JURISPRUDENTIAL BACKGROUND AND
THEORETICAL ISSUES IN INTERNATIONAL LAW AND THE RIGHT TO HEALTHY ENVIRONMENT. ( A LEGAL OVERVIEW)

Written by Calabar E. Daniel Esquire.

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 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 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
U.N. 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 U.N 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. ( 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]n a 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 U.N. 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 U.N. forums (e.g., 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 cannot 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 U.S. 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 the
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 [U.N.'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 guaranteed by the U.S. Constitution,
these rights are] inalienable and imprescriptible; they
cannot be transferred, forfeited, or waived; they cannot be
lost by having been usurped, or by one's failure to
exercise or assert them." (32)
Henkin distinguishes between "immunity claims" (such as
'the State cannot do X to me'; the hallmark of the U.S.
constitutional jurisprudential system) and "resource
claims" (such as 'I have a right to Y') such that the
individual has the right to, for example, free speech, "food,
housing, and other basic human needs." (33) In today's
"global village", the Right to a Healthy Environment is
clearly a "resource claim" and a basic human need that
transcends national boundaries.
According to R.G. Ramcharan, there is "a strict duty... to
take effective measures" by States and the international
community as a whole to protect the environment from the
potential hazards of economic development. (34) His
position is that the Human Right to Life is a. jus cogens,
non-derogable peremptory norm that by its very nature
includes the right to a clean environment. This duty is
clearly spelled out in such multilateral treaties as the UN
Convention on Desertification, the UN Framework
Convention on Climate Change, and the Convention on
Biological Diversity. (35) It is expounded in the Stockholm,
Rio and Copenhagen Declarations as a core component of
the principle of Sustainable Development. It forms the
basis of NAFTA's, the WTO's and the European Union's
economic development agreements, and the European
Convention and the International Covenant on Civil and
Political Rights (ICCPR), which has been ratified by most
countries in the world, including the United States.
The Human Right to a Healthy Environment is explicitly
contained in the Inter-American and African Charters, as
well as in the constitution of over 50 countries worldwide.
Whether it is based on treaties, CIL, or "basic principles",
the obligation of the international community to the
environment is today clearly spelled out and enforceable
through international tribunals. For example, the Lhaka
Honhat Amid Curiae Brief recognized the rights of the
indigenous peoples of Argentina to "an environment that
supports physical and spiritual well being and
development." (36) Similarly, in a separate decision, the
Inter-American Human Rights Commission upheld the
right of the Yanomani in Brazil to a healthy and clean
environment. (37) On a global level, the UN Human Rights
Committee has indicated that environmental damage is "a
violation of the right to life contained in Article 6(1) of the
[ICCPR]". (38)
Thus, today, the erga omnes obligation of States to take
effective steps to safeguard the environment is a duty
that no State can shirk or ignore. If it does, it runs the risk
of prosecution by international courts and having to
institute measures commensurate with its responsibility to
protect its share of the "global commons". Interestingly,
the concept of jus cogens emerged after World War II as a
response to the commonly held view that the sovereignty
of States excused them from violating any of the then so-
called CILs. According to Black's Law Dictionary, "there is
a close connection between jus cogens and the
recognition of a 'public order of the international
community'... Without expressly using the notion of jus
cogens, the [ICJ] implied its existence when it referred to
obligations erga omnes in its judgment... in the Barcelona
Traction Case." (39)
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