Guidelines For Choosing an Online Criminal Justice Program

It does not matter whether you are fresh out of high school, trying to look for a higher position within your present career, looking for a change in your career path or you simply wish to obtain a higher level of education in your life, You have plenty of education opportunities available to you to pursue your dreams and one of the best way to do this is through online learning. However, before you start head on with this type of education, you should know a little more about this type of opportunity. Comparing the pros and cons of online learning will let you observe that it is almost similar to those for most schools. Figuring out what will be the best for you based on your personal priorities and even circumstances should be the first thing in your mind. If you always prefer face-to-face contact with your instructors to further expand your educational experience, you might not want to go a larger school or university. In this case, online learning is not suited for you, as the most contact you have with instructors and classmates is through e-mail or discussion boards. On the other hand, this lack of interaction might be of more interest to you, if you are the type of student who might be wary of first impressions or biases in class. Of course, teachers, professors and instructors are also humans, just like the rest of the population in the world. Nobody is perfect, as the saying goes. We all have our own inherent flaw that causes us to unintentionally produce biases towards people within the first time of interacting with them. Physical interaction will be pretty limited in these kind of environment, therefore, most if not all of these kinds of behaviors is limited or will not exist. This will help persons with this kind of attitude to focus on studying than interacting with his peers. Thus, the flow on information will be sterile and it will not provide an impression of a boring lecture or a teacher you do not like.

Attending online schools or programs will provide flexibility for you. It will allow you to study at your own pace without any pressure, and at whatever time of the day you would prefer the most. You can have your own breaks whenever you need them, attend to other important chores or even commitments if need arises. It is something that traditional learning will not allow you based on its nature. However, it also has its own disadvantages. In online learning, you have to manage your own time so that you can get the most out of your online learning experience, you even have to budget a set amount of time each day or week in order to get everything done, and it will force yourself to stick to that schedule as day goes by. Moreover, there might be unwanted interruptions if you are trying to learn at home that might not exist in a traditional setting. If you would feel that it cannot be helped, then online schooling is not for you, because its flexibility might be more of a disadvantage rather than an advantage.

Getting back to the topic, comparing or choosing the right online colleges or programs that you will be attending to is way different than choosing traditional colleges. When looking for traditional colleges, it will help to visit the campus that you are eyeing and take a tour or even talk to its students. It will help you in deciding which college to attend. Such is not a case when looking for prospective online colleges. However, researching and asking questions online will help you evaluate and decide which online school to attend to. What is your goal for studying? What will be your goal once you graduate? What type of online school you are looking for? What type of program or course are you planning to have? What are your learning needs? What type of schedule will suit you? These are the important questions you should consider when looking for the perfect online school and program for you. It will be the key to help you out in researching and getting information online.

As for choosing an Online Criminal Justice School that will best suit your needs and your goals in life, it would be best to start with choosing the appropriate online school, choosing the right distance learning program comes next. One of the basic things you should consider to help you save your time and energy learning about each school is to make sure that the colleges you are considering are accredited by one of the six regional accreditation agencies recognized by the US Department of Education of CHEA. This way, it will not waste your time considering unaccredited institutions where you might just waste your time and money and not even receive a real college degree. Once you have narrowed your searching pool down to all the legitimate schools to be considered, you need to establish your own set of criteria to find out what are the important things that you are looking for in a school. You should consider its affordability if you are stick on setting a budget, and if the school has the program in the field that you want to go to. If it meets your criteria, you should also consider if the school has the classes with complete flexibility, or if you have to participate in online discussions at some point of time. It is very important if the online criminal justice school that you are considering will fit your personal needs and you have to make sure that you will base on your own criteria to get the most out of the school that you are considering. You may want to consider or evaluate a school by its instructors and their qualifications. When you have a good list of these online criminal justice schools, doing your background research will be of great importance. It will make all the difference. Try going to message boards, websites, and even blogs about the schools on your list. Even though the information that you will get might be somewhat biased to promote their school, you will at least get a better idea of what their school programs are like, and what others state to be the schools’ pros and cons.

Once you decided which online criminal school you are going to attend to, the next thing would be choosing the program that will not only fit your needs, but the one that will most likely be your personal goal. You have to make sure that you will not only need that type of program, you should also consider whether you really want it to be your stepping stone in your career path. Online degrees in criminal justice have a good number of programs and specialties to choose from such as law enforcement, crime scene investigation, corrections and forensic psychology, security, and more. First will be Computer Security, and under its set of programs will include Organizational Security, Computer Forensics, Cyber Crime, Cyber Security, and more. For Corrections, there will be Corrections for women and juvenile corrections. For Forensics, there are Forensic Nursing, Forensic Psychology, Computer Forensics and other programs related to its field. Justice and Security, For Private Security and Safety, there are programs like Private Security, Public Safety Administration, Disaster Preparedness and Crisis Management. Next will be the Law Enforcement, Policing & Investigation course, which includes Law Enforcement, Fraud Examination, Policing and Criminal Investigations under its wing. As for Homeland Security, there are Homeland Security program itself and Homeland Security Administration as well. For Criminal Justice in general, it includes Criminal Justice, Fraud Examination, Global Issues, Law, Justice Administration, Public Administration, and more. And as for Crime Scene, there are programs such as Crime Analysis and Crime Scene Investigation. You have to identify which program will be suited for your needs and your wants, and then identify the field that you want to specialized yourself with.

In terms of funding, online universities tend to be cheaper than their traditional counterparts. They are a lot of scholarships and funding for criminal justice programs, grants and loans are also available, and typically worth it! You are investing in your future!

While there are many learning opportunities available online that will help you in earning a certificate and increasing your skills, there are a good number of opportunities that can simply help you enrich your personal experience. Some only pursue online education for the joy of learning, some set it as their personal goal in life. There is no such thing called as limit if you want to enrich your life or if you want to pursue your education. Thus, whether you are pursuing a degree or a training certificate, or if you only want to gain personal enrichment, it does not take thousands of dollars or even hours out of your life. Do not even hesitate to take the first great step to getting a good education. Who knows, it might be your stepping stone to success!

People Who May Commit Obstruction Of Justice

Evidences and witnesses are very essential in a criminal case. It is in them that we can better comprehend two different perspectives narrated by two opposing sides. Well, that’s actually the beauty of criminal law. It is like a puzzle that needs to solve for the benefit of everyone. Yes, everyone deserves to see a clearer picture of what has already happened. Without the important facts and testimonies, a criminal case would just most likely become an endless series of unsolved mysteries. But what is it that hinders such mystery to total disclosure? One of which is an obstruction of justice.

Obstruction of justice is actually the crime of crippling the justice system to know the truth. How is this done anyway? Obstruction of justice is when one bends the truth through words in court, especially one that’s under oath. Obstruction of justice is when one cleans up an accident scene and hides evidences in order to not show the truth. Obstruction of justice is when one tries to protect someone (one who is most guilty of a particular offense) and keep him or her out of a specific scandal or issue. It has so many faces, and it’s done by just anyone. Who could these people be? That’s what you need to find out.

Court Men

Surprisingly, even the men in court are capable of doing this crime. As what stereotypical definitions tell us, men who work in court help people get the kind of justice they deserve. However, sometimes, when defines justice it becomes relative. It sometimes varies from one person to another, depending on one’s interest. Judges, prosecutors, lawyers are guilty of obstructing justice, especially if they do not give much value to honor and pride. However, if you have a criminal lawyer who is wise enough to notice these anomalies, true justice is on your side. It’s always good that you know the people you entrust your life with.

Witnesses

As mentioned earlier, obstruction of justice has different faces and all of them is finished by an invited witness to speak out loud in court. It is a form of manipulating a story where the best writer and the best actor win. A good criminal lawyer is able to prepare for such kind of ugly possibility. He or she does not only focus on the strategies your party can present in court, but also the delusional way of defense of the other narrators of the story. No, it isn’t about counteracting the bad with another bad doing. It’s letting the bad come out through a series of questions that outsmart the player. Let honesty slip through the mouths of a liar. It’s a matter of asking the right questions.

Anyone

Lastly, this crime commits by anyone. Twisting the truth and bending authenticity, is very easy to do, but accessibility is not always encouraged. There are limits that need to consider in criminal law and all kinds of law. All for the conquest of justice, let the unvarnished truth prevails.

‘Weightier’ Matters – Justice, Mercy and Faith

Woe to you, scribes and Pharisees, hypocrites! For you tithe mint, dill, and cummin, and have neglected the weightier matters of the law: justice and mercy and faith. It is these you ought to have practiced without neglecting the others.
~Matthew 23:23 (NRSV).

From this imperative negative Jesus is imploring us all to a faith-life that doesn’t get the wood lost for the trees.

There are so many dimensions of faith and theology that we’re all tempted to take our personal ‘bent’ on things and polarise onto quite focused areas of God – to the neglect of the bigger picture.

For instance, in this day and age – like any other – there are those who see God only mainly through prophecy or healing or tradition or the charismata (the list is endless) – they may even become experts at these; the detriment is the loss of a fuller faith, and certainly to an inclusive faith that holds the proceeding as ‘weightier’ than all the portents of theology put together.

The Weightier Commands

Justice

The first item I think of related to biblical justice (and for that matter, mercy too) is the injunction proclaimed in Micah 6:8:

“[God] has told you, O mortal, what is good;
and what does the LORD require of you
but to do justice, and to love kindness,
and to walk humbly with your God?” (NRSV)

Justice is one of the key tests of faith in any believer. Indeed, there are many proverbs also that indicate the amount someone ‘has’ God at heart by virtue, simply, of how justly they deal with others, and in context – particularly – with regard to self justice.

Mercy

Mercy, or more simply put, compassion, is the right identification with the suffering world in our midst. A person who’s merciful doesn’t skate away from the ugly truth; they own it. They see a messy world but it doesn’t turn them off.

They use this as motivational impetus to get in and get dirty, supporting the needy as much as they can.

Faith

Faith is manifest patience. We cannot get past that this is an exercise of practical discernment and the outworking of belief. To have faith means to trust, and accept, and be patient – these are all doing things.

We simply cannot please God without faith (Hebrews 11:6).

Summary

I don’t think Jesus was merely limiting his list of weightier commands to these (justice, mercy and faith). There are, of course, many others of equal rectitude.

It also needs to be said that God, who is totally impartial, does not take kindly to us prioritising commands. The moral commands are weighty in this context, but every command of God – as spiritually divined by what he asks of us, which is biblically-based, or as placed in God’s Word – must be obeyed with equal fervour.

Unlike the Pharisees in First Century life, we do not pick and choose how much energy we put into our obedience or what shape that takes.

© 2010 S. J. Wickham.

Is the Military Justice System Fair?

Convening Court Martial

The military does not have permanent trial courts. Therefore, courts martial are convened or assembled on an as needed basis by military commanders. The UCMJ details which commanders may convene a courts martial. The commander with power to convene a court martial is called the convening authority. The convening authority determines the type of court martial that the accused will face, and the convening authority selects the court members (the military jury) that will hear the case and determine a sentence.1

Independent Judges and Defense Lawyers

A modern improvement in the American military justice system is that the trial judiciary and defense lawyers function independently from the prosecution and the command. Military judges are required to remain fair and impartial when presiding over courts martial. Military defense lawyers have the same duties as their civilian counterparts. They owe the outmost loyalty toward their clients and are supposed to zealously advocate on their behalf.2

Unlawful Command Influence

A common concern with the military justice system is that senior personnel will influence military jurors, witnesses, and others involved in the military justice process. This is known as unlawful command influence (UCI). UCI is often referred to as the mortal enemy of military justice.3 UCI calls into question the validity of the military judicial process, demoralizes military members and their confidence in the system and their command, and reduces public confidence in the military.4

While instances of unlawful command influence seldom arise, the military justice system has rules in order to limit its cancerous effects.5

International Law And The Right To A Healthy Environment As A Jus Cogens Human Right

I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES

To date, traditional international law does not consider human environmental rights to a clean and healthy environment to be a jus cogens human right. Jus cogens (“compelling law”) refers to preemptory 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 “prevail over and invalidate international agreements and other rules of international law in conflict with them… [and are] subject to modification only by a subsequent 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 that are nonderogable by parties to any international convention.

While the international legal system has evolved to embrace and even codify basic, non-derogable human rights (2), 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.

1. The international legal community recognizes the same sources of international law as does the United States’ legal system. The three sources of international law are stated and defined in the Restatement (Third) of the Foreign Relations Law of the United States (R3dFRLUS), Section 102. The first source is Customary International Law (CIL), defined as the “general and consistent practice of states followed out of a sense of legal obligation” (3) (opinio 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 individuals, (d) torture or other cruel, inhuman or degrading treatment… or (g) a consistent pattern of gross violations of internationally recognized human rights.” (4) To what extent such human rights need to be “internationally recognized” is not clear, 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 “course of dealing” or “usage of trade” in the domestic commercial legal system.

Evidence of 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 make “internationally recognized human rights” protected under universally recognized international law. Thus, CIL can be created by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes “internationally recognized human rights.”

2. The next level of binding international law is that of international agreements (treaties), or Conventional International Law. Just as jus cogens rights and rules of law, as well as 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 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 regarding the rights delineated therein, according to the customary international jus gentium principle of pacta sunt servanda (agreements are to be respected). Treaties are in turn internalized by the domestic legal system as a matter of law. Thus, for example, 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, for example, and on its citizens. (6) Treaties are analogous to “contracts” in the domestic legal system.

Evidence of Conventional International Law includes treaties, of course, as well as related material, interpreted under the usual canons of construction of relying on the text itself and the words’ ordinary meanings. (7) Often, conventional law has to be interpreted within the context of CIL. (8) As a practical matter, treaties are often 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 some simplified way.” (10) For example, they may require only signatures, or they enter into force for all original parties when a minimum number of States ratify the modification or unless a minimum number of States object within a certain time frame, or goes into force for all except those that object. (11) Depending on the treaty itself, once basic consensus is reached, it is not necessary for all to consent to certain modifications for them to go into effect. “[I]n a sense these are instances of an IGO [(international governmental organization)] organ ‘legislating’ directly for [S]tates.” (12)

3. Finally, rules of international law are also 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 be a secondary source 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 elements 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, there are sever limits because of the characteristic differences between international law and internal law.” (17) Evidence of General Principles of Law includes “municipal laws, doctrine and judicial decisions.” (18)

Treaty provisions and their inherent obligations can create binding CIL if they are “of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.” (19) A basic premise of this article is that the “relatively exclusive ways (of lawmaking) of the past are not suitable for contemporary circumstances.” (20) Jonathan Charney maintains that today’s CIL is more and more being created by consensual multilateral forums, as opposed to State practice and opinio juris, and that “[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.

The third and current generation of human rights has emerged from the Eco-Peace-Feminist Movement. These include the Right to Development, the Right to A Safe Environment and the Right to Peace. In essence, this third generation of rights addresses the problem of poverty as a social (and hence legally redressable) ill that lies at the core of environmental problems and violations. The “environmental justice” movement considers cases that demonstrate that environmental pollution is disproportionately prevalent in minority communities, whether at a local or international level. Authors John Cronin & Robert F. Kennedy, Jr., have explicitly entitled their study of environmental pollution along the Hudson River The Riverkeepers: Two Activists Fight to Reclaim Our Environment as a Basic Human Right. (47) This predominantly U.S. movement focuses on “environmental racism” as a means for seeking remedies or the disproportionate pollution of minority communities as violations of current civil rights legislation by “exploring] the use of the nations’ environmental laws to protect the rights of the poor.” (48)

V. RECOGNITION, COMMITMENT AND ENFORCEMENT OF A RIGHT: THE MONTREAL PROTOCOL AS A MODEL FOR CONSENSUS BUILDING The key mechanisms for establishing binding international law are recognition of an obligation or right, commitment to its protection, and effective enforcement methods. The Montreal Protocol on Substances that Deplete the Ozone Layer is the “most important precedent in international law for the management of global environmental harms.” (49) It serves as a model for many other environmental concerns that require decision-making in the face of scientific uncertainty, global non-consensus, and high harm-avoidance costs. It was the first international “precautionary” treaty to address a global environmental concern when not even “measurable evidence of environmental damage existed.” (50) Although ozone depletion by chloro-fluorocarbons (CFCs) and other ozone depleting substances (ODSs), and the attendant harms of overexposure to harmful ultraviolet radiation, had been suspected by scientists in the early 1970s, it was not until 1985 and the Vienna Convention for the Protection of the Ozone Layer that international action was taken to address the problem.

THE VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE LAYER At the time of the Vienna Convention, the U.S. represented over 50% of the global consumption of CFCs in a $3 billion market for aerosol propellants alone. Overall, CFC products represented a $20 billion market and about a quarter of a million jobs in America alone. (51) The Clean Air Amendments of 1977 and the 1978 EPA ban on all “non-essential” uses of CFC in aerosol propellants was quickly followed internationally by similar bans by Sweden, Canada and Norway. (52) These actions were a direct response to consumer pressure and market demands by newly environmentally-conscious consumers.(53) Incentives were also provided to the developing countries so that they could “ramp up” at reasonable levels of reductions. (54)

Creative ratification incentives included requiring only 11 of the top two-thirds of CFC producing countries to ratify and bring the treaty into force. (55) As a result of such flexibility, innovation, consensus and cooperation, the Montreal Protocol has been hailed as a major success in international diplomacy and international environmental law. Today almost every nation in the world is a member (over 175 States).

THE LONDON ADJUSTMENTS AND AMENDMENTS OF 1990 By 1990 scientific confirmation of global warming and the depletion of the ozone layer led to the London Adjustments and Amendments. Again, U.S. companies such as Dupont, IBM and Motorola reacted to massive negative media attention and promised to halt complete production by 2000.

Non-compliance procedures were made even more user friendly and no sanction for non-compliance was initiated against a country that was failing to reach quotas while acting in good faith. Technology transfer was made in a “fair and favorable way”, with developed countries taking the lead in assisting developing countries reach compliance. (56) The U.S. instituted “ozone depletion taxes” which did much to get more comprehensive compliance, as well as promoting research into CFC alternatives. (57) To emphasize the vast enforcement mechanisms employed, consider that by early 1998 the U.S. Justice Department had prosecuted 62 individuals and 7 corporations for the illegal smuggling into the emergent CFC black markets. Despite an international crackdown by the FBI, EPA, CIA, and Interpol in the global police effort Operation Breeze, 5 to 10 thousand tons are smuggled annually into Miami alone, second only to cocaine smuggling. (58) In 1992 the Copenhagen Amendments required every State party (practically the whole world) to institute “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 A BASIC HUMAN RIGHT

The critical weaknesses of the existing system include self-serving pronouncements by non-complying States, lack of effective enforcement mechanisms, political limitations such as State sovereignty and the “margin of appreciation”, and the lack of universal consensus on basic human rights terminology and their enforcement. As long as States can ignore commonplace violations of human rights (sporadic instances of torture, occasional “disappearances”) and shun the edicts of human rights judicial decisions, there can be no effective system of international human rights enforcement. Currently, unless a State commits such outrageous acts on a mass scale that affects world peace, such as in Yugoslavia and Rwanda, it can often evade its responsibilities under international human rights treaties.

There are few international agreements that admit of universal jurisdiction for their violation by any State in the world. All CIL, however, is by its very nature prosecutable under universal jurisdiction. “Crimes against humanity” (e.g., War Crimes, genocide, and State-supported torture) are universally held to be under universal jurisdiction, typically in the International Court of Justice, ad hoc war crime tribunals, and the new International Criminal Court.

While interpretive gaps exist, it is not inconceivable that the right to a healthy environment can be extrapolated from current international environmental treaties and CIL. At the treaty level, the protection of the environment appears to be of paramount importance to the international community. At the level of CIL, there is much evidence that the right to a healthy environment is already an internationally protected right, at least as far as trans-boundary pollution is concerned. In any case, it seems to be universally held that it should be protected as a right. The impression is that there is an unmistakable consensus in this regard. “Soft law” over time becomes CIL.

The U.N. World Commission on Environment and Development released the Earth Charter in 1987. It has yet to be fully implemented on a global scale. Its broad themes include respect and care for the environment, ecological integrity, social and economic justice and democracy, nonviolence and peace. (60) The argument can be made that by now, protection of the environment has reached the threshold of Customary International Law. Whether the nations of the world choose to thereafter recognize the right to a healthy environment as a jus cogens human right will depend on the near universal consensus and political will of most of the nations of the world. Until then, as long as human life continues to be destroyed by “human rights ratifying” nations, how much enforcement will be employed against violators of environmental laws when the right to a healthy environment is not upheld as a basic human right remains to be seen. It will take the cooperation of all nations to ensure that this becomes a non-derogable, unalienable right and recognizing it as essential to the Right to Life.

1. Restatement (Third) of the Foreign Relations Law of the United States, § 102 cmt. k (1987).
The elements 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 (my emphasis).
5. Mark W. Janis, An Introduction to International Law 6 (3d. ed, Aspen Law & Business 1999).
6. R3dFRLUS § 102(2).
7. Janis, supra.
8. David Hunter, et al., International Environmental Law and Policy, p. 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).