I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law doesn't 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 these consent. 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 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] at the mercy of 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). Like, 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.
As 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. As the former have discovered a place at the highest amount of universally recognized legal rights, the latter have only recently and over much opposition, reached a small 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 first source is Customary International Law (CIL), defined whilst 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 causing the disappearance of an individual, (d) torture or other cruel, inhuman or degrading treatment... or (g) a regular pattern of gross violations of internationally recognized human rights." (4) From what extent such human rights have 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.
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. Thus, CIL may be produced by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes "internationally recognized human rights."
2. The following amount 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 which have ratified that treaty. The same way that some States' domestic constitutional law declares the basic human rights of every State's citizens, so do international treaties create binding law about the rights delineated therein, based on the customary international jus gentium principle of pacta sunt servanda (agreements should 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.
Proof of Conventional International Law includes treaties, needless to say, as well as related material, interpreted beneath the usual canons of construction of depending 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 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) Many of these new instruments "do no require ratification but enter into force in certain simplified way." (10) Like, they could require only signatures, or they enter into force for many original parties when a minimum amount of States ratify the modification or unless a minimum amount of States object in just a certain time frame, or goes into force for many except those who object. (11) Depending on the treaty itself, once basic consensus is reached, it's not required for all to consent to certain modifications for them to enter effect. "[I]n a sense these are cases of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12) Bankruptcy
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 therefore, 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 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 because of the characteristic differences between international law and internal law." (17) Proof 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 might be regarded as forming the foundation of a general rule of law." (19) A basic premise of this article is that the "relatively exclusive ways (of lawmaking) of yesteryear aren't suited to contemporary circumstances." (20) Jonathan Charney maintains that today's CIL is more and more being produced 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 establish new international law." (21) This process should be distinguished conceptually as "general international law", as opposed to CIL, whilst the International Court of Justice (ICJ) has often done.
