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 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. (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]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 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 [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)
IV. 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?
In a separate opinion to the Case Concerning the Gebecikovo-Nagymaros Project (Hungary v. Slovakia), Judge Weeramantry, the Vice President of the ICJ, expounded on the legal basis for sustainable development as a general principle of international law. In the process, he concludes that environmental protection is a universal erga omnes legal norm that is both CIL as well as a general principle of law per se. In Gebecikovo, ostensibly to have been decided upon the merits of the treaty governing the building of power plants along the Danube, as well as by international customary law, the ICJ held that the right to development must be balanced with the right to environmental protection by the principle of sustainable development. Even in the absence of a specific treaty provision, the concept of sustainable development has become a legal principle that is "an integral principle of modem international law". (40)
Sustainable development is also recognized in State practice, such as the Dublin Declaration by the European Council on the Environmental Imperative. (41) As such, sustainable development has in effect been raised to the level of CIL.
For example, the Martens Clause of the 1899 Hague Convention Respecting the Laws and Customs of War on Land has been interpreted in 1996 by Judge Shahabudeen of the ICJ as providing a legal basis for inferring that general principles rise above custom and treaty, having their basis in "principles of humanity and the dictates of public conscience". (42) According to Weeramantry, "when a duty such as the duty to protect the environment is so well accepted that all citizens act upon it, that duty is part of the legal system in question... as general principles of law recognized by civilized of nations." (43)
Sustainable development acts as a reconciling principle between economic development and environmental protection. Just as economic development is an inalienable right of States' self-determination, environmental protection is an erga omnes obligation of all States for the benefit of the global commons that all share. "The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community", and not just by developing countries. (44)
Drawing upon the rich history of diverse cultures' legal systems and what he calls "living law", Judge Weeramantry points out that traditional respect for nature has been a guiding moral and legal principle for economic development throughout history. The ICJ has also recognized these principles in such previous decisions as Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) in 1972. (45) Judge Weeramantry concludes that the "ingrained values of any civilization are the source from which its legal concepts derive... [and that environmental protection is] among those pristine and universal values which command international recognition." (46)
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." Art. 3. It was modeled on the U.S. Bill of Rights and the American Declaration of Independence. This was echoed in the binding ICCPR ("Every human being has the inherent right to life.", ICCPR, Art. 6(1) (1966)), which the U.S. has ratified, and the American Convention on Political and Civil Rights of the Inter-American System (which draws direct connections between human rights and environmental rights).
The second generation of human rights emerged with the Economic, Social and Cultural (ECOSOC) Rights developed in such treaties as the International Covenant on Economic, Social and Cultural Rights (ICESCR; which the U.S. has not ratified), and many foreign State's Constitutions (e.g., Germany, Mexico, and Costa Rica). These include the right to free choice of work, to (usually free) education, to rest, leisure, etc. Highly complied with in Europe, these rights have additionally been expanded by the EU in their European Social Charter (1961) creating much legislation for the protection of workers, women, and children.
The third and current generation of human rights has emerged from the Eco-Peace-Feminist Movement. These include the Right to Development, the Right to A Safe Environment and the Right to Peace. In essence, this third generation of rights addresses the problem of poverty as a social (and hence legally redressable) ill that lies at the core of environmental problems and violations. The "environmental justice" movement considers cases that demonstrate that environmental pollution is disproportionately prevalent in minority communities, whether at a local or international level. Authors John Cronin & Robert F. Kennedy, Jr., have explicitly entitled their study of environmental pollution along the Hudson River The Riverkeepers: Two Activists Fight to Reclaim Our Environment as a Basic Human Right. (47) This predominantly U.S. movement focuses on "environmental racism" as a means for seeking remedies or the disproportionate pollution of minority communities as violations of current civil rights legislation by "exploring] the use of the nations' environmental laws to protect the rights of the poor." (48)
V. RECOGNITION, COMMITMENT AND ENFORCEMENT OF A RIGHT: THE MONTREAL PROTOCOL AS A MODEL FOR CONSENSUS BUILDING The key mechanisms for establishing binding international law are recognition of an obligation or right, commitment to its protection, and effective enforcement methods. The Montreal Protocol on Substances that Deplete the Ozone Layer is the "most important precedent in international law for the management of global environmental harms." (49) It serves as a model for many other environmental concerns that require decision-making in the face of scientific uncertainty, global non-consensus, and high harm-avoidance costs. It was the first international "precautionary" treaty to address a global environmental concern when not even "measurable evidence of environmental damage existed." (50) Although ozone depletion by chloro-fluorocarbons (CFCs) and other ozone depleting substances (ODSs), and the attendant harms of overexposure to harmful ultraviolet radiation, had been suspected by scientists in the early 1970s, it was not until 1985 and the Vienna Convention for the Protection of the Ozone Layer that international action was taken to address the problem.
THE VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE LAYER At the time of the Vienna Convention, the U.S. represented over 50% of the global consumption of CFCs in a $3 billion market for aerosol propellants alone. Overall, CFC products represented a $20 billion market and about a quarter of a million jobs in America alone. (51) The Clean Air Amendments of 1977 and the 1978 EPA ban on all "non-essential" uses of CFC in aerosol propellants was quickly followed internationally by similar bans by Sweden, Canada and Norway. (52) These actions were a direct response to consumer pressure and market demands by newly environmentally-conscious consumers.(53) Incentives were also provided to the developing countries so that they could "ramp up" at reasonable levels of reductions. (54)
Creative ratification incentives included requiring only 11 of the top two-thirds of CFC producing countries to ratify and bring the treaty into force. (55) As a result of such flexibility, innovation, consensus and cooperation, the Montreal Protocol has been hailed as a major success in international diplomacy and international environmental law. Today almost every nation in the world is a member (over 175 States).
THE LONDON ADJUSTMENTS AND AMENDMENTS OF 1990 By 1990 scientific confirmation of global warming and the depletion of the ozone layer led to the London Adjustments and Amendments. Again, U.S. companies such as Dupont, IBM and Motorola reacted to massive negative media attention and promised to halt complete production by 2000.
Non-compliance procedures were made even more user friendly and no sanction for non-compliance was initiated against a country that was failing to reach quotas while acting in good faith. Technology transfer was made in a "fair and favorable way", with developed countries taking the lead in assisting developing countries reach compliance. (56) The U.S. instituted "ozone depletion taxes" which did much to get more comprehensive compliance, as well as promoting research into CFC alternatives. (57) To emphasize the vast enforcement mechanisms employed, consider that by early 1998 the U.S. Justice Department had prosecuted 62 individuals and 7 corporations for the illegal smuggling into the emergent CFC black markets. Despite an international crackdown by the FBI, EPA, CIA, and Interpol in the global police effort Operation Breeze, 5 to 10 thousand tons are smuggled annually into Miami alone, second only to cocaine smuggling. (58) In 1992 the Copenhagen Amendments required every State party (practically the whole world) to institute "procedures and institutional mechanisms" to determine non-compliance and enforcement. (59)
VI. CONCLUSION: CRITICAL WEAKNESS OF THE CURRENT SYSTEM AND THE LEGAL CONSEQUENCES OF THE RIGHT TO A HEALTHY ENVIRONMENT AS A BASIC HUMAN RIGHT
The critical weaknesses of the existing system include self-serving pronouncements by non-complying States, lack of effective enforcement mechanisms, political limitations such as State sovereignty and the "margin of appreciation", and the lack of universal consensus on basic human rights terminology and their enforcement. 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. Currently, unless a State commits such outrageous acts on a mass scale that affects world peace, such as in Yugoslavia and Rwanda, it can often evade its responsibilities under international human rights treaties.
There are few international agreements that admit of universal jurisdiction for their violation by any State in the world. All CIL, however, is by its very nature prosecutable under universal jurisdiction. "Crimes against humanity" (e.g., War Crimes, genocide, and State-supported torture) are universally held to be under universal jurisdiction, typically in the International Court of Justice, ad hoc war crime tribunals, and the new International Criminal Court.
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. At the treaty level, the protection of the environment appears to be of paramount importance to the international community. At the level of CIL, there is much evidence that the right to a healthy environment is already an internationally protected right, at least as far as trans-boundary pollution is concerned. In any case, it seems to be universally held that it should be protected as a right. The impression is that there is an unmistakable consensus in this regard. "Soft law" over time becomes CIL.
The U.N. World Commission on Environment and Development released the Earth Charter in 1987. It has yet to be fully implemented on a global scale. Its broad themes include respect and care for the environment, ecological integrity, social and economic justice and democracy, nonviolence and peace. (60) The argument can be made that by now, protection of the environment has reached the threshold of Customary International Law. Whether the nations of the world choose to thereafter recognize the right to a healthy environment as a jus cogens human right will depend on the near universal consensus and political will of most of the nations of the world. 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. It will take the cooperation of all nations to ensure that this becomes a non-derogable, unalienable right and recognizing it as essential to the Right to Life.
