I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law doesn't consider human environmental rights to a clear and healthy environment to become a jus cogens human right. Jus cogens ("compelling law") refers to preemptory legal principles and norms which are binding on all international States, regardless of these consent. They are non-derogable in the sense that States cannot produce a reservation to a treaty or make domestic or international laws which are in conflict with any international agreement that 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] susceptible 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.
Whilst 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. Whilst the former are finding a location at the best level of universally recognized legal rights, the latter have only recently and over much opposition, reached a moderate level of recognition as a legally regulated activity within the economics and politics of sustainable development.
1. The international legal community recognizes exactly 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 as the "general and consistent practice of states followed out of a feeling of legal obligation" (3) (opinio juris sive necessitatus), as opposed to 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 causing the disappearance of people, (d) torture and other cruel, inhuman or degrading treatment... or (g) a constant pattern of gross violations of internationally recognized human rights." (4) To what extent such human rights have to be "internationally recognized" is not yet determined, 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 "span 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 enough to create "internationally recognized human rights" protected under universally recognized international law attorney. Thus, CIL may 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. The next level 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 that 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 regarding the rights delineated therein, based on 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 use 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 of Conventional International Law includes treaties, of course, as well as related material, interpreted beneath the usual canons of construction of relying on the text itself and the words' ordinary meanings. (7) Often, conventional law must be interpreted within the context of CIL. (8) As a practical 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) As an example, they might require only signatures, or they enter into force for many original parties each time a minimum number of States ratify the modification or unless the very least number of States object in just a certain time period, or goes into force for many except those that object. (11) Depending on the treaty itself, once basic consensus is reached, it's not required for all to consent to certain modifications in order for them to get into effect. "[I]n a feeling they're instances of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law will 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 a result, not of international law per se. While many consider these general principles to become 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 both 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 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 of General Principles of Law includes "municipal laws, doctrine and judicial decisions." (18)
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