I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law does not 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 can be binding on all international States, regardless of their consent attorney. They're non-derogable in the sense that States cannot make a reservation to a treaty or make domestic or international laws which can be in conflict with any international agreement that 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] susceptible to modification only by a future norm... having the exact same character." (1) Thus, they are 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 thought jus cogens rules of international law which can be 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 are finding a spot at the greatest 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 exact same sourced elements of international law as does the United States' legal system. The three sourced elements 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 an expression of legal obligation" (3) (opinio juris sive necessitatus), as opposed to 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 evoking the disappearance of individuals, (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 need to be "internationally recognized" is not clear, 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 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 make "internationally recognized human rights" protected under universally recognized international law. Thus, CIL can be created by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes "internationally recognized human rights."
2. Another amount of binding international law is that of international agreements (treaties), or Conventional International Law. In the same way 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. The same way that some States' domestic constitutional law declares the fundamental 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 can 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 utilization 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.
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 text itself and the words' ordinary meanings. (7) Often, conventional law must 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) Most of these new instruments "do no require ratification but enter into force in some simplified way." (10) As an example, they may require only signatures, or they enter into force for all original parties whenever a minimum quantity of States ratify the modification or unless a minimum quantity of States object in just a certain time frame, or goes into force for all 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 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 as a result, not of international law per se. While many consider these general principles to be 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 the two positivist aspects 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 used 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)
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