I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
Currently, traditional international law does not consider human environmental rights to a clean and healthy environment to become a jus cogens human right. Jus cogens ("compelling law") refers to preemptory legal principles and norms that are binding on all international States, regardless of these consent attorneys. They're non-derogable in the sense that States cannot make a reservation to a treaty or make domestic or international laws that 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 future 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 believed jus cogens rules of international law that 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 discovered a spot at the greatest level of universally recognized legal rights, the latter have only recently and over much opposition, reached a small 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 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 an expression 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 inducing 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) To what extent such human rights must be "internationally recognized" is unclear, 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.
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 make "internationally recognized human rights" protected under universally recognized international law. Thus, CIL could be developed by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of what precisely 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, 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. The same way that some States' domestic constitutional law declares the fundamental 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 are to be respected). Treaties are subsequently internalized by the domestic legal system as a matter of law. Thus, as an example, the U.N Charter's provision against the utilization of force is binding international law on all States and it, subsequently, 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.
Evidence of Conventional International Law includes treaties, obviously, in addition to related material, interpreted beneath the usual canons of construction of depending on the writing 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 are often 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) As an example, they could require only signatures, or they enter into force for several original parties when a minimum number of States ratify the modification or unless the very least number of States object inside a certain time period, or switches into force for several except those who object. (11) With regards to the treaty itself, once basic consensus is reached, it is not necessary for all to consent to certain modifications for them to get into effect. "[I]n an expression these are instances of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)
3. Finally, rules of international law will 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 therefore, 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 the 2 positivist elements 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, there are 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)