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.

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. 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.

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. 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). 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. (17) Evidence of General Principles of Law includes “municipal laws, doctrine and judicial decisions.” (18)

(21) This process should be distinguished conceptually as “general international law”, rather than CIL, as the International Court of Justice (ICJ) has often done.

“International environmental norms reflect not how states regularly behave, but how states speak to each other.”

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. 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. Unlike for human rights and international crimes, there is no general environmental rights court in existence today.

“[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)

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?

(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)

THIRD GENERATION HUMAN RIGHTS AND THE ENVIRONMENT Is environmental protection is an erga omnes obligation, that is, one owed to the international community as a whole as a jus cogens human right?

Sustainable development acts as a reconciling principle between economic development and environmental protection.

The first generation of Human Rights were those declared by the “soft law” of the Universal Declaration of Human Rights: “Everyone has the right to life liberty and security of person.” CONCLUSION: CRITICAL WEAKNESS OF THE CURRENT SYSTEM AND THE LEGAL CONSEQUENCES OF THE RIGHT TO A HEALTHY ENVIRONMENT AS A BASIC HUMAN RIGHT

As long as States can ignore commonplace violations of human rights (sporadic instances of torture, occasional “disappearances”) and shun the edicts of human rights judicial decisions, there can be no effective system of international human rights enforcement.

While interpretive gaps exist, it is not inconceivable that the right to a healthy environment can be extrapolated from current international environmental treaties and CIL. “Soft law” over time becomes CIL.

Until then, as long as human life continues to be destroyed by “human rights ratifying” nations, how much enforcement will be employed against violators of environmental laws when the right to a healthy environment is not upheld as a basic human right remains to be seen. 5. Mark W. Janis, An Introduction to International Law 6 (3d. ed, Aspen Law ; Business 1999). 8. David Hunter, et al., International Environmental Law and Policy, p. 306 (2d. ed., Foundation Press 2002). 9. Paul Szasz, International Norm Making, in Edith Brown Weiss, Ed., ENVIRONMENTAL CHANGE IN INTERNATIONAL LAW (1995), as quoted in Id, p. 307. 15. Shabtai Rosenne, Practice and Methods of International Law 69 (1984), as quoted in Hunter, Id, p. 317. 20. Jonathan Charney, Universal International Law, 87 Am.J.Int’l.L. 529, at 543-48 (1993), as quoted in Hunter, supra, p. 322. 23. Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3 Ind. J. Global Legal Stud. 26. Amedeo Postiglione, The Global Environmental Crisis: The Need for and International Court of the Environment, ICEF INTERNATIONAL REPORT at 33-36 (1996), quoted in Hunter, supra, p. 495. 31. L. Henkin, “The Human Rights Idea”, The Age of Rights (reprinted in Henkin, et al., Human Rights, 1999), as presented in Donoho, supra, p. 14-16. The Right to Life, p. 310 (The Hague, 1983), quoted in Hunter, supra, p. 1297. 39. Black’s Law Dictionary, p. 864. 48. New York Law Journal, January 1993, Friday, ENVIRONMENTAL LAW, p. 3. 60. Roland Huber, International Environmental Law Seminar: Human Rights and the Environment, p. 24, in Donoho, Douglas L., INTERNATIONAL HUMAN RIGHTS (printed by the Shepard Brad Law Center, Nova Southeastern University, 2002).

International Law And The Right To A Healthy Environment As A Jus Cogens Human Right