International Law And the Directly to A Healthy Environment As a Jus Cogens Human Right.

 

I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES

Up to now, 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") refers to preemptory legal principles and norms that 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 that are in conflict with any international agreement they've 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] subject to modification only by a subsequent norm... having the same character." (1) Thus, they're 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 believed jus cogens rules of international law that are 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 have not advanced as far. As the former are finding a location at the greatest degree of universally recognized legal rights, the latter have only recently and over much opposition, reached a moderate degree of recognition as a legally regulated activity within the economics and politics of sustainable development.

1. The international legal community recognizes the same sourced elements of international law as does the United States' legal system law. 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 initial source is Customary International Law (CIL), defined since the "general and consistent practice of states followed out of a feeling of legal obligation" (3) (opinio juris sive necessitatus), rather than 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 inducing the disappearance of individuals, (d) torture and 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 must 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 produce "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 just what constitutes "internationally recognized human rights."

2. The next degree 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. Exactly the same way that some States' domestic constitutional law declares the basic human rights of each State's citizens, so do international treaties create binding law concerning 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, obviously, in addition to related material, interpreted underneath 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 functional 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 certain simplified way." (10) For example, they may require only signatures, or they enter into force for several original parties each time a minimum amount of States ratify the modification or unless a minimum amount of States object in just a certain time frame, or adopts force for several except those that object. (11) With regards to the treaty itself, once basic consensus is reached, it's not necessary for all to consent to certain modifications in order for them to get into effect. "[I]n a feeling these are cases of an IGO [(international governmental organization)] organ 'legislating' directly for [S]tates." (12)

3. Finally, rules of international law are also 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 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 elements 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 used as a fall-back, you will 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)