I. Introduction legal and academic issues
In this traditional international law does not consider human rights to the environment clean and healthy environment to Jus cogens human being. Jus cogens ( "compelling law") refers to preemptory legal principles and norms that are binding on all international countries, regardless of their approval. They are not non-mandatory in the sense that the United States can not make a reservation with the treaty or making national or international law which are contrary to the international agreement which they have ratified and thus they are parties. They "dominate and invalidate international agreements and other rules of international law, contrary to the … [and are] subject to change only by a subsequent norm … with the same character." (1) Thus, the derivation system and generally accepted legal norms that bind all nations under jus Gentium (law of nations). For example, some UN Charter provisions and conventions against slavery or torture, including jus cogens rules of international law are nonderogable by party conventions.
While the international legal system has evolved to embrace and even codified basic, non-derogable human rights (2), development of environmental legal regimes have not advanced as far. While the former have found a place at the highest level generally accepted legal rights, the latter have only recently and the high resistance, achieved a modest level of recognition as a legally regulated activities within the economics and politics of sustainable development.
1. The international legal community recognizes the same sources of international law that allows the United States & # 39; legal system. Three sources of international law are observed and defined in the remake (Third) of Foreign Relations Law of the United States (R3dFRLUS), Section 102. The first source is customary international law (CIL), defined as "a general and consistent practice of States followed out of a sense of legal obligation" (3 ) (opinion juris sive necessitatus), rather than out of moral obligation. Furthermore, CIL is violated whenever a state, "as a matter of state policy, … practices, encourages or condones (a) genocide, (b) slavery … (c) the murder or causing the disappearance of persons, (d) torture or other cruel, inhuman or degrading treatment … or (g) consistent pattern of gross violations of internationally recognized human rights. "(4) the extent to which such human rights needs to be" internationally recognized "is not clear, but certainly the majority of the world & # 39; s nations must recognize such a right before "consistent pattern of gross violations" results in violation of CIL. CIL is analogous to the "course of dealing" or "business use" of a domestic commercial legal system.
Evidence of CIL includes "Constitutional, Legislative and executive promulgation states, statements, judgments, arbitral awards, writing experts on international law, international conventions and resolutions and recommendations of international conferences and organizations." (5) It follows that such evidence is enough to make the "internationally recognized human rights" protected under generally accepted international law. Thus CIL can create a wide diffusion of legal recognition (Opinion songs story) and measures, what exactly constitutes "internationally recognized human rights."
2. The next level of binding international law is international agreements (treaties), or Conventional International Law. Just like Jus cogens rights and rules, as well as county, primary and general binding legal orders as an international form binding international law for the party members that have ratified the treaty. Just as some countries & # 39; Domestic Constitutional follows a basic human right of each state & # 39; s citizens, so do international live legally binding on the rights defined therein, the conventional international Jus Gentium principle Pacta are serviced spirit (agreements are respected). Covenants are in turn within a legal system as a matter of law. Thus, for example, the UN Charter & # 39; s provisions against the use of force is binding international law in all countries, and that, in turn, is binding law in the United States, for example, and of its citizens. (6) Contracts are analogous to "contracts" in the legal system.
Evidence of traditional international agreements includes, of course, as well as content, interpreted according to the usual canons of construction rely on the text itself and the words & # 39; ordinary meaning. (7) Often, traditional law has to be interpreted in the context of CIL. (8) As a practical agreements are often modified by amendments, protocols, and (usually technical) annexes. Strategies to "circumvent the strict application of the consent" of the party states. Generally, these methods "framework or umbrella agreements that only the State General obligations and establish machinery for more norm-shaping devices … individual protocols set specific substantive obligations … [and] technical annexes." (9) Most of these new instruments "do no require ratification but into force in some simplified way." (10) For example, they may require only signatures, or they enter into force for all the original parties when a minimum number of countries ratify the amendment or unless the minimum number of states an object within a certain time frame, or goes into effect for all except those who object. (11) Depending on the agreement itself, the basic consensus is reached, it is not necessary for everyone to accept certain changes for them to go into effect. "[I] na feel this is an example of the IGO [(international governmental organization)] organs & # 39; legislating & # 39 ;. Directly to [S] Tates" (12)
3. Finally, international law are also derived from a comprehensive general principles of "common to the major legal systems of the world." (13) These "principles of law" are principles of law as such, not the law itself. While many believe these general rules to be another source of international law which "may be used as additional rules … as we" (14), some consider them the "feet formal equality with two positivist aspects of practice and conventions". (15) Examples are the principles of res judicata, equity, justice and estoppel. Often, these rules infer the "analogy of national rules of procedure, evidence and jurisdiction." (16) However, "the common terminology inner layers can be used as a fall-back, there are limits Sever due to characteristic differences between international law and internal law." (17) Signs of general principles of law includes "local law theory and judicial decisions." (18)
Treaty provisions and entails obligations they can create a binding CIL if they are "basically the norm-creating character such as could be seen as a basis for a general rule of law." (19) The basic premise of this article is "relatively exclusive ways (of legislation) of the past are not suitable for modern conditions." (20) Jonathan Charney maintains that today & # 39; s CIL is more and more being created with consensual multilateral level, as opposed to State practice and opinion juris, and that "[samstaðaskilgreindsemskorturágefinandmæliþeirrireglumeðhvaðaþátttakandigeturoftveriðnógíorðieinskýrarogeindregiðsamþykktyfirlýsinguánær-alhliðadiplómatískumumræðumgætiveriðnógtilaðkomanýjualþjóðalögum"(21)Theprocessshallbecharacterizedlikea"generalinternationallaw"frekarensýslueinsogAlþjóðadómstólsins(ICJ)hefuroftgert
In such vein, Professor Gunther Handl argues that all multilateral environmental agreements (Niko) "Global usefulness" create "general international law"
" multilateral treaty that addresses the fundamental concerns of the international community as a whole, and as such is strongly supported by the vast majority of states, international organizations and other multilateral actors – and this is, of course, the case with biodiversity, climate and ozone regimes, MA can indeed create expectations generally consistent, in short, such a treaty can come to be seen as reflecting the legal requirements of general application … and as such must be considered capable of creating rights and obligations for both the third countries and organizations in. "(22)
Although Daniel Bodansky claims that CIL is so rarely supported by the state action, it is not customary law at all." International environmental standards do not reflect how states regularly perform, but how the state talking to each other. "(23) the work of such laws" declarative law "which is part of the" myth system "representing the common ideals and" verbal exercise "states, he concludes that" our time and effort would be better spent trying to translate general norms of international environmental interaction in concrete agreements and actions. "(24)
However, a review of the current status of international human rights and environmental law may reveal strategies to raise environmental rights to the level of Jus cogens rights. For example, the UN law of the Seas (UNCLOS ), which negotiations began in 1972 and signed in 1982, was considered by most countries to CIL by the time it came into force in 1994. (25)
II. Current status of the right to a healthy environment No state in today will officially stated that it is within its sovereign rights to damage the local environment, much less international, although most states do not guarantee the protection of the environment as a basic human right. Currently, environmental law consists of mostly traditional international law and some of CIL. the former is based on the explicit consent and the latter implied consent, unless a Member State avails itself of the persistent objector principle, which precludes it from being bound by even the 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 UN (eg ICJ) to try cases of treaty violations, have no specific Treaty fraction no international scene at present. Italian Supreme Court Justice Amedeo Postiglione says
"[T] he human rights to the environment, must have, at the international level, specific organization protection of fundamental legal and political reasons: the environment is not just states but individuals can not be in fact protected by the International Court of Justice in the Hague due mainly economic interests of states and existing institutions are often at loggerheads with the human right to the environment. "(26)
Domestic resources would have to be pursued first, of course, but care would be provided to NGOs, individuals and countries where such remedies were futile or "dispute raises issues of international significance." (27) For example, although the ICJ has "environmental chamber" and US courts often appoint "special masters" to handle these types of disputes, it is clear that recognition of human rights to the environment, an international court their own to recognize such a right and remedy international fraction of an efficient and fair manner. (28)
III. THE NATURE OF ENVIRONMENTAL JUS cogens rights independently of specific treaty obligations and national environmental legislation, making States, or the international community as a whole, has an obligation to take measures to prevent and protect against environmental hazards?
Human rights are "just demands" coming up "as correct" (31) and are independent of external reasons; they are "understood" and fundamental to any person live a dignified, healthy and productive and rewarding life. As Louis Henk notes:
"Human rights are not some abstract, inchoate & # 39; good & # 39 ;; defined, particularly set out in international instruments, such as [UN's] Universal Declaration of Human Rights and the basic treaties and agreements. They are these benefits are considered essential for individual well -being [sic] dignity and fulfillment, and it reflects a common sense of justice, fairness and decency. [No longer are human rights regarded as grounded in or justified by utilitarianism,] of nature … the social contract or other political theory … [but] are derived from established principles, or are required by authorized providers-the social ends such as peace and justice ;. individual ends as human dignity, happiness, fulfillment [Like the fundamental rights guaranteed by the US Constitution, these rights are] inalienable and imprescriptible, they can not be transferred, forfeited, or fail, they can not be lost by having been usurped, or some & # 39; s failure to exercise or maintain them "(32)
Henk. distinguishes between "privacy requirements" (such as & # 39; the state can not do X to me & # 39 ;; hallmark of the US constitutional legal system) and "resource requirements" (such as & # 39; I have the right Y & # 39 😉 so that the individual has the right, for example, freedom of speech, "food, housing and other basic needs of the people." (33) today & # 39; s "global village", the right to a healthy environment is clearly "resource requirement" a basic human need that transcends borders.
According to RG Ramcharan, it is "strict duty … to take effective measures" 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. Jus cogens, non-derogable peremptory norm that inherently includes the right to a clean environment. This obligation is clearly spelled out in such multilateral agreements as the Convention on Desertification, the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity. (35) It is interpreted in Stockholm, Rio and Copenhagen Declarations that the fundamental principle of sustainable development. It forms the basis of NAFTA & # 39; s, WTO & # 39; s and the European Union & # 39; s economic development agreements, and the Treaty of Europe and the International Covenant on Civil and Political Rights (ICCPR), which has been ratified in most countries in the world, including the United States.
The Human Right to a healthy environment is especially in the Inter-American and African charters, as the constitution over 50 countries around the world. Whether it is based on agreements, county, or "basic principles", should the international community that the environment is now clearly spelled out and enforced through international arbitration. For example, Lhakar Honhat Amid curiae nutshell recognized rights of indigenous peoples of Argentina to "an environment that supports physical and mental well-being and development." (36) Similarly, in a separate decision, the Inter-American Human Rights Commission upheld the right of Yanomani Brazil in a healthy and clean environment. (37) Globally, the UN Human Rights Committee has indicated that the environment is a "violation of the right to life contained in Article 6 (1) of [ICCPR]". (38)
Thus, today, erga omnes obligation of states to take effective measures to protect the environment is a duty that no country can shirk or ignore. If it does, it runs the risk of prosecution and international courts need to institute measures in proportion to its responsibility to protect its share of "global commons". Interestingly, the concept of jus cogens after World War II in response to the generally held view that sovereignty excused the breach of any of the so-called CILs. According to Black & # 39; s Law Dictionary, "there is a close relationship between jus cogens and the recognition of & # 39; public policy of the international community & # 39; … Without especially with the concept of jus cogens, which [ICJ] suggested its existence when it referred to obligations erga omnes in its judgment … in the Barcelona Traction Case. "(39)
IV. The third generation of human rights and the environment, environmental protection is erga omnes obligation, it is one owed to the international community as a whole Jus cogens human rights?
In another case concerning inspection Gebecikovo-Nagymaros Project (Hungary v. Slovakia), Judge Weeramantry was Vice President of ICJ and explained the legal basis for the sustainable development principle of international law. In the process, he concludes that the environment is a universal erga omnes legal norm that is both CIL as well as principles of law per se. In Gebecikovo, ostensibly to have been decided on the merits of the Treaty apply to the construction of power plants along the Danube, as well as traditional international law, the ICJ held that the right to development must be balanced with the right to protection of the environment with the principle of sustainable development. Even in the absence of a specific treaty provisions, the concept of sustainable development has become a legal principle that is "integral modem principle of international law". (40)
Sustainable development is also recognized in State practice, such statements Dublin European Council on Environmental important. (41) As such, sustainable development has really been raised to the level of CIL.
For example, Martens provisions of the 1899 Hague Convention respecting the laws and customs of war on land has been interpreted in 1996 by Judge Shahabudeen the ICJ that provide the legal basis for inferring that the general rise above convention and covenant have its foundation the "principles of humanity and dictate public conscience". (42) According to Weeramantry, "the duty as the duty to protect the environment is so well accepted that all citizens react to it, the obligation is part of the court system … the principles of law recognized by civilized nations." (43)
Sustainable development acts as a reconciling principle between economic development and environmental protection. Just as economic development is inseparable right of states & # 39; self-determination, environmental protection is erga omnes obligation of all states to the benefit of the global commons that all share. "The principle of sustainable development is thus part of the modern international law for not only inescapable logical necessity, but also because of the wide and general acceptance of the international community", and not just developing countries. (44)
Draw the rich history of diverse cultures & # 39; jurisdiction and what he calls "living law", Judge Weeramantry points out that traditional respect for nature has been guiding moral and legal principle for economic development throughout history. The ICJ has also accepted these rules in such a decision and Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) in 1972. (45) Judge Weeramantry concludes that "ingrained value of each civilization are the source of the legal concepts of its entry into … [and that environmental protection is] among them pristine and universal values that command international recognition." (46)
first generation of human rights were described by "soft law" of the Universal Declaration of human rights: "Everyone has the right to freedom and human life." Art. 3. It was based on the American Bill of Rights and the American Declaration of Independence. This was echoed in the binding Civil and Political Rights ( "Every human being has the inherent right to life." Civil and Political Rights, Art. 6 (1) (1966)), in which the US has ratified, and the American Convention on Civil and Political rights Inter-American System (which draws a direct link between human rights and environmental rights).
The second generation of human rights established by Economic, Social and Cultural (ECOSOC) Rights developed in such agreements as the International Covenant on Economic, Social and Cultural Rights (ICESCR; the United States has not ratified), and many foreign countries & # 39; s Constitution (such as Germany, Mexico and Costa Rica). These include the right to free choice of work, (usually free) education, rest, etc. Highly valued in Europe, these rights have also been extended with the EU in the European Social Charter (1961), creating much legislation for the protection of workers, women and children.
The third and current generation of human rights has come from Eco-Peace-Feminist Movement. These include the right to development, the right to a safe environment and the right to peace. In fact, this is the third generation of rights deals with the problems of poverty and social (and thus legally redressable) evil that lies at the core of environmental problems and violations. The "environmental justice" movement considers cases show that environmental pollution is disproportionately prevalent in minority communities, whether at the local or international level. Author John Cronin & Robert F. Kennedy, Jr., a clearly correct its research on environmental pollution along the Hudson River River Keepers: Two Activists Fight to Reclaim our environment as a basic human right. (47) This mainly US motion focuses on "environmental racism" as a way to troubleshoot or excessive pollution minority communities as a fraction of the current civil rights laws have "explore] the use of Nations & # 39; environmental laws to protect the rights of the poor" (48 )
V recognition, commitment and enforcement of appropriate :. Montreal Protocol as a model for solidarity key methods to establish binding international law is recognition of a duty or a right, an obligation to protect them, and the implementation of effective strategies. Montreal Protocol on Substances that Deplete the Ozone Layer is "important precedent in international management global environmental harms." (49) It serves as a model for many other environmental issues that require decision-making in the face of scientific uncertainty, global non-consensus and harm the high-avoidance costs. It was the first international "safeguards" treaty to tackle global environmental concern when not even a "measurable signs of environmental damage have been." (50) While ozone depletion by a chlorine (CFCs) and other ozone-depleting substances (ODSs), and the associated harms of overexposure to the harmful ultraviolet rays, had been suspected by scientists in the 1970s, it was not until 1985 and the Vienna Convention on protection of the ozone layer that international action was taken to deal with the problem.
Vienna Convention for the Protection of the Ozone Layer At the time of the Vienna Convention, the US represented over 50% of global consumption of CFCs in the $ 3 billion market for aerosol propellants only. Overall, CFC products representing $ 20 billion market and about a quarter of a million jobs in America alone. (51) Clean Air Amendments of 1977 and 1978 EPA ban on all "non-essential" uses of CFCs in aerosol propellants was soon followed internationally with similar bans Sweden, Canada and Norway. (52) These measures were a direct response to consumer pressure and demands of the market for newly environmentally conscious consumers. (53) Incentives were also provided to developing countries so that they could "ramp up" at reasonable levels decrease. (54)
Creative validation incentives included requiring only 11 of the top two-thirds of the CFC producing countries to ratify the treaty and bring value. (55) As a result of such flexibility, innovation, solidarity and cooperation, the Montreal Protocol has been hailed as a major success in international diplomacy and international environmental law. Today, nearly every nation in the world is a party (over 175 countries).
London adaptations and changes in 1990 In 1990, the scientific confirmation of global warming and depletion of the ozone layer led to the London amendments and changes. Again, US companies such as Dupont, IBM and Motorola responded to the sharp negative media attention and promised to stop all production by 2000.
default methods were made even more user-friendly and no penalty for non-compliance was initiated against a country that was failing to achieve quota in good faith. Technology transfer was done in a "fair and reasonable manner", with developed countries taking the lead in helping developing countries achieve compliance. (56) The US filed "ozone depletion taxes" which did much more comprehensive compliance, as well as to promote research on CFC alternatives. (57) To emphasize the high enforcement mechanisms employed, believes that by early 1998 the US Justice Department had prosecuted 62 individuals and 7 companies for illegally smuggling into liquid CFC black market. Despite international crackdown by the FBI, EPA, CIA and Interpol international police effort Operation Breeze, 5 to 10 thousand tons annually smuggled into Miami alone, second only to cocaine smuggling. (58) 1992 Copenhagen Amendments required each Member State (practically the whole world) to start "procedures and institutional mechanisms" to determine non-compliance and enforcement. (59)
VI. Conclusion: Critical weakness of the current system and the legal consequences of the right to a healthy environment AS basic human
The critical weaknesses in current systems are self-serving statements of non-compliance of States, the lack of effective implementation of the system, political constraints such as State sovereignty and "scope", and the lack of universal consensus on fundamental human rights concepts and their implementation. As long as Member States can ignore the everyday violation of human rights (irregular example of torture, occasional "disappearances") and avoid the Directives of Human Rights judgments, there can be no effective system of enforcement of international human rights agreements. Currently, unless a State commits such outrageous acts on a mass scale that affects global peace, such as in Yugoslavia and Rwanda, it can often find its obligations under international human rights treaties.
There are several international agreements that flowed universal jurisdiction for violations of any State in the world. All CIL, however, is inherently prosecutable under universal jurisdiction. "Crimes against humanity" (such as war crimes, genocide and State-supported torture) are generally held to be the universal jurisdiction, usually in the International Court of Justice, the ad hoc war crime court, and the new International Criminal Court.
Although interpretive gaps exist, it is not inconceivable that the right to a healthy environment can be extrapolated from existing international environmental treaties and CIL. The Treaty level, protection of the environment seems to be very important for the international community. At the level of county, there is much evidence that the right to a healthy environment is now internationally protected right, at least as far as trans-boundary pollution is concerned. In any case, it seems to be generally held that it should protect that right. The impression is that there is a clear consensus in this regard. "Soft law" over time will CIL.
The UN Environment and Development, the Earth Charter in 1987. It has not yet been fully implemented globally. broad themes are respect and concern for the environment, ecological integrity, social and economic justice and democracy, violence and peace. (60) argument can make it now, the environment has reached the threshold of customary international law. If nations choose to leave to recognize the right to a healthy environment as Jus cogens human rights will depend on the near universal consensus and political will of most nations of the world. Until then, as long as life continues to be destroyed by "human rights ratifying" nations, how much enforcement will be employed against breaking environmental laws when the right to a healthy environment is not accepted as a basic human remains to be seen. It will take the cooperation of all nations to ensure that this will not derogable, unalienable rights and recognize it as essential to the right to life.
1. Restatement (Third) of Foreign Relations Law of the United States, § 102 cmt. K (1987).
Items can also be found in the Vienna Convention, Article 53
2. For example, the right to life, to be free from torture, genocide and murder.
3. R (3d) FRLUS § 102 (l) (a) and CMT. h.
4. Id., § 702 (emphasis mine).
5. Mark W. Janis, Kynning á alþjóðalögum 6 (3d. Ed, Aspen Law & Business 1999).
6. R3dFRLUS § 102 (2).
7. Janis, supra.
8. David Hunter, et al., International Environmental Law og stefnu, bls. 306 (2d. Ed., Foundation Press 2002).
9. Paul Szasz, International Norm Making, in Edith Brown Weiss, Ed., ENVIRONMENTAL CHANGE IN INTERNATIONAL LAW (1995), as quoted in Id, p. 307.
10. Id.
11. Id.
12. Id.
13. R3dFRLUS § 102 (l) (c), as presented in Donoho, supra.
14. Supra, R3dFRLUS §102 (4).
15. Shabtai Rosenne, Practice and Methods of International Law 69 (1984), as quoted in Hunter, Id, p. 317.
16. Hunter, supra, p. 316 (Foundation Press 2002).
17. Id, p. 316.
18. Janis, supra, p. 29.
19. Id, p. 312.
20. Jonathan Charney, Universal International Law, 87 Am.J.Int'l.L. 529, at 543-48 (1993), as quoted in Hunter, supra, p. 322.
21. Id.
22. Gunther Handl, The Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development, 92 Am.J.Int'l.L. 642, at 660-62 (1998), as quoted in Hunter, supra, p. 324.
23. Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 Ind. J. Global Legal Stud. 105, 110-119 (1995), as quoted in Hunter, Id.
24. Id.
25. Id, p. 659.
26. Amedeo Postiglione, The Global Environmental Crisis: The Need for and International Court of the Environment, ICEF INTERNATIONAL REPORT at 33-36 (1996), quoted in Hunter, supra, p. 495.
27. Id., p. 496.
28. Id.
29. Id, p. 1298.
30. Id, p. 1299.
31. L. Henkin, "The Human Rights Idea", The Age of Rights (reprinted in Henkin, et al., Human Rights, 1999), as presented in Donoho, supra, p. 14-16.
32. Id.
33. Id.
34. The Right to Life, p. 310 (The Hague, 1983), quoted in Hunter, supra, p. 1297.
35. Hunter, supra, p. 341.
36. Id, p. 1299.
37. Id, p. 1294.
38. Id, p. 1295.
39. Black's Law Dictionary, p. 864. (West 1999).
40. Hunter, supra, p. 339-341.
41. Id, footnotes 1 through 6, pp. 341-342.
42. Id, pp. 317-318.
43. Id, p. 345.
44. Id, p. 342.
45. Id, p. 315.
46. Id, p. 344.
47. In particular, see pages 35, 38, 159, 162, 177-199 and 221 (Scribner 1997).
48. New York Law Journal, January 1993, Friday, ENVIRONMENTAL LAW, p. 3. See also, DISCUSSION: REFLECTIONS ON ENVIRONMENTAL JUSTICE, 65 Alb. L. Rev. 357, 2001.
49. Hunter, supra, p. 526.
50. Id, p. 527, quoting Richard Benedick, Ozone Diplomacy 2 (1998)
51. Id, p. 532.
52. Id, p. 535.
53. Id, p. 542.
54. Id, p. 545.
55. Id.
56. Id, p. 550-54.
57. Id, p. 562.
58. Id, p. 559.
59. Id, p. 566-67.
60. Roland Huber, International Environmental Law Seminar: Human Rights and the Environment, p. 24, in Donoho, Douglas L., INTERNATIONAL HUMAN RIGHTS (printed by the Shepard Brad Law Center, Nova Southeastern University, 2002).