I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
Currently, traditional international law doesn't consider human environmental rights to a clean and healthy environment to become a jus cogens human right. Jus cogens ("compelling law") refers to preemptory legal principles and norms which are binding on all international States, regardless of these consent. They're non-derogable in the sense that States cannot create a reservation to a treaty or make domestic or international laws which are in conflict with any international agreement they've ratified and thus to which they are a party. They "prevail over and invalidate international agreements and other rules of international law in conflict with them... [and are] susceptible to modification only by a future norm... having the same character." (1) Thus, they are the axiomatic and universally accepted legal norms that bind all nations under jus gentium (law of nations). For example, some U.N. Charter provisions and conventions against slavery or torture are considered jus cogens rules of international law which are nonderogable by parties to any international convention.
As the international legal system has evolved to embrace and even codify basic, non-derogable human rights (2), the evolution of environmental legal regimes haven't advanced as far. As the former have discovered a spot at the best degree of universally recognized legal rights, the latter have only recently and over much opposition, reached a moderate degree of recognition as a legally regulated activity within the economics and politics of sustainable development.
1. The international legal community recognizes the same resources of international law as does the United States' legal system. The three resources of international law are stated and defined in the Restatement (Third) of the Foreign Relations Law of the United States (R3dFRLUS), Section 102. The very first source is Customary International Law (CIL), defined as the "general and consistent practice of states followed out of a feeling of legal obligation" (3) (opinio juris sive necessitatus), rather than out of moral obligation legal. Furthermore, CIL is violated each time a State, "as a matter of state policy,... practices, encourages or condones (a) genocide, (b) slavery... (c) the murder or causing the disappearance of people, (d) torture or other cruel, inhuman or degrading treatment... or (g) a consistent pattern of gross violations of internationally recognized human rights." (4) From what extent such human rights have to be "internationally recognized" is not yet determined, but surely a majority of the world's nations must recognize such rights before a "consistent pattern of gross violations" results in a violation of CIL. CIL is analogous to "span of dealing" or "usage of trade" in the domestic commercial legal system.
Proof CIL includes "constitutional, legislative, and executive promulgations of states, proclamations, judicial decisions, arbitral awards, writings of specialists on international law, international agreements, and resolutions and recommendations of international conferences and organizations." (5) It follows that such evidence is sufficient to produce "internationally recognized human rights" protected under universally recognized international law. Thus, CIL could be produced by the typical proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes "internationally recognized human rights."
2. The following degree of binding international law is that of international agreements (treaties), or Conventional International Law. In the same way jus cogens rights and rules of law, in addition to CIL, are primary and universally binding legal precepts, so do international treaties form binding international law for the Party Members that have ratified that treaty. The exact same way that some States' domestic constitutional law declares the basic human rights of each State's citizens, so do international treaties create binding law about the rights delineated therein, based on the customary international jus gentium principle of pacta sunt servanda (agreements should be respected). Treaties are in turn internalized by the domestic legal system as a matter of law. Thus, like, the U.N Charter's provision against the use of force is binding international law on all States and it, in turn, is binding law in the United States, like, and on its citizens. (6) Treaties are analogous to "contracts" in the domestic legal system.
Proof Conventional International Law includes treaties, of course, in addition to related material, interpreted under the usual canons of construction of relying on the text itself and the words' ordinary meanings. (7) Often, conventional law needs to be interpreted within the context of CIL. (8) As a practical matter, treaties tend to be modified by amendments, protocols and (usually technical) annexes. Mechanisms exist for "circumventing strict application of consent" by the party states. Generally, these mechanisms include "framework or umbrella conventions that merely state general obligations and establish the machinery for further norm-formulating devices... individual protocols establishing particular substantive obligations... [and] technical annexes." (9) Most of these new instruments "do no require ratification but enter into force in certain simplified way." (10) For example, they may require only signatures, or they enter into force for all original parties whenever a minimum quantity of States ratify the modification or unless the very least quantity of States object within a certain time frame, or goes into force for all except the ones that object. (11) Depending on the treaty itself, once basic consensus is reached, it is not required for all to consent to certain modifications for them to enter effect. "[I]n a feeling these are cases of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law may also be derived from universal General Principles of Law "common to the major legal systems of the world." (13) These "general principles of law" are principles of law as such, not of international law per se. While many consider these general principles to become a secondary supply of international law that "may be invoked as supplementary rules... where appropriate" (14), some consider them on an "footing of formal equality with the two positivist aspects of custom and treaty" ;.(15) Examples are the principles of res judicata, equity, justice, and estoppel. Frequently, these rules are inferred by "analogy to domestic law concerning rules of procedure, evidence and jurisdiction." (16) However, "while shared concepts of of internal law can be used as a fall-back, you will find sever limits because of the characteristic differences between international law and internal law." (17) Proof General Principles of Law includes "municipal laws, doctrine and judicial decisions." (18)
No comments:
Post a Comment