I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law does not 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 which are binding on all international States, regardless of the 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 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] subject to modification only by a future 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). 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.
While 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. While the former are finding a spot at the best level of universally recognized legal rights, the latter have only recently and over much opposition, reached a modest 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 initial source is Customary International Law (CIL), defined whilst 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 inducing the disappearance of an individual, (d) torture or 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 must be "internationally recognized" is not yet determined, 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 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 produce "internationally recognized human rights" protected under universally recognized international law. Thus, CIL may be developed by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of just what constitutes "internationally recognized human rights."
2. The next level of binding international law is that of international agreements (treaties), or Conventional International Law. Just like jus cogens rights and rules of law, along with 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 fundamental 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 can be respected). Treaties are consequently internalized by the domestic legal system as a matter of law. Thus, as an 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, as an example, and on its citizens. (6) Treaties are analogous to "contracts" in the domestic legal system.
Proof of Conventional International Law includes treaties, of course, along with related material, interpreted beneath the usual canons of construction of depending on the writing itself and the words' ordinary meanings. (7) Often, conventional law has to be interpreted within the context of CIL. (8) As a functional 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) These types of new instruments "do no require ratification but enter into force in a few simplified way." (10) As an example, they could 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 inside a certain time period, or goes into force for many except those that object. (11) With respect to the treaty itself, once basic consensus is reached, it's not essential for all to consent to certain modifications for them to get into effect. "[I]n an expression they are instances of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law will 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 both positivist components 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 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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