I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
Up to now, traditional international law does not consider human environmental rights to a clear and healthy environment to become a jus cogens human right. Jus cogens ("compelling law") describes 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 make a reservation to a treaty or make domestic or international laws which are 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] subject to modification only by a subsequent norm... having exactly the same character lawyer." (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 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 haven't advanced as far. Whilst the former have found a location at the highest degree of universally recognized legal rights, the latter have only recently and over much opposition, reached a small 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 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 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. 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 inducing the disappearance of individuals, (d) torture or other cruel, inhuman or degrading treatment... or (g) a steady 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 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. Thus, CIL may 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 degree of binding international law is that of international agreements (treaties), or Conventional International Law. Just as 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. Exactly 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, based on the customary international jus gentium principle of pacta sunt servanda (agreements are to 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, in addition to related material, interpreted beneath the usual canons of construction of counting on the text itself and the words' ordinary meanings. (7) Often, conventional law needs 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 some simplified way." (10) For example, they might require only signatures, or they enter into force for several original parties each time a minimum quantity of States ratify the modification or unless a minimum quantity of States object within a certain time period, or goes into force for several except those that object. (11) With respect to the treaty itself, once basic consensus is reached, it is not essential for all to consent to certain modifications in order for them to get into effect. "[I]n a sense they're cases of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law may also be 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 become 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 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 utilized as a fall-back, there are 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)
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