Upholding Community Interests with Absolute Obligations: A Comparison of the Convention on Biological Diversity and Human Rights Treaties

Authors

Paul-Angelo Dell'Isola, University of Pennsylvania Carey Law School L'24Follow

Publication Date

Summer 2024

First Page

1145

Document Type

Comment

Abstract

International law traditionally did not concern itself with States’ treatment of individuals, flora, or fauna subject to their jurisdictions. Contemporary international law does. International law recognizes the protection of human rights and the biosphere as community interests, interests that transcend States’ interests and demand international regulation. Yet, the treaty regimes that secure the protection of human rights and the biosphere operate in diametrically opposed ways. Human rights regimes rely on international institutions to define objective communitarian norms for States to abide by, whereas the Convention on Biological Diversity regime relies on private markets to internalize the cost of development and thereby preserve the biosphere.

This Comment argues that international law’s recognition of community interests demands that State obligations be framed as “absolute” ones, owed regardless of the conduct of other States party to a given treaty. The absolute character of human rights obligations disallows States from modulating the scope of their performance based on the conduct of other State parties and justifies international public scrutiny over States’ compliance with their international obligations. In contrast, the nonabsolute operation of conservation obligations helps to maintain States as sovereign property owners with no overriding duties to protect the biosphere and limited venues for public scrutiny. This theoretical insight has practical implications. A proper framing of the protection of the biosphere as a community interest under international law demands that States’ conservation obligations be framed as absolute ones so as to recognize the biosphere as an object of concern in its own right, regardless of how States value its uses. This Comment describes two models of community interest treaties, evaluates them against the need to subject States to objective communitarian norms and public scrutiny, and identifies treaty design issues that may arise should international biodiversity law be reformed to make States’ conservation obligations absolute.

Repository Citation

Paul-Angelo Dell'Isola, Upholding Community Interests with Absolute Obligations: A Comparison of the Convention on Biological Diversity and Human Rights Treaties, 45 U. Pa. J. Int’l L. 1145 (2024).
Available at: https://scholarship.law.upenn.edu/jil/vol45/iss4/5