Reasoning Up to Human Rights: Environmental Rights as Customary International Law

in The Human Right to a Healthy Environment (John Knox and Ramin Pejan, eds. 2018)

15 Pages Posted: 4 May 2018

See all articles by Rebecca M. Bratspies

Rebecca M. Bratspies

City University of New York - School of Law

Date Written: May 3, 2018

Abstract

This essay argues that environmental rights have become customary international law. Using the development of the obligation to conduct an environmental impact assessment (EIA) as an example, it posits that customary international law emerges from the near-universal environmental obligations states impose on themselves through their own municipal law. Under such an approach, the consistency of environmental principles enshrined across state regulatory law becomes evidence of both state practice and opinio juris in the form of the environmental obligations that states consider themselves bound to respect and uphold. Analytically, this approach bears some resemblance to a more common form of “reasoning up” — which involves staking a claim that environmental rights have become customary international law on the ubiquity of environmental provisions in state constitutions. In short, this pieces posits that “reasoning up” from state municipal law demonstrates that key principles have crystalized into customary law about the nature of state obligations in the environmental context.

Keywords: customary law, climate change, human rights, environment, EIA, international law, opinio juris, state practice, constituion

JEL Classification: K32, K33

Suggested Citation

Bratspies, Rebecca M., Reasoning Up to Human Rights: Environmental Rights as Customary International Law (May 3, 2018). in The Human Right to a Healthy Environment (John Knox and Ramin Pejan, eds. 2018). Available at SSRN: https://ssrn.com/abstract=3172991

Rebecca M. Bratspies (Contact Author)

City University of New York - School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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