I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law doesn't 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 which can be binding on all international States, regardless of the consent. They're non-derogable in the sense that States cannot produce a reservation to a treaty or make domestic or international laws which can be 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] at the mercy of modification only by a subsequent norm... having the exact same character." (1) Thus, they are the axiomatic and universally accepted legal norms that bind all nations under jus gentium (law of nations). For instance, some U.N. Charter provisions and conventions against slavery or torture are considered jus cogens rules of international law which can be nonderogable by parties to any international convention. Attorney
Whilst the international legal system has evolved to embrace and even codify basic, non-derogable human rights (2), the evolution of environmental legal regimes haven't advanced as far. Whilst the former are finding a place at the greatest amount of universally recognized legal rights, the latter have only recently and over much opposition, reached a modest amount of recognition as a legally regulated activity within the economics and politics of sustainable development.
1. The international legal community recognizes the exact same sourced elements of international law as does the United States' legal system. The three sourced elements 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 whilst 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 every time a State, "as a matter of state policy,... practices, encourages or condones (a) genocide, (b) slavery... (c) the murder or causing the disappearance of people, (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 have to be "internationally recognized" is not clear, but surely most 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.
Proof 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 enough to create "internationally recognized human rights" protected under universally recognized international law. Thus, CIL may be created by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of what precisely constitutes "internationally recognized human rights."
2. The next amount of binding international law is that of international agreements (treaties), or Conventional International Law. In the same way 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 which have ratified that treaty. Exactly the same way that some States' domestic constitutional law declares the fundamental human rights of each State's citizens, so do international treaties create binding law concerning the rights delineated therein, in line with 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 instance, the U.N Charter's provision against the utilization of force is binding international law on all States and it, in turn, is binding law in the United States, for instance, and on its citizens. (6) Treaties are analogous to "contracts" in the domestic legal system.
Proof of Conventional International Law includes treaties, obviously, 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 needs to be interpreted within the context of CIL. (8) As a functional matter, treaties in many cases are 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) These types of new instruments "do no require ratification but enter into force in some simplified way." (10) For instance, they could require only signatures, or they enter into force for several original parties each time a minimum quantity of States ratify the modification or unless the absolute minimum quantity of States object in just a certain time frame, or goes into force for several except the ones that object. (11) With regards to the treaty itself, once basic consensus is reached, it's not essential 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 based on 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 "might 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, you can find sever limits due to the characteristic differences between international law and internal law." (17) Proof 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're "of a fundamentally norm-creating character such as for example might be regarded as forming the basis of an over-all rule of law." (19) A basic premise of this article is that the "relatively exclusive ways (of lawmaking) of the past aren't ideal 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 having less expressed objections to the rule by any participant, may often be sufficient... Theoretically, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum might be sufficient to determine new international law." (21) This process should be distinguished conceptually as "general international law", rather than CIL, whilst the International Court of Justice (ICJ) has often done.
