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 their consent. They're non-derogable in the sense that States cannot produce 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 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 subsequent norm... having exactly the same character." (1) Thus, they are 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 thought jus cogens rules of international law that 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 degree of universally recognized legal rights, the latter have only recently and over much opposition, reached a modest degree 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 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), as opposed to out of moral obligation. 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 evoking the disappearance of individuals, (d) torture or 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 lot 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 "length of dealing" or "usage of trade" in the domestic commercial legal system.
Evidence 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 what exactly constitutes "internationally recognized human rights." Bankruptcy
2. Another degree of binding international law is that of international agreements (treaties), or Conventional International Law. Just like 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 that have ratified that treaty. Exactly the same way that some States' domestic constitutional law declares the basic 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 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.
Evidence of Conventional International Law includes treaties, of course, as well as related material, interpreted beneath the usual canons of construction of counting 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) For example, they could require only signatures, or they enter into force for several original parties each time a minimum quantity of States ratify the modification or unless the absolute minimum quantity of States object within a certain timeframe, or adopts force for several except those 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 in order for them to go 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 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 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 both positivist aspects of custom and treaty" ;.(15) Examples will 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 may be used as a fall-back, you can find sever limits due to the characteristic differences between international law and internal law." (17) Evidence 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 for instance could possibly be regarded as forming the basis of a general rule of law." (19) A simple premise of this information is that the "relatively exclusive ways (of lawmaking) of the past aren't suited to contemporary circumstances." (20) Jonathan Charney maintains that today's CIL is more and more being developed by consensual multilateral forums, instead 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... In theory, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum could possibly be sufficient to ascertain new international law." (21) This method should be distinguished conceptually as "general international law", as opposed to CIL, while the International Court of Justice (ICJ) has often done.
