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") describes preemptory legal principles and norms which are binding on all international States, regardless of their 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. 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 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). Like, some U.N. Charter provisions and conventions against slavery or torture are considered jus cogens rules of international law which are nonderogable by parties to any international convention.
As 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. As the former have found a place at the best 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. Attorney
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 while 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 whenever 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 steady pattern of gross violations of internationally recognized human rights." (4) As to the 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 "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 sufficient to create "internationally recognized human rights" protected under universally recognized international law. Thus, CIL can be developed by the typical proliferation of the legal acknowledgment (opinio juris) and actions of States of just what 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, 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 exact same way that some States' domestic constitutional law declares the essential 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, like, the U.N Charter's provision against the usage of force is binding international law on all States and it, subsequently, is binding law in the United States, like, 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 has to be interpreted within the context of CIL. (8) As a practical 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) Many of these new instruments "do no require ratification but enter into force in a few simplified way." (10) Like, they might require only signatures, or they enter into force for all original parties whenever a minimum number of States ratify the modification or unless a minimum number of States object within a certain timeframe, or goes into force for all except the ones that object. (11) With respect to the treaty itself, once basic consensus is reached, it is not necessary for all to consent to certain modifications for them to get into effect. "[I]n a sense they 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 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 two positivist elements of custom and treaty" ;.(15) Examples would 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 can be utilized as a fall-back, there are sever limits because of 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 produce binding CIL if they're "of a fundamentally norm-creating character such as could be regarded as forming the foundation of a general rule of law." (19) A simple premise of this article is that the "relatively exclusive ways (of lawmaking) of the past are not suitable for contemporary circumstances." (20) Jonathan Charney maintains that today's CIL is more and more being developed by consensual multilateral forums, in place of 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 could be sufficient to establish new international law." (21) This method should really be distinguished conceptually as "general international law", rather than CIL, while the International Court of Justice (ICJ) has often done.
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