent in the present their

(assumed) preferences and their rights/interests?

Transformation of the protection of future generations into national law

• Incorporating treaties

• Adopting national legislation

• Innovative jurisprudence

• Institutional measures

Transformation into national law

• Johannesburg summit, Plan of Action Chapter XI. H. : Strengthening institutional frameworks for sustainable development at the national level

162. States should:

(a) ... promote ... sustainable development …including through the establishment or strengthening of existing authorities and mechanisms necessary for policy-making, co-ordination and implementation and enforcement of laws...

• (b) Take immediate steps to make progress in the formulation and elaboration of national strategies for sustainable development and begin their implementation by 2005.

• 163. Each country has the primary responsibility for its own sustainable development, …[and] .. should promote sustainable development at the national level by, inter alia, enacting and enforcing clear and effective laws ...

• 164. All countries should also promote public participation, including through measures that provide access to information....

• 165. Further promote the establishment or enhancement of sustainable development councils and/or co-ordination structures at the national level, including at the local level, in order to provide a high-level focus on sustainable development policies. In that context, multi-stakeholder participation should be promoted.

The Hungarian case

• Incorporating treaties - yes

• Adopting national legislation - yes

• Innovative jurisprudence - Traces of the protection of

future generations in Constitutional Court decisions on the

right to a healthy environment

• Institutional measures

• Ombudsperson needed!

• “Let us face an uncomfortable truth: the model of development we are accustomed to has been fruitful for the few, but flawed for the many. A path to prosperity that ravages the environment and leaves a majority of humankind behind in squalor will soon prove to be a dead-end road for everyone...

• The world today needs to usher in a season of transformation, a season of stewardship. Let it be a season in which we make a long-overdue investment in the survival and security of future generations. “

Kofi Annan.

Johannesburg, WSSD, 2002

Thanks for the attention