I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law does not consider human environmental rights to a clear and healthy environment to become a jus cogens human right. Jus cogens ("compelling law") identifies preemptory legal principles and norms that are binding on all international States, regardless of the 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 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 same character." (1) Thus, they are the axiomatic and universally accepted legal norms that bind all nations under jus gentium (law of nations). Like, some U.N. Charter provisions and conventions against slavery or torture are believed jus cogens rules of international law that are nonderogable by parties to any international convention. Bankruptcy
While 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. 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 moderate amount 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 initial source is Customary International Law (CIL), defined as the "general and consistent practice of states followed out of an expression of legal obligation" (3) (opinio juris sive necessitatus), rather than out of moral obligation. Furthermore, CIL is violated each time a State, "as a matter of state policy,... practices, encourages or condones (a) genocide, (b) slavery... (c) the murder or inducing the disappearance of an individual, (d) torture and 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 must be "internationally recognized" is not yet determined, 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 "length 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 produce "internationally recognized human rights" protected under universally recognized international law. Thus, CIL could be created by the overall proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes "internationally recognized human rights."
2. The following amount of binding international law is that of international agreements (treaties), or Conventional International Law. Just as jus cogens rights and rules of law, in addition to 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 exact same way that some States' domestic constitutional law declares the basic human rights of every State's citizens, so do international treaties create binding law about the rights delineated therein, in line with the customary international jus gentium principle of pacta sunt servanda (agreements should 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 usage 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.
Evidence of Conventional International Law includes treaties, obviously, in addition to related material, interpreted underneath the usual canons of construction of depending 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 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) These types of new instruments "do no require ratification but enter into force in some simplified way." (10) Like, they might require only signatures, or they enter into force for many original parties when a minimum quantity of States ratify the modification or unless a minimum quantity of States object within a certain timeframe, or goes into force for many except the ones that object. (11) Depending on the treaty itself, once basic consensus is reached, it is not necessary for all to consent to certain modifications in order for them to get into effect. "[I]n an expression these are cases of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law will also be 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 therefore, not of international law per se. While many consider these general principles to become 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 both positivist elements of custom and treaty" ;.(15) Examples will be 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 may 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 cause binding CIL if they are "of a fundamentally norm-creating character such as for instance might be regarded as forming the foundation of a broad 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, 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... The theory is that, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum might be sufficient to ascertain new international law." (21) This method ought to be distinguished conceptually as "general international law", rather than CIL, as the International Court of Justice (ICJ) has often done.
