I. JURISPRUDENTIAL BASE AND THEORETICAL ISSUES
Traditional international law has not considered human rights to clean and healthy environments to be a human right under jus cogens. Jus cogens, or “compelling law”, refers to preemptory legal norms and principles that are binding on all countries worldwide, regardless of whether they consent. They are not derogable in that states cannot make reservations to treaties or make domestic or foreign laws that conflict with international agreements they have ratified. They “prevail and invalidate all international agreements and any other rules of international legal conflicting with them… [and] are subject to modification only through a subsequent norm… having a similar character.” They are therefore the universally accepted and axiomatic legal norms that all nations must adhere to under jus Gentium (law of nations). Some U.N. Charter provisions, and international conventions against slavery and torture, are examples of jus cogens international law rules that cannot be derogated by any parties to any international agreement.
The international legal system has developed to codify and embrace basic human rights (2). However, environmental legal regimes are still not as advanced. The former are recognized at the highest level of legal rights. However, the latter, despite much opposition, have recently been recognised as an economically and politically sustainable activity.
1. The United States legal system does not recognize the international legal community’s recognition of the same sources as the international legal community. The Restatement (Third), of the Foreign Relations Law of United States (R3dFRLUS), Section 101, outlines the three sources of international legal. The first source of international law is Customary International Law (CIL), which is defined as “the general and consistent practice of States followed out of a feeling of legal obligation” (3) (opinio jurs sive necessitatus). This is in addition to any moral obligation. CIL is also violated when a State encourages or condones genocide… (b) slavery…(c) the murder of or causing the disappearance or killing of individuals… (d) torture… or (g) a pattern of gross violations internationally recognized human rights. It is unclear how many of these human rights must be “internationally recognised”, but it is certain that a majority of world’s countries must recognize them before a “consistent series of gross violations” of CIL can be considered. CIL is similar to the “course of dealing” and “usage of trade” within the domestic legal system.
CIL evidence includes “constitutional and legislative, as well as executive, promulgations by states, proclamations and judicial decisions, arbitral award, writings by specialists on international law and international agreements, resolutions and recommendations from international conferences and organisations, and writings of experts on international law.” This evidence can be used to establish that “internationally recognized human right” is protected by universally recognized international laws. CIL can thus be made by the widespread proliferation of the legal acknowledgement (opiniojuris) as well as the actions of States regarding what constitutes “internationally recognised human rights.”
2. Next is the international agreement (treaties), which is Conventional International Law. International treaties are binding international law for Party Members who have ratified it. Just like jus cogens and rules of the law, and CIL, also, international treaties can be binding. Just as some States’ national constitutions declare the fundamental human rights of their citizens, international treaties can also create binding international law regarding those rights, in accordance with the international jus-gentium principle of “pacta sind servanda” (agreements must be respected). The domestic legal system then internalizes the treaties as a matter law. For example, the U.N Charter’s prohibition against force use is binding international law for all States. It is also binding law for the United States (and its citizens). (6) Treaties are analogue to domestic “contracts”.
