I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law doesn't consider human environmental rights to a clean and healthy environment to become a jus cogens human right. Jus cogens ("compelling law") refers to preemptory legal principles and norms which are binding on all international States, regardless of these consent. They're non-derogable in the sense that States cannot make a reservation to a treaty or make domestic or international laws which are in conflict with any international agreement they have ratified and thus to which they're a party. Attorney 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 exactly the same character." (1) Thus, they're 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 thought jus cogens rules of international law which 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 discovered a spot at the best amount of universally recognized legal rights, the latter have only recently and over much opposition, reached a small amount of recognition as a legally regulated activity within the economics and politics of sustainable development.
1. The international legal community recognizes exactly 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 very first source is Customary International Law (CIL), defined as the "general and consistent practice of states followed out of a feeling of legal obligation" (3) (opinio juris sive necessitatus), as opposed to 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 evoking the disappearance of an individual, (d) torture or other cruel, inhuman or degrading treatment... or (g) a consistent pattern of gross violations of internationally recognized human rights." (4) As to the extent such human rights must 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 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 create "internationally recognized human rights" protected under universally recognized international law. Thus, CIL could be produced by the overall proliferation of the legal acknowledgment (opinio juris) and actions of States of just what constitutes "internationally recognized human rights."
2. The next amount 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 which 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 concerning the rights delineated therein, according to the customary international jus gentium principle of pacta sunt servanda (agreements should be respected). Treaties are subsequently internalized by the domestic legal system as a matter of law. Thus, for instance, the U.N Charter's provision against the use of force is binding international law on all States and it, subsequently, 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 Conventional International Law includes treaties, needless to say, as well as related material, interpreted underneath the usual canons of construction of relying on the writing 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 tend to be 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 a few simplified way." (10) For example, they might 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 very least quantity of States object in just a certain time period, or goes into force for several except the ones that object. (11) With regards to the treaty itself, once basic consensus is reached, it is not essential for all to consent to certain modifications for them to get into effect. "[I]n a feeling these are instances of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law may also be produced 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 become a secondary supply of international law that "may be invoked as supplementary rules... where appropriate" (14), some consider them on an "footing of formal equality with both positivist components 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 utilized as a fall-back, you will find sever limits because of the characteristic differences between international law and internal law." (17) Proof 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 for example could be regarded as forming the basis of a broad rule of law." (19) A basic premise of this informative article is that the "relatively exclusive ways (of lawmaking) of yesteryear aren't suited to contemporary circumstances." (20) Jonathan Charney maintains that today's CIL is more and more being produced by consensual multilateral forums, rather than State practice and opinio juris, and that "[consensus, defined as having less 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 determine new international law." (21) This method must be distinguished conceptually as "general international law", as opposed to CIL, as the International Court of Justice (ICJ) has often done.
