دانلود رایگان ترجمه مقاله حقوق بشر بین المللی در یک افق محیطی (نشریه Oxford Journals 2010)

حقوق بشر بین المللی در یک افق محیطی

International Human Rights in an Environmental Horizon

Abstract

This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing ‘individualistic’ perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.

1 Introduction

No title could have better captured the essence of the contribution of Antonio (‘Nino’) Cassese to international law scholarship than ‘[t]he human dimension of international law: progress or stagnation?’. Though his work is firmly anchored in the Italian tradition of legal positivism, he has always striven to overcome the purely inter-state structure of international law and to achieve a progressive reform of the system based on the centrality of human beings and on control of brute force.1 In this context, I would like to highlight two salient aspects of Nino’s personality and of his approach to international law. The first is his keen interest in the past and his attention to the history of ideas which have influenced the origin and evolution of international law. His work never relies only on the sterile materials which constitute tools of legal research; he always reminds us whence we came and how historical events have shaped contemporary norms and institutions of international law. This is especially evident in his book Il diritto internazionale nel mondo contemporaneo, 2 where analytical rigour is accompanied by a refreshing historical approach to the reconstruction of the dynamic evolution of international law. This is rather unusual in Italian international law scholarship.

The second aspect peculiar to Nino’s work is his projection toward the future and his constant interest in the potential of international law for self-renewal and its instantiation of the interests of humanity rather than raison d’état. In this respect, he has somehow broken the positive law taboo according to which legal scholars can be only detached observers of the law and of its change by the recognized authority, the state. He has not simply ‘looked at’ the changing structure of the law as a spectator to a story told by an external narrator. He has added his voice to the narrative of the progressive development of the law. This is particularly evident with respect to his role as an international judge, his contribution to the development of international criminal law, and the impact this field is having on general international law, including the law of state responsibility.

It is with these two distinct aspects of Nino’s personality in mind that I can give my small contribution to the aspect of this symposium on ‘progress or stagnation’. I will focus on one problematic aspect of the contemporary development of international law, that is whether our established conception of human rights – as rights of the individual – is suitable to face the challenge posed to human rights by environmental degradation, which affects us as a society, not merely as individuals.