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
Date Written: May 3, 2018
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: Suggested Citation