International law and the right to a healthy environment as a Jus Cogens human right

International law and the right to a healthy environment as a Jus Cogens human right


So far, traditional international law does not consider human rights to a clean and healthy environment to be a human rights law of the law. Jus cogens refers to preventive legal principles and standards binding on all international states, regardless of their consent. They are non-exempt in the sense that states can not make a reservation to a treaty or make national or international laws that are contrary to an international agreement that they have ratified and thereby they are a party. They surpass and annull international agreements and other international laws in violation of them [and are] changed only by a later standard of the same nature. Thus they are the axiomatic and universally accepted legal norms that bind all nations under the law of Genty (the Law of Nations). For example, some United Nations provisions and conventions against slavery or torture are considered by international law, which can not be brought by parties to any international convention.

While the international justice system has been developed to embrace and even codify basic, non-exempt human rights, the development of environmental legislation has not gone so far. While the former has found a place at the highest level of universally recognized legal rights, the latter has only recently and overly resisted, achieved a modest recognition as a legally regulated activity in the field of economic and sustainable development.

The International Legal Community recognizes the same sources of international law as the US legal system. The three sources of international law are defined and defined in U.S. External Relations Legislation (Third Part) (R3dFRLUS), Section 102. The first source is customary international law (CIL), defined as the general and consistent practice of states followed by a legal obligation (opinie juris sive necessitatus), rather than moral obligation. Furthermore, CIL is broken when a state, like a state policy issue, exercises, encourages or condones (a) genocide, (b) slavery (c) the murder or disappearance of individuals, (d)) torture or other cruel, inhuman or degrading treatment or (g) a consistent pattern of serious violations of internationally recognized human rights. To what extent such human rights need to be recognized internationally, it is not clear, but a majority of the nations of the world must certainly recognize such rights before a consistent pattern of serious violations causes CIL to violate each other. CIL is analogous to the trading process or the use of trade in the domestic commercial justice system.

Evidence of CIL includes constitutional, legislative and executive releases of states, proclamations, judicial decisions, arbitrations, writings of specialists on international law, international agreements and resolutions and recommendations of international conferences and organizations. It follows that such evidence is sufficient for internationally recognized human rights to be protected under universally recognized international law. CIL can thus be created through the general dissemination of legal recognition (official jurisprudence) and the actions of the states on exactly what constitutes internationally recognized human rights.

The next level of binding international law is international agreement (treaty) or conventional international law. Just as Jus Cogens rights and laws and CIL are primary and universally binding legal regulations, international treaties constitute binding international law for the party members who have ratified this agreement. In the same way as some states' domestic constitutional laws explain the fundamental human rights of each citizen, international treaties create binding laws on the rights stated in it, according to the customary international law gentium principle of pacta sunt servanda (the agreements are to be respected). The treaties are, in turn, internalized by the domestic legal system as a legal issue. Thus, U.N Charter's provision against the use of force, for example, binding international law for all states, and it is, in turn, binding law in, for example, the United States and the citizens. The treaties are analogous to agreements in the domestic legal system.

Finally, international law will also be derived from universal general principles of law common to the world's largest legal system. These general principles of law are legal principles as such, not by international law in themselves. While many consider these general principles to be a secondary source of international law that can be invoked as complementary rules. If appropriate, some consider them on the basis of formal equality with the two positivistic elements in customs and treaties.

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