I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
Up to now, traditional international law doesn't consider human environmental rights to a clear and healthy environment to be a jus cogens human right. Jus cogens ("compelling law") describes 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 create 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're 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're 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 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 haven't advanced as far. While the former have discovered a place at the best 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 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), 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 individuals, (d) torture and other cruel, inhuman or degrading treatment... or (g) a steady pattern of gross violations of internationally recognized human rights." (4) From what extent such human rights need to 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 "span 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 make "internationally recognized human rights" protected under universally recognized international law. Bankruptcy Thus, CIL could be developed by the typical proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes "internationally recognized human rights."
2. The following level of binding international law is that of international agreements (treaties), or Conventional International Law. Just like jus cogens rights and rules of law, along with 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 exact same way that some States' domestic constitutional law declares the essential human rights of every State's citizens, so do international treaties create binding law concerning the rights delineated therein, based on the customary international jus gentium principle of pacta sunt servanda (agreements are to be respected). Treaties are consequently internalized by the domestic legal system as a matter of law. Thus, for example, the U.N Charter's provision against the utilization of force is binding international law on all States and it, consequently, is binding law in the United States, for example, and on its citizens. (6) Treaties are analogous to "contracts" in the domestic legal system.
Proof Conventional International Law includes treaties, needless to say, along with related material, interpreted under the usual canons of construction of counting 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 practical 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) Most of these new instruments "do no require ratification but enter into force in a few simplified way." (10) For instance, they may require only signatures, or they enter into force for many original parties whenever a minimum quantity of States ratify the modification or unless the very least quantity of States object in just a certain time period, or adopts force for many except the ones that object. (11) Depending on the treaty itself, once basic consensus is reached, it's not necessary for all to consent to certain modifications for them to get into effect. "[I]n a feeling they are cases of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law may also be 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 therefore, not of international law per se. While many consider these general principles to be 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 the 2 positivist aspects 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, there are 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 produce binding CIL if they're "of a fundamentally norm-creating character such as for example might be regarded as forming the cornerstone of a general rule of law." (19) A simple premise of this article is that the "relatively exclusive ways (of lawmaking) of yesteryear aren't suitable for contemporary circumstances." (20) Jonathan Charney maintains that today's CIL is more and more being developed 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... Theoretically, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum might be sufficient to determine new international law." (21) This technique ought to be distinguished conceptually as "general international law", rather than CIL, as the International Court of Justice (ICJ) has often done.
