nternational Law As well as the Right To A Healthy Environment Being a Jus Cogens Human Right . JURISPRUDENTIAL BACKDROP AND THEORETICAL ISSUES

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To time, traditional international law does not necessarily consider human environmental rights with a clean and healthy environment to become jus cogens human right. Jus cogens (“compelling law”) identifies preemptory legal principles and norms which can be binding on all international Declares, regardless of their consent.

They are non-derogable in the particular sense that States cannot make a reservation to a treaty or help make domestic or international laws which can be in conflict with any international agreement they’ve ratified and thus to that they are a party. They “prevail over and invalidate international agreements as well as other rules of international law in conflict with them… [and are] subject to modification only by way of a subsequent norm… having the identical character. ” (1) Hence, they are the axiomatic and also universally accepted legal norms in which bind all nations under jus gentium (legislation of nations). For illustration, some U. N. Charter provisions and conventions against slavery or torture are believed jus cogens rules of international law which can be nonderogable by parties to virtually any international convention.

While the international legal method has evolved to embrace and also codify basic, non-derogable human legal rights (2), the evolution of environmental legal regimes never have advanced as far. While the former are finding a place at the highest amount of universally recognized legal rights, the particular latter have only recently and also over much opposition, reached a modest amount of recognition as a legally regulated activity inside economics and politics of lasting development.

1. The international legal community recognizes the identical sources of international law since does the United States’ legitimate system. The three sources of global law are stated and defined inside the Restatement (Third) with the Foreign Relations Law of the usa (R3dFRLUS), Section 102. The initial source is Customary International Legislation (CIL), defined because the “general and consistent practice of states followed away from a sense of legal obligation” (3) (opinio juris sive necessitatus), as opposed to out of moral obligation. Moreover, CIL is violated whenever circumstances, “as a matter of express policy,… practices, encourages or condones (any) genocide, (b) slavery… (c) the killing or causing the disappearance of an individual, (d) torture or perhaps other cruel, inhuman or degrading therapy… or (g) a frequent pattern of gross violations regarding internationally recognized human rights. ” (4) From what extent such human rights must be “internationally recognized” is not apparent, but surely a majority with the world’s nations must recognize these kinds of rights before a “consistent pattern of gross violations” brings about a violation of CIL. CIL is analogous to “course regarding dealing” or “usage of trade” inside the domestic commercial legal system.

Proof CIL includes “constitutional, legislative, and also executive promulgations of states, proclamations, judicial selections, arbitral awards, writings of experts on international law, international deals, and resolutions and recommendations regarding international conferences and organizations. ” (5) That follows that such evidence is sufficient to make “internationally recognized individual rights” protected under universally identified international law. Thus, CIL may be created by the general proliferation with the legal acknowledgment (opinio juris) and also actions of States of what precisely constitutes “internationally recognized human legal rights. ”

2. The next amount of binding international law is in which of international agreements (treaties), or perhaps Conventional International Law. Just since jus cogens rights and principles of law, as well since CIL, are primary and generally binding legal precepts, so do international treaties form binding international law for your Party Members that have ratified in which treaty. The same way that several States’ domestic constitutional law declares the essential human rights of each California’s citizens, so do international treaties create binding law about the rights delineated therein, according to the customary global jus gentium principle of pacta sunt servanda (agreements can be respected). Treaties are subsequently internalized by the domestic legal system being a matter of law. Thus, as an example, the U. N Charter’s provision against the usage of force is binding international law on all States plus it, in turn, is binding law in america, for example, and on the citizens. (6) Treaties are analogous to “contracts” inside the domestic legal system.

Evidence regarding Conventional International Law includes treaties, needless to say, as well as related substance, interpreted under the usual canons of construction of depending on the text itself and the particular words’ ordinary meanings. (7) Usually, conventional law has to be interpreted inside context of CIL. (8) Being a practical matter, treaties are usually modified by amendments, protocols and also (usually technical) annexes. Mechanisms exist for “circumventing strict application of consent” from the party states. Generally, these components include “framework or umbrella events that merely state general commitments and establish the machinery regarding further norm-formulating devices… individual practices establishing particular substantive obligations… [and] complex annexes. ” (9) These types of new instruments “do no require ratification but access force in some simplified approach. ” (10) As an example, they may require only signatures, or they access force for all original parties each time a minimum number of States ratify the modification or unless the very least number of States object in just a certain time frame, or switches into force for all except those who object. (11) With regards to the treaty itself, once basic comprehensive agreement is reached, it is not necessary for many to consent to certain modifications so they can go into effect. “[I]n an expression these are instances of a great IGO [(international governmental organization)] organ ‘legislating’ immediately for [S]tates. ” (12)

3. Ultimately, rules of international law may also be derived from universal General Principles of Law “common for the major legal systems of the entire world. ” (13) These kinds of “general principles of law” are principles of law therefore, not of international law per se. While many consider these general principles to become secondary source of international legislation that “may be invoked since supplementary rules… where appropriate” (18), some consider them by using an “footing of formal equality with all the two positivist elements of custom made and treaty”. (15) Examples will be the principles of res judicata, fairness, justice, and estoppel. Frequently, these kinds of rules are inferred by “analogy to be able to domestic law concerning rules regarding procedure, evidence and jurisdiction. inches (16) However, “while shared concepts of of internal law can be utilized as a fall-back, there are sever limits due to characteristic differences between international legislation and internal law. ” (17) Proof General Principles of Law contains “municipal laws, doctrine and judicial selections. ” (18)

Treaty provisions and their inherent obligations can cause binding CIL if they are usually “of a fundamentally norm-creating character for instance could be regarded as forming the cornerstone of a general rule regarding law. ” (19) A simple premise of this article is the “relatively exclusive ways (of lawmaking) with the past are not suitable regarding contemporary circumstances. ” (20) Jonathan Charney retains that today’s CIL is a growing number of being created by consensual multilateral community forums, as opposed to State training and opinio juris, “[consensus, defined as the lack of expressed objections to the rule by any participant, may often be sufficient… In theory, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum could be sufficient to establish new international law.” (21) This process should be distinguished conceptually as “general international law”, rather than CIL, as the International Court of Justice (ICJ) has often done.

In like vein, Professor Gunther Handl argues that all multilateral environmental agreements (MEAs) of “global applicability” create “general international law”:

“A multilateral treaty that addresses fundamental concerns of the international community at large, and that as such is strongly supported by the vast majority of states, by international organizations and other transnational actors,– and this is, of course, precisely the case with the biodiversity, climate, and ozone regimes, among others-may indeed create expectations of general compliance, in short such a treaty may come to be seen as reflecting legal standards of general applicability… and as such must be deemed capable of creating rights and obligations both for third states and third organizations.” (22)

Notwithstanding, Daniel Bodansky argues that CIL is so rarely supported by State action, that it is not customary law at all. “International environmental norms reflect not how states regularly behave, but how states speak to each other.” (23) Calling such law “declarative law” that is part of a “myth system” representing the collective ideals and the “verbal practice” of States, he concludes that “our time and efforts would be better spent attempting to translate the general norms of international environmental relations into concrete treaties and actions.” (24)

However, a review of the current status of international human rights and environmental law may reveal the mechanisms for raising environmental rights to the level of jus cogens rights. For example, the U.N. Convention on the Law of the Seas (UNCLOS), whose negotiation was initiated in 1972 and signed in 1982, was considered by most countries to be CIL by the time it came into force in 1994. (25)

II. CURRENT STATUS OF THE RIGHT TO A HEALTHY ENVIRONMENT No State today will publicly state that it is within its sovereign rights to damage their domestic environment, much less that of the international community, however most States do not guarantee environmental protection as a basic human right. Currently, environmental law is composed of mostly Conventional International Law and some CIL. The former relies on express consent and the latter on implied consent, unless a State avails itself of the Persistent Objector principle, which precludes it from being bound by even most CIL. Unlike for human rights and international crimes, there is no general environmental rights court in existence today. While the Law of the Sea Tribunal and other U.N. forums (e.g., the ICJ) exist for trying cases of treaty violations, non-treaty specific violations have no international venue at present. Italian Supreme Court Justice Amedeo Postiglione states that

“[T]he human right to the environment, must have, at the international level, a specific organ of protection for a fundamental legal and political reason: the environment is not a right of States but of individuals and cannot be effectively protected by the International Court of Justice in the Hague because the predominantly economic interests of the States and existing institutions are often at loggerheads with the human right to the environment.” (26)

Domestic remedies would have to be pursued first, of course, but standing would be granted to NGOs, individuals, and States when such remedies proved futile or “the dispute raises issues of international importance.” (27) For example, although the ICJ has an “environmental chamber” and U.S. courts often appoint “special masters” to handle these types of disputes, it is clear that the recognition of the human right to the environment needs an international court of its own in order to recognize such a right and remedy international violations in an efficient and equitable manner. (28)

III. THE JUS COGENS NATURE OF ENVIRONMENTAL RIGHTS Irrespective of specific treaty obligations and domestic environmental legislation, do States, or the international community as a whole, have a duty to take measures to prevent and safeguard against environmental hazards?

Human rights are “claims of entitlement” that arise “as of right” (31) and are independent of external justification; they are “self evident” and fundamental to any human being living a dignified, healthy and productive and rewarding life. As Louis Henkin points out:

“Human rights are not some abstract, inchoate ‘good’; they are defined, particular claims listed in international instruments such as the [U.N.’s] Universal Declaration of Human Rights and the major covenants and conventions. They are those benefits deemed essential for individual well-being [sic], dignity, and fulfillment, and that reflect a common sense of justice, fairness, and decency. [No longer are human rights regarded as grounded in or justified by utilitarianism,] natural law,… social contract, or any other political theory…[but] are derived from accepted principles, or are required by accepted ends-societal ends such as peace and justice; individual ends such as human dignity, happiness, fulfillment. [Like the fundamental rights guaranteed by the U.S. Constitution, these rights are] inalienable and imprescriptible; they cannot be transferred, forfeited, or waived; they cannot be lost by having been usurped, or by one’s failure to exercise or assert them.” (32)

Henkin distinguishes between “immunity claims” (such as ‘the State cannot do X to me’; the hallmark of the U.S. constitutional jurisprudential system) and “resource claims” (such as ‘I have a right to Y’) such that the individual has the right to, for example, free speech, “food, housing, and other basic human needs.” (33) In today’s “global village”, the Right to a Healthy Environment is clearly a “resource claim” and a basic human need that transcends national boundaries.

According to R.G. Ramcharan, there is “a strict duty… to take effective measures” by States and the international community as a whole to protect the environment from the potential hazards of economic development. (34) His position is that the Human Right to Life is a. jus cogens, non-derogable peremptory norm that by its very nature includes the right to a clean environment. This duty is clearly spelled out in such multilateral treaties as the UN Convention on Desertification, the UN Framework Convention on Climate Change, and the Convention on Biological Diversity. (35) It is expounded in the Stockholm, Rio and Copenhagen Declarations as a core component of the principle of Sustainable Development. It forms the basis of NAFTA’s, the WTO’s and the European Union’s economic development agreements, and the European Convention and the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by most countries in the world, including the United States.

The Human Right to a Healthy Environment is explicitly contained in the Inter-American and African Charters, as well as in the constitution of over 50 countries worldwide. Whether it is based on treaties, CIL, or “basic principles”, the obligation of the international community to the environment is today clearly spelled out and enforceable through international tribunals. For example, the Lhaka Honhat Amid Curiae Brief recognized the rights of the indigenous peoples of Argentina to “an environment that supports physical and spiritual well being and development.” (36) Similarly, in a separate decision, the Inter-American Human Rights Commission upheld the right of the Yanomani in Brazil to a healthy and clean environment. (37) On a global level, the UN Human Rights Committee has indicated that environmental damage is “a violation of the right to life contained in Article 6(1) of the [ICCPR]”. (38)

Thus, today, the erga omnes obligation of States to take effective steps to safeguard the environment is a duty that no State can shirk or ignore. If it does, it runs the risk of prosecution by international courts and having to institute measures commensurate with its responsibility to protect its share of the “global commons”. Interestingly, the concept of jus cogens emerged after World War II as a response to the commonly held view that the sovereignty of States excused them from violating any of the then so-called CILs. According to Black’s Law Dictionary, “there is a close connection between jus cogens and the recognition of a ‘public order of the international community’… Without expressly using the notion of jus cogens, the [ICJ] implied its existence when it referred to obligations erga omnes in its judgment… in the Barcelona Traction Case.” (39)

IV. THIRD GENERATION HUMAN RIGHTS AND THE ENVIRONMENT Is environmental protection is an erga omnes obligation, that is, one owed to the international community as a whole as a jus cogens human right?

In a separate opinion to the Case Concerning the Gebecikovo-Nagymaros Project (Hungary v. Slovakia), Judge Weeramantry, the Vice President of the ICJ, expounded on the legal basis for sustainable development as a general principle of international law. In the process, he concludes that environmental protection is a universal erga omnes legal norm that is both CIL as well as a general principle of law per se. In Gebecikovo, ostensibly to have been decided upon the merits of the treaty governing the building of power plants along the Danube, as well as by international customary law, the ICJ held that the right to development must be balanced with the right to environmental protection by the principle of sustainable development. Even in the absence of a specific treaty provision, the concept of sustainable development has become a legal principle that is “an integral principle of modem international law”. (40)

Sustainable development is also recognized in State practice, such as the Dublin Declaration by the European Council on the Environmental Imperative. (41) As such, sustainable development has in effect been raised to the level of CIL.

For example, the Martens Clause of the 1899 Hague Convention Respecting the Laws and Customs of War on Land has been interpreted in 1996 by Judge Shahabudeen of the ICJ as providing a legal basis for inferring that general principles rise above custom and treaty, having their basis in “principles of humanity and the dictates of public conscience”. (42) According to Weeramantry, “when a duty such as the duty to protect the environment is so well accepted that all citizens act upon it, that duty is part of the legal system in question… as general principles of law recognized by civilized of nations.” (43)

Sustainable development acts as a reconciling principle between economic development and environmental protection. Just as economic development is an inalienable right of States’ self-determination, environmental protection is an erga omnes obligation of all States for the benefit of the global commons that all share. “The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community”, and not just by developing countries. (44)

Drawing upon the rich history of diverse cultures’ legal systems and what he calls “living law”, Judge Weeramantry points out that traditional respect for nature has been a guiding moral and legal principle for economic development throughout history. The ICJ has also recognized these principles in such previous decisions as Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) in 1972. (45) Judge Weeramantry concludes that the “ingrained values of any civilization are the source from which its legal concepts derive… [and that environmental protection is] among those pristine and universal values which command international recognition.” (46)

The first generation of Human Rights were those declared by the “soft law” of the Universal Declaration of Human Rights: “Everyone has the right to life liberty and security of person.” Art. 3. It was modeled on the U.S. Bill of Rights and the American Declaration of Independence. This was echoed in the binding ICCPR (“Every human being has the inherent right to life.”, ICCPR, Art. 6(1) (1966)), which the U.S. has ratified, and the American Convention on Political and Civil Rights of the Inter-American System (which draws direct connections between human rights and environmental rights).

The second generation of human rights emerged with the Economic, Social and Cultural (ECOSOC) Rights developed in such treaties as the International Covenant on Economic, Social and Cultural Rights (ICESCR; which the U.S. has not ratified), and many foreign State’s Constitutions (e.g., Germany, Mexico, and Costa Rica). These include the right to free choice of work, to (usually free) education, to rest, leisure, etc. Highly complied with in Europe, these rights have additionally been expanded by the EU in their European Social Charter (1961) creating much legislation for the protection of workers, women, and children..

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