How to Deceive the Very Elect – Eschatological Gobbledygook

Between Hollywood, the new craze for Christian novels (fiction) and the old series of “Left Behind” flicks the average person, Christian or not, has been shown a picture of last day’s figures and personalities that is anything but accurate.

Pictures of the antichrist and the false prophet, the major players in the last days, range from dark robed characters leading an all new religion to a leader with 666 tattooed somewhere on his head. Not even close!

When Christ spoke of the last days deceivers he clearly inferred that they would be almost perfect in their deception. This eliminates the idea and the very possibility that they are fringy, off the wall, spooky or obviously spurious in appearance, behavior or rhetoric. Christ said “For there shall arise false Christs, and false prophets, and shall show great signs and wonders; insomuch that, if it were possible, they shall deceive the very elect.” (Mt. 24:24)

In spite of a recent Barna report that indicates that as much as sixty percent of evangelicals and other Christians from Pentecostal to Catholic have voted for liberal policies and liberal politicians that does not mean the “elect” have been deceived. What it does mean is that not everyone who talks the talk; walks the walk. They were no doubt not among the “elect” to begin with. As to the question of “how do you deceive the very elect, you don’t, it is not possible!

It must be noted that there are major and minor figures in the last day’s panorama and Christ wanted us to notice all of them even if we could not see the key figures until the very last. Both the Apostle Paul and John warned that the spirit of antichrist was already at work in the world and would produce many antichrists. Spotting someone who labors under the spirit of antichrist is as easy as observing what fruit or result their labors produce. “Wherefore by their fruits ye shall know them.” (Mt 7:20) No rocket science needed here.

What is the fruit of liberalism in politics, what is the fruit of Hollywood, what is the fruit of pop culture, what is the fruit of pornography, what is the fruit of secular education, what is the fruit of violent games and media, the new penchant for gambling and the new morality? I will not insult anyone’s intelligence or their spirituality by adding the obvious answer here.

In politics secular liberalism produces the fruit of abortion, cloning, euthanasia, Godless education, legalized gambling, gay marriage and a list of other things too numerous to mention here. All of these things appeal to the flesh on various levels but all have to do with either fostering personal irresponsibility or fleshly indulgence. Gee, that’s some great fruit.

Here’s the rub. Those espousing these things make them look great and they themselves may look pretty great too. Deceivers are not clad with red robes, pitchforks and horns but most likely they will be well dressed and completely normal and attractive people. Enter the politicians.

The antichrist will no doubt be a political, military figure who will look as normal as apple pie and come up through channels of normalcy and proper education. Oddly, according to the Prophet Daniel, he will be an orator of unparalleled ability and will also harbor an unquenchable hatred for God. He will be able to suppress showing the hatred to the public for a while but as the world plunges toward Armageddon he won’t even try to hide it.

It would be easy to conclude that this “highly educated” generation would not allow such a person an inch of ground. Think again. It is modern secular education that actually helps to pave the way for his entrance and subsequent success. Progressive education has been working on the removal of all accountability to God feverously for the last sixty or so years. It has successfully knocked out both ends of the accountability question namely where do we come from and where are we going?

Modern minds think we come from apes and we are going to the stars to populate thousands of planets. In one generation secular education has managed to convince our children that they have no creator except time, a lightning bolt and a one cell amoeba and they are just about ready to carry themselves into the celestial bodies for ever. Whoops, there goes God!

Let’s not confuse our modern geniuses with facts. Like the fact that the entire theory of evolution is based on “prior philosophic postulation” which mocks the very definition of empirical science which is “repeatable and observable experimentation for the gathering of data,” not possible when speculating about what took place millions of years ago. We would need a world class team of physicists to explain to the average high school student (if they can get beyond reading 101) the problem of interstellar space travel is in a word “time” not space.

All of the aforementioned is a more classical way of saying something else found in the scriptures. Although the biblical explanation is far more simple it is yet much more profound. It relates to the antichrist and the very nature and power by which he manages to hoodwink the whole world by a series of very subtle deceptions. Top politicians, world class scientists and false prophets of every description are included in this single warning. “Even him, whose coming is after the working of Satan with all power and signs and lying wonders, And with all deceivableness of unrighteousness in them that perish; because they received not the love of the truth, that they might be saved. And for this cause God shall send them strong delusion, that they should believe a lie:” (2th 2: 9-11)

Strong delusion implies that they will not be seen as abhorrent creepy religious quacks or fringy politicians with little or no standing in the minds of most people. They will indeed be the greatest leaders and orators of the age but with a message of a whole new life but sadly in the end it leads to death.

It would seem to some that these warnings are veiled inferences to the results of recent political events in the United States. To those who are spiritually cognitive I need not explain anything but conversely to the unbelieving all the explanation in the world would not suffice. I can use the simplest adage to correctly answer the question if I must, “if the shoe fits, wear it.”

I cannot express the gratitude I feel for those who have encouraged me over the years of this prophetic ministry. I can also say openly to the naysayers that I am not merely a grumpy kind of guy who just can’t seem to see anything hopeful in the present world. I not only see hope but my eyes are on the only real hope of this or any age before it. That hope is the Lord Jesus Christ. His finished work on the cross and his promise of salvation to all who will receive it will shine through even the darkest days of the rule of antichrist. The world offers no such hope nor can it ever.

I look forward to the day when I can throw off this mantle that requires me to address a world of unbelievers with a message that they doubt or disdain. I will do that when the Creator God plants the feet of his only begotten Son firmly on the Mount of Olives from where he first ascended back to his Father after his resurrection. That’s my day, what’s yours?

The End of American Hegemony

Many political scientists in this decade are wrestling with the notion that the United States’ hegemonic power is in steep decline or completely stagnate altogether. With the current status of the nation and the many problems that have stemmed from the irresponsibility of its’ actions the strength of the United States hegemony is undoubtedly dwindling. We can make various observations ranging from all different aspects that show the United States’ hegemonic force is beyond repair and will not be resurrected. Although the desperate struggles by the U.S. government to demonstrate their unwillingness to accept the fact are admirable and at some points not without good intention, the American hegemonic power is out dated and broken.

In the early 1950’s the United States rose to power as the elite world hegemonic power. After World War II, major economic powers had to cut deep into their own pockets in order to pay for their war retributions and re-build devastated countries and economies. England, France, Germany and Japan were all on the brink of complete destruction at this moment in time, and the United States used this to their advantage. Even though the U.S. participated in the war itself, the extent of the battles never reached the mainland, which kept the nation’s infrastructure in tact. This unbelievable power continued on from the 1950’s until the later part of the 1970’s. In this era, The Bretton Woods agreement made the USD the center of the Global Economy and was made the by default the official internationally traded currency. The USD was the only currency that could be created at great magnitude and keep the faith of foreign investors due to it’s worth and versatility in the world market (Krasner 187). The top ten banks in the world were American owned making the U.S. the largest world creditor. The U.S. was the number one destination for foreign direct investment and during these two decades the U.S. was also able to sustain the highest level of growth in its’ economy (Bartilow Lecture). These features made the U.S. the undisputed hegemonic state in the world at that moment in time. Almost every financial decision made in regards to international trade came through the United States. The U.S. also set up various regimes: the GATT (The General Agreement on Tariffs and Trade, now the WTO), The International Monetary Fund (IMF), and a slew of other international regimes affiliated with the United Nations (Lake 121).

As the effects of World War II started to wear of the United States slowly lost the drastic gap in power they enjoyed. From the 1960’s to the mid 1970’s, countries such as Japan, The former Soviet Union and what was then West Germany were increasing their military and financial capabilities at a higher rate than the United States. This causes the first quandary when we explore the United States’ hegemonic decline, because the hegemon must be very powerful in relation to other states in order to retain its’ power (Krasner 185). The status of U.S. global power since the early 1980’s has been in a steady downturn. Currently the US dollar is relatively weak when compared to the currencies of major global trading partners. This makes it harder to make a credible argument as to why the USD should remain as the default trading currency when others have a far better argument for taking the title such as the EU’s Euro (EUR) or the Japanese Yen (¥). The U.S. has now gone from being the world’s largest creditor to the world’s largest debtor. This has caused one of the most significant reductions in American power. It is very difficult to sustain hegemony when you are obligated to other nations due to borrowed money rather than having other nations obligated to you. This significantly limits your options when concerning implementation of world policy that would give you certain advantages. Since 1986 the American BoP has been highly uneven when the U.S. began importing more than exporting which represented the commencement of the massive deficit that the U.S. government is dealing with now (Krasner 189). Most recently the U.S. has been plagued with an overwhelming amount of re-occurring crisis’ that have put economic growth in a slump, and the vast problems stemming from the current banking collapse. Certainly it would seem that the United States is lagging behind in financial performance due to poor construction of past policies that made the US the power that it was economically.

The extent of these problems does not halt at the outstanding economic crisis alone. The U.S. is losing major advantages in education, infrastructure, innovation and healthcare. For most of the 19th and 20th centuries the U.S. was dissertating far more students with PhD’s than any other nation could come close to. Now the U.S. lead in that area of interest has been significantly narrowed and with the current trends in the U.S. education system, soon the top spot in PhD production will no longer exist in favor of the U.S. This could be a direct result due to the fact that the U.S. is no longer the home of the world’s most advanced and renown facilities for higher education, without a doubt lagging behind European and Asian universities. With regard to secondary education the U.S. is experiencing record numbers of youth that are illiterate and/or who are dropping out of school altogether. European and Asian systems for educating their young are now proving to be far superior from the under funded and out-dated ways of the American system (Bartilow Lecture).
In means of military, innovation and healthcare, there are problems that continue to rapidly spiral out of control as well. While the U.S. military might is still one of a kind, the events of 9-11 proved that there are still ways to strike inside the country’s boarders, later the American response to those acts made the hegemon look weaker than ever. Powerful foreign nations are rapidly improving military capabilities and are able to sustain a smaller and more cost efficient force than that of the larger, stretched out U.S. military. More than 45 million Americans remain with out healthcare. Unhealthy, untreated Americans cannot work since they are at home sick or injured, and not to forget that the U.S. is also home to one of the most unhealthy fast food diets in the world. These two separate problems don’t mix well in the long run, when most of the technological and medical innovation is being done else where around the globe, which will provide a serious financial burden when healthcare will soon be imported as well causing major problems for the current unhealthy American generation that will be yearning for medical treatment.

However we can learn from past hegemonic states, all of which, withered away with time just as the American one is currently in the process of doing. Great Britain was perhaps the last true hegemon before that of the United States. Back in 1890 the collapse of their empire had just began. David A. Lake’s research on the issue is work that should be greatly analyzed due to the illustrious similarities between the British recession in to retirement and the United States’ as well. For much of the 19th century Great Britain was dominating in the same fields as the U.S. did so in the 1950’s through the late 1970’s. Soon in the later 1800’s The United States and Germany moved to a protectionist system to plant their economic seeds and soon after were surpassing British industries and abilities. The industrial base of Great Britain crumbled and forced them to invest heavily in the service, shipping and insurance sectors of the economy just to break-even when concerning their balance of payment statistics. For the time being the British were able to carry on with the pound as the dominant world currency. The frail system was already on the thinnest of ice, when WWI confounded the weak British economy (Lake 122). At the time of Great Britain’s reign of power they also pursued operations to completely open up and liberalize the world economy. This did lead to substantial brief economic abundance but eventually the struggles of remaining a strong enough power to be considered an absolute hegemon wore off. Hegemonic powers are only sustainable during periods of constant economic growth. When growth is no longer the complete and utter status of the hegemony’s economic functionality the power ceases to be consistent. We see this to be the case with Great Britain, as other world powers emerged and caught up in terms of economic status and influence, British power that was exerted was much more explicit and coercive, just like it was during the American hegemonic era under President Nixon (Lake 121). It is safe to say that the U.S. is headed down the same path that will eventually end up being the ultimate de-throning of the American empire and it’s hegemonic capabilities. If you think back to all the complications that the United States is experiencing in this very moment concerning obvious financial difficulties and others in the areas of education, technological innovation and healthcare respectively. Other nations have clearly started their own catch up phase and are impeding on American power as we speak. The irony between the situations leading up to the collapse of the British hegemonic state and the current burdens that are being placed upon a contemptuous American hegemon are too similar for coincidence. It took the disaster of WWI to finally destabilize the British hegemon and the United States is one major crisis away from experiencing the same fate (Bartilow Lecture).

Since the loss of British power it is noticed that Great Britain was never able to rise again to re-capture the hegemonic position. This may go on to show us, what the American empire will look like fifty years from now. The U.S. will have to become much more of a team player in the new world economy after realizing the impossible responsibilities as the hegemonic power. As the international economic system has continued to transform it does not appear that another hegemonic state will rise anyway. The playing field is equal on almost all fronts between the world’s superpowers and with terms of transportation and advanced communication there is hardly any information that is secret as far as technological innovation is concerned. As for the United States, the elements that sprung the U.S. into hegemonic power are far outdated and literally impossible to re-create with the absence of a WWIII and due to the ever more inter-connected world economy it would be even more impossible for the United States to live through another world war with it’s weak public and private domestic sectors, a flimsy currency when matched up against others, and without any real way of manufacturing goods for export with an ever increasing un-educated work force.

Note: All information from Dr. Bartilow’s lectures were taken from the sessions between 01.15.09 – 01.30.09
Special Thanks: Dr. Stephen A, Krasner, Dr. Robert Lake and Dr. Horace A. Bartilow

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


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)


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).

The Public Citizen As Journalist – Who’s Literate, Who’s Not?

With vast resources available to writers, we should be the most literate journalists and authors in the universe. A few clicks and that political editorial, how-to article, that endless thesis on the endangered Iberian lynx can be completed in relative sonic time compared to previous generations. But are we too rushed or too lazy to research the validity of our sources?

A Dose of Baking Soda
Wikipedia can be and frequently is easily tampered with by anyone that chooses to do so. Granted, the search engines are a godsend; in seconds you’re on Mars. But their accountability ends there. In the Internet world of citizen writer, it’s the writer’s responsibility to be objective, to discriminate between the literate and the unqualified, as much as it behooves the reader to differentiate between the educated blogger and the uninformed blabbermouth.

Concurrently, there are the usual mainstream media with their honest errors, faux pas and deliberate lies all clamoring to break the story first. Do I use those same clicks and picks? Sometimes. They’re much too easy to ignore, but not without verification. If I want to be taken seriously, I have to forsake easy, take all information with a dose of sodium bicarbonate, and verify before signing my name. If you were writing a sci-fi story and you sent your protagonist back into 660 BCE Japan, the common way to find the name of the emperor of the period would be to ask dot com, maybe Wikipedia or Britannica. But they will lead you into a quagmire where history ends and mythology hints of an Empress who may never have existed. Or did she?

Young Samurai
When I was writing about medieval Japan, I hung out on a blog of young tigers. They knew every shogun family and Imperial era from the present to the mists of time. Anyone that presumed to know what they were talking about but didn’t, got mercilessly beheaded by these 21st century samurai. Accuracy and integrity are important to me so my research involves hunting down experts. Sometimes I’m fooled, but I do try. As part of his research, author James Michener spent his entire life traveling to places he wrote about; he needed to get it right, and he did. It was helpful that I had lived in Japan. I’d learned that hidden in a secret place within the walls of the Imperial Palace, which in itself is a secret place, are ancient historical records that no outsider has ever, nor ever will set eyes on. We can’t all be the constant traveler, but many good sources are available to writers.

The Untouchables
There are some dependable online sites I call my untouchables. They cannot be corrupted and I count on them for accuracy. ALPO, Association of Lunar and Planetary Observers is where amateur astronomers meet the pros, and wonks have fun, learn an enormous amount and share their knowledge. ALPO will take you anywhere you want to go in the universe, to any timeline (yes, you can bring your dog). The Asteroid 2001 RY47 will pass near the earth on the autumnal equinox, September 23rd of this year. If you journey to their website, scroll down to JPL Space Calendar and find the date, you can bring the graphic to life and see how the planets will line up. Mark your calendar and don’t forget to go outside and watch the show live. For a non-scientist like me, the Smithsonian/NASA Astrophysics Data system website ain’t bad either.

For plain old boring facts, the CIA World Fact Book site beats Britannica for depth and scope. Baseball writers can’t go wrong on the Baseball Almanac site; it’s a trip down memory lane, which when cross-referenced with Sporting provides a rich cornucopia of American sports history. Point is there are a zillion reliable websites for discriminating authors, including respected online universities. But writers have to be willing to sacrifice fast and easy for proven fact. Dare I mention the old-fashioned public library?

Lack of Quality Assurance Didn’t Start With China
Should broadcast journalism require quality assurance? Nobody knows better than Dan Rather, an old pro who lost his job at CBS because he didn’t check the facts about President George W. Bush’s National Guard Service during the Vietnam War. Over at ABC, their 2006 production, “The Path To 9/11” was presented as an accurate historical representation of how America could’ a, should’ a grabbed Osama Bin Laden, but didn’t because President Bill Clinton was busy grabbing Monica Lewinsky. ABC’s producers presented as historical fact their own version of one of the most egregious events in American history. History is based on facts not on simplistic or biased views of events. But don’t accept what I just wrote. Historians are detectives and Det. Sgt. Friday accepted nothing but the facts.

In my next article Getting it Right or Don’t Write It, you’ll take a trip to a place you always wanted to go but didn’t have the bucks, a place where the truth was hidden from the world for centuries. In that sentence, I gave you a clue to the place.