24 June 2009

conflict of rights

Both the right to development and the right to environment are basic human rights ensured by the United Nations Charter of Human Rights. Traditional international law does not consider that rights to a clean and healthy environment to be a jus cogens human right.

Jus cogens
(compelling law) refers to pre-emptory legal principles and norms that are binding on all international States, regardless of their consent. They are non-derogable in the sense that States cannot make a reservation to a treaty or make domestic or international laws that are in conflict with any international agreement that they have ratified and thus to which they are a party. They are the axiomatic and universally accepted legal norms that bind all nations under jus gentium (law of nations).

While the international legal system has evolved to embrace and even codify basic, non-derogable human rights, the evolution of environmental legal regimes have not advanced as far. While the former have found a place at the highest level of universally recognized legal rights, the latter have only recently and over much opposition, reached a modest level of recognition as a legally regulated activity within the economics and politics of sustainable development.

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. Unlike for human rights and international crimes, there is no general environmental rights court in existence today. The human right to environment must have at an international organ of protection as it is not the right of the State but the right of individuals and cannot be effectively protected by the International Court of Justice (ICJ).

Domestic remedies would have to be pursued first, of course, but standing would be granted to NGOs, individuals, and States when such remedies proved. 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.

The right to development is a composite right to a process of development; it is not just an 'umbrella' right, or the sum of a set of rights. The integrity of these rights implies that if any one of them is violated, the whole composite right to development is also violated. The independent expert describes this in terms of a 'vector' of human rights composed of various elements that represent the various economic, social and cultural rights as well as the civil and political rights. The realization of the right to development requires an improvement of this vector, such that there is improvement of some, or at least one, of those rights without violating any other.

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