Sándor Szemesi: From the principle of non-regression to the obligation to step forward - the evolution of the Hungarian Constitutional Court's environmental practice[1] (ABSz, 2025. Különszám, 13-21. o.)

Abstract

With its Decision 5/2025. (VI. 30.) AB of the Constitutional Court of Hungary, the so-called 'climate decision' (klímahatározat), the Hungarian Constitutional Court joined the camp of national (and international) courts that have formulated a forward-looking legal position in relation to the protection of the climate: the climate decision goes beyond the principle of non-retrogression (non-regression, or, in Hungarian literature, non-derogation) set out in the earlier Decision 28/1994. (V. 20.) AB of the Constitutional Court of Hungary, stating that in certain areas related to environmental protection, States are not only bound by the principle of non-regression, but also by an explicit obligation to step forward. The study reviews the relevant practice of the Hungarian Constitutional Court between 1994 and 2025, showing what legal considerations and international examples led to the statement of the obligation to step forward. The study argues that Decision 5/2025. (VI. 30.) AB of the Constitutional Court of Hungary, which declares the obligation to step forward, is of similar significance to Decision 28/1994. (V. 20.) AB of the Constitutional Court of Hungary, both at the national and international levels.

Keywords: non-regression, non-retrogression, non-derogation, obligation to step forward, climate, Hungarian Constitutional Court, right to a healthy environment, living instrument

I. Introductory remarks

In 1994, the Hungarian Constitutional Court adpoted a decision of great global significance when it declared the principle of non-regression (also known as non-retrogression, or, in Hungarian literature, non-derogation[2]) in relation to the right to a healthy environment in Decision 28/1994. (V. 20.) AB of the Constitutional Court of Hungary. This study examines the establishment of the principle of non-regression at the national and international levels and how the Hungarian Constitutional Court's approach has evolved since the Fundamental Law came into force in 2012, particularly in light of the findings of Decision 5/2025. (VI. 30.) AB of the Constitutional Court of Hungary, also known as the Hungarian 'climate decision'.

II. The right to a healthy environment and the principle of non-regression: international legal foundations

II.1. The international legal basis for the right to a healthy environment

Regulations and practices relating to environmental protection are considered one of the newest areas of international law, with a history of just over fifty years. Traditionally, the 1972 Stockholm Conference on the Human Environment is regarded as marking the beginning of international regulation.[3] Since then, substantive and procedural environmental protection regulations (i.e. state obligations) and the human rights aspect of environmental protection (i.e. the right to a healthy environment)[4] have gained increasing prominence in international law.

In the traditional international classification of human rights, the right to a healthy environment belongs much more to the third than to the second (and certainly not to the first) generation of human rights. In the traditional human rights approach, second-generation ('equality') rights include economic, social, and cultural rights, which are essential for ensuring a dignified human life. In contrast, the rights classified as third-generation ('solidarity') human rights are collective in nature, and their guarantee is essential for the whole of society in order to effectively enjoy first- and

- 13/14 -

second-generation human rights.[5] This approach is supported by the fact that the International Covenant on Economic, Social and Cultural Rights (ICESCR), traditionally considered the most important international treaty of second-generation human rights, does not include the right to a healthy environment. This approach is echoed, for example, in the 1972 Stockholm Conference, which stated that "[M]an 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."[6]

In public international law, the obligation to protect the environment requires States to "conserve, protect, and restore the health and integrity of the Earth's ecosystem".[7] This obligation to protect environmental values is usually associated with the principle of non-regression (or non-retrogression) in the literature. This principle is also implicitly reflected in the final document of the Rio+20 conference, albeit with different wording: 'do not backtrack', due to disputes between States.[8]

II.2. The international legal basis for the principle of non-regression (non-retrogression)

The Preamble to the Universal Declaration of Human Rights (UDHR), adopted in 1948, already stated that, by adopting the Declaration, the General Assembly of the United Nations aims to promote respect for human rights and fundamental freedoms, and "by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction".[9]

Under Article 2 (1) of the ICESCR, States are obliged to take steps, "with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures".

In 1990, General Comment No. 3 of the Covenant ruled that States could only retreat from the level of rights already achieved in exceptional circumstances.[10] The Inter-American Convention on Human Rights also followed this approach.[11] While States are obliged to ensure the immediate and full realization of first-generation human rights (traditionally civil and political rights), in the case of second-generation rights, States are given the opportunity to ensure the full enjoyment of these rights gradually, rather than immediately, due to the economic resources required for their implementation. However, the progressive nature of these obligations means that once the relevant laws and regulations have been enacted, the State has a duty to ensure that these rights are enjoyed. In this sense, the principle of non-regression (or, non-retrogression) is the flip side of the principle of progressive realization.[12]

In public international law, the designated future goal of the gradual implementation of second-generation rights is defined by the norms of public international law. However, States can decide what steps to take to ensure the full enjoyment of these rights, primarily in view of their economic capacity. Exceptionally, and primarily for economic reasons, a retreat from the level of protection already achieved may be justified.