The Right To A Clean Environment As A Jus Cogens Norm

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C. Vignesh, LL.M., University of Madras

ABSTRACT

This paper argues that the right to a clean, healthy, and sustainable environment has attained, or is rapidly crystallizing into, the status of a peremptory norm (jus cogens) under general international law. Drawing on the Vienna Convention on the Law of Treaties (1969), the International Law Commission's Draft Conclusions on Peremptory Norms of General International Law (2022), United Nations General Assembly Resolution 76/300 (2022), and the International Court of Justice's Advisory Opinion on Climate Change Obligations (2024), this paper traces the normative evolution of environmental rights from treaty-based obligations to a hierarchically superior rule of the international legal order. The analysis demonstrates that the right meets the established criteria for jus cogens status: widespread and representative acceptance by the international community, the character of non-derogability grounded in the irreversibility of environmental harm, and an indissoluble link to pre-existing peremptory norms including the right to life and the principle of human dignity. The paper further addresses objections grounded in indeterminacy, jus cogens inflation, and the development-environment tension, and concludes by examining the legal consequences that would flow from formal recognition, including treaty invalidity, erga omnes obligations, and transformative implications for international climate litigation and investor-state arbitration.

Keywords: Jus cogens · peremptory norms · right to a clean environment · climate change · erga omnes · human rights · international environmental law.

808. THE RIGHT TO A CLEAN ENVIRONMENT AS A JUS COGENS NORM.pdf

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