I. JURISPRUDENTIAL BACKGROUND AND THEORETICAL ISSUES
To date, traditional international law does not 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 their consent. They are non-derogable in the sense that States can not 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 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 the same character." (1) Thus, they are the axiomatic and universally accepted legal norms that bind all nations under jus gentium (law of nations). For example, some UN Charter provisions and conventions against slavery or torture are considered jus cogens rules of international law that 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 have found a place at the highest 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 the same sources of international law as does the United States' legal system. The three sources 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 as the "general and consistent practice of states followed out of a sense of legal obligation "(3) (opinio juris sive necessitatus), rather than 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 causing the disappearance of individuals, ( d) torture or other cruel, inhuman or degrading treatment … or (g) a consistent pattern of gross violations of internationally recognized human rights. " (4) To what extent such human rights need to be "internationally recognized" is not clear, 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.
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 can be created by the general proliferation of the legal acknowledgment (opinio juris) and actions of States of what exactly constitutes "internationally recognized human rights."
2. The next level of binding international law is that of international agreements (treaties), or Conventional International Law. Just as jus cogens rights and rules of law, as well as 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 basic human rights of each State's citizens, so do international treaties create binding law regarding the rights delineated therein, according to 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 example, the UN 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 example, and on its citizens. (6) Treaties are analogous to "contracts" in the domestic legal system.
Evidence of Conventional International Law includes treaties, of course, as well as related material, interpreted under the usual canons of construction of relying 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 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) Most of these new instruments "do no require ratification but enter into force in some simplified way." (10) For example, they may require only signatures, or they enter into force for all original parties when a minimum number of States ratify the modification or unless a minimum number of States object within a certain time frame, or goes into force for all except those that object. (11) Depending on the treaty itself, once basic consensus is reached, it is not necessary for all to consent to certain modifications for them to go into effect. "[I] na sense these are instances of an IGO [(international governmental organization)] organ 'legislating' directly for [S] tates." (12)
3. Finally, rules of international law are also 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 such, not of international law per se. While many consider these general principles to be a secondary source of international law that "may be invoked as supplementary rules … where appropriate" (14), some consider them on an "footing of formal equality with the two 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 because of the characteristic differences between international law and internal law." (17) Evidence of General Principles of Law includes "municipal laws, doctrine and judicial decisions." (18)
Treaty provisions and their inherent obligations can create binding CIL if they are "of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law." (19) A basic premise of this article is that the "relatively exclusive ways (of lawmaking) of the past are not suitable for contemporary circumstances." (20) Jonathan Charney maintains that today's CIL is more and more being created by consensual multilateral forums, as opposed to State practice and opinio juris, and that "[consensus, defined as the lack of expressed objections to the rule by any participant, may often be sufficient … In theory, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum could be sufficient to establish new international law. " (21) This process should be distinguished conceptually as "general international law", rather than CIL, as the International Court of Justice (ICJ) has often done.
In like vein, Professor Gunther Handl argues that all multilateral environmental agreements (MEAs) of "global applicability" create "general international law":
"A multilateral treaty that addresses fundamental concerns of the international community at large, and that as such is strongly supported by the vast majority of states, by international organizations and other transnational actors, – and this is, of course, precisely the case with the biodiversity, climate, and ozone regimes, among others-may indeed create expectations of general compliance, in short such a treaty may come to be seen as reflecting legal standards of general applicability … and as such must be deemed capable of creating rights and obligations both for third states and third organizations. " (22)
Notwithstanding, Daniel Bodansky argues that CIL is so rarely supported by State action, that it is not customary law at all. "International environmental norms reflect not how states regularly behave, but how states speak to each other." (23) Calling such law "declarative law" that is part of a "myth system" representing the collective ideals and the "verbal practice" of States, he concludes that "our time and efforts would be better spent attempting to translate the general norms of international environmental relations into concrete treaties and actions. " (24)
However, a review of the current status of international human rights and environmental law may reveal the mechanisms for raising environmental rights to the level of jus cogens rights. For example, the UN Convention on the Law of the Seas (UNCLOS), whose negotiation was initiated in 1972 and signed in 1982, was considered by most countries to be CIL by the time it came into force in 1994. (25)
II. CURRENT STATUS OF THE RIGHT TO A HEALTHY ENVIRONMENT No State today will publicly state that it is within its sovereign rights to damage their domestic environment, much less that of the international community, however most States do not guarantee environmental protection as a basic human right. Currently, environmental law is composed of mostly Conventional International Law and some CIL. The former relies on express consent and the latter on implied consent, unless a State avails itself of the Persistent Objector principle, which precludes it from being bound by even most CIL. Unlike for human rights and international crimes, there is no general environmental rights court in existence today. While the Law of the Sea Tribunal and other UN forums (eg, the ICJ) exist for trying cases of treaty violations, non-treaty specific violations have no international venue at present. Italian Supreme Court Justice Amedeo Postiglione states that
"[T] he human right to the environment, must have, at the international level, a specific organ of protection for a fundamental legal and political reason: the environment is not a right of States but of individuals and can not be effectively protected by the International Court of Justice in the Hague because the predominantly economic interests of the States and existing institutions are often at loggerheads with the human right to the environment. " (26)
Domestic remedies would have to be pursued first, of course, but standing would be granted to NGOs, individuals, and States when such remedies proved futile or "the dispute raises issues of international importance." (27) For example, although the ICJ has an "environmental chamber" and US courts often appoint "special masters" to handle these types of disputes, it is clear that the recognition of the human right to the environment needs an international court of its own in order to recognize such a right and remedy international violations in an efficient and equitable manner. (28)
III. THE JUS COGENS NATURE OF ENVIRONMENTAL RIGHTS Irrespective of specific treaty obligations and domestic environmental legislation, do States, or the international community as a whole, have a duty to take measures to prevent and safeguard against environmental hazards?
Human rights are "claims of entitlement" that arise "as of right" (31) and are independent of external justification; they are "self evident" and fundamental to any human being living a dignified, healthy and productive and rewarding life. As Louis Henkin points out:
"Human rights are not some abstract, inchoate 'good'; they are defined, particular claims listed in international instruments such as the [UN's] Universal Declaration of Human Rights and the major covenants and conventions. They are those benefits deemed essential for individual well -being [sic], dignity, and fulfillment, and that reflect a common sense of justice, fairness, and decency. [No longer are human rights regarded as grounded in or justified by utilitarianism,] natural law, … social contract, or any other political theory … [but] are derived from accepted principles, or are required by accepted ends-societal ends such as peace and justice; individual ends such as human dignity, happiness, fulfillment. [Like the fundamental rights …