I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
Up to now, traditional international law does not consider human environmental rights to a clean and healthy environment to become 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're 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've 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 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 believed jus cogens rules of international law that are nonderogable by parties to any international convention.
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 have found a place at the best level of universally recognized legal rights, the latter have only recently and over much opposition, reached a small level of recognition as a legally regulated activity within the economics and politics of sustainable development.
1. The international legal community recognizes the same resources of international law as does the United States' legal system. The three resources 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 an expression 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 inducing the disappearance of people, (d) torture or other cruel, inhuman or degrading treatment... or (g) a constant pattern of gross violations of internationally recognized human rights." (4) From what 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 produce "internationally recognized human rights" protected under universally recognized international law. Thus, CIL can be created by the typical proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes "internationally recognized human rights."
2. Another level 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 that have ratified that treaty. Exactly the 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, in line with the customary international jus gentium principle of pacta sunt servanda (agreements can 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 use 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. Attorney
Proof Conventional International Law includes treaties, needless to say, in addition to related material, interpreted under the usual canons of construction of depending on the writing 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 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 certain simplified way." (10) For example, they could require only signatures, or they enter into force for many original parties whenever a minimum number of States ratify the modification or unless the very least number of States object within a certain time frame, or goes into force for many except those that object. (11) Depending on the treaty itself, once basic consensus is reached, it is not essential for all to consent to certain modifications to allow them to enter effect. "[I]n an expression 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 the 2 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 may be used as a fall-back, you will find sever limits due to 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 make binding CIL if they are "of a fundamentally norm-creating character such as for instance might be regarded as forming the basis of a broad rule of law." (19) A basic premise of this information is that the "relatively exclusive ways (of lawmaking) of the past are not suited to 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 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 should be distinguished conceptually as "general international law", rather than CIL, whilst the International Court of Justice (ICJ) has often done.
