I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, 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 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'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] 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). As an example, 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 are finding a location 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 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 since the "general and consistent practice of states followed out of a sense of legal obligation" (3) (opinio juris sive necessitatus), as opposed to out of moral obligation. Attorney 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 causing the disappearance of people, (d) torture and other cruel, inhuman or degrading treatment... or (g) a consistent pattern of gross violations of internationally recognized human rights." (4) From what extent such human rights need to be "internationally recognized" is unclear, 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 enough to create "internationally recognized human rights" protected under universally recognized international law. Thus, CIL could be developed by the overall proliferation of the legal acknowledgment (opinio juris) and actions of States of what precisely constitutes "internationally recognized human rights."
2. Another amount of binding international law is that of international agreements (treaties), or Conventional International Law. Just like 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 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 about the rights delineated therein, in line with 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 utilization 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 Conventional International Law includes treaties, of course, in addition to related material, interpreted beneath the usual canons of construction of counting on the writing itself and the words' ordinary meanings. (7) Often, conventional law must 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) Most of these new instruments "do no require ratification but enter into force in a few simplified way." (10) As an example, they might require only signatures, or they enter into force for many original parties when a minimum amount of States ratify the modification or unless the very least amount of States object within a certain time frame, or goes into force for many except those that object. (11) With respect to the treaty itself, once basic consensus is reached, it is not required for all to consent to certain modifications for them to get into effect. "[I]n a sense these are cases of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law are also 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 as a result, not of international law per se. While many consider these general principles to be a secondary supply of international law that "might 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, you can 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 produce binding CIL if they're "of a fundamentally norm-creating character such as might be regarded as forming the foundation of a general rule of law." (19) A basic premise of this informative article is that the "relatively exclusive ways (of lawmaking) of the past are not ideal 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 possible lack of 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 determine new international law." (21) This process should be distinguished conceptually as "general international law", as opposed to CIL, since the International Court of Justice (ICJ) has often done.
