Sources of International Environmental Law 3

Sources of International Environmental
Law
Dr. Gorashi M. Kanoan

Outline of Presentation
1. Title: Sources of International Environmental Law
2. Outline of Presentation
3. Introduction
4. Soft law and hard law
5. Treaties
6. Customary law and general principles
7. Resolutions and Declarations issued by international
institutions and internatinal conferences.
Introduction
 This lecture identifies the soruces of international legal
obligations in the field of the environment. International law is
traditionally stated to comprise «the body of rules which are
legally binding on states in their intercourse with each other».
These rules derive their authority, in accordance with Article 38
(1) of the Statute of the International Court of Justice from four
sources: treaties, international custom, general principles of
law, and subsidiary sources (decisions of courts and tribunals
and the writings of jurists).
 A list of sources of international environmental law is more
properly reflected in list proposed by the International Law
Commission in 1989, which included those identified in Article
38 (1) as well as binding decisions of international
organizations and judgments of international courts or
triibunals.
Soft Law and Hard Law
 The term “sources of law” can mean two different things: On

one hand it can signify the institutions which create legal rules
i.e., national. On the other hand , it can be understood in a
formal sense, meaning the texts or instruments where legal
rules can be found such as laws of states, treaties, customary
law, general principles, judicial decisions in the environmental
field.
 International institutions have developed many texts by
convening international conferences, such as the Stockholm or
the Rio Conference. These texts are called “soft law”. Treaties
and customary law are “hard law” because of their obligatory
character, which establish legally binding obligations.
 Although the rules of “soft law” are not binding per se but
they played an important role: They point to the likely future
direction of formally binding obligations by informally
establishing acceptable norms of behavior. Such acceptance
and compliance with non-obligatory rules can lead to the
creation of customary law.
Treaties
• Treaties (also referred to as conventions, accords, agreements and protocols) are the
primary source of international legal rights and obligations in relation to environmental
protection. A treaty can be adopted bilaterally, regionally and globally and is defined by
the 1969 Vienna Convention on the Law of Treaties as “an international agreement
concluded between states in written form and governed by international law”. At the
heart of the definition is the idea that a treaty is intended to create international legal
rights and obligations between the parties.
• The number of treaties relating to the environment has increased dramatically in the past
two decades. UN Convention on the Law of the Sea, the 1992 Convention on Biological
Diversity (CBD), the 1992 Convention on Climate Change (UNCCC) and the 1997 Kyoto
Protocol are just a few examples.
• Treaties provide expressly for the circumstances in which they will enter into force. This
is usually upon ratification by a certain number of states. In the field of environmental
law, global treaties have tended to require a low number of ratifications for entry into
force. The CBD and UNCCC, respectively require the ratification of thirty and fifty states.
• Most recent international environmental agreements do not allow reservations. The
general tendency to prohibit the use of reservations is intended to avoid a proliferation of
bilateral legal relations. The reason for this in the environmental field, is that many of
these environmental treaties are framework agreement, providing general structures and
guidelines rather than specific commitments.
• Reservations and other forms of opt-out are usually permitted in respect of secondary
legislation.
Customary Law and General Principles
 Another source for international law is customary law. The consistent behavior of
states over time creates evidence of a general practice accepted as law. The fact that
states accept it as law shows the conviction that when they act in conformity with such
rules they apply existing law. The expression of an acceptance by states can substitute
for the general practice shown by their constant behavior.
 The repetitions of a given principle in a series of international instruments can
recognize the emergence of an international customary law rule. Such repetitions can
take place in binding as well as non-binding instruments.
 Judicial decisions can play an important rule in the development or recognition of
emerging customary law rules. The fundamental principle in bilateral environmental
relations goes back to an arbitral award given in 1941 in the Trail Smelter case. The
award declares that no state has the right to use or to permit the use of its territory in
such a manner as to cause injury by fumes in or to the territory of another or
properties of persons therein. The principle was introduced into the Stockholm
Declaration which expanded it, affirming that states have the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond national jurisdiction.
Customary law and general principles-
cont
• The principle is included in a series of international instruments both binding and
non-binding and is also repeated in the 1992 Rio Declaration on Environment
and Development and approved in the advisory opinion of the ICJ when asked by
the UN General Assembly on the compatibility of the threat or use of nuclear
weapons with the relevant principles of international law. Examining the
applicable rules, the court states that the principle is now part of international
customary law.
• A characteristic example of the emergence of an international customary law is
that of the duty of the state to inform other countries of environmental
emergencies which can threaten them. The principle was first formulated by a
non-binding text adopted by a regional organization of industrialized States, the
Organization for Economic Cooperation and Development. Many mandatory texts
also include it, in relations between neighboring states concerning pollution of
inland waters. The 1982, Convention on the Law of the Sea, in its Article 192
provides “When a State becomes aware of cases in which the marine environment
is in imminent danger of being damaged or has been damaged by pollution, it
shall immediately notify other States if deems likely to be affected by such danger,
as well as the competent international organization”.
• The same principle applies with regards of air pollution, concerning information
on nuclear accidents capable of causing damage in other countries on nuclear
accidents. It is also expressed in the Rio Declaration.
Resolutions and Declarations issued by
International Conferences
• Resolutions issued by international organizations and declarations of
international conferences can be considered as constituting a new source of
law. The first can be binding so that they create “hard law” for the member
states of the concerned organization. If they have no binding character, they
are generally called recommendations and constitute “soft law” principles.
Declarations of international conferences fall into the second category.
However, they can contribute to the development of customary international
environmental law so that their importance should not be underestimated.
• One of the principal characteristics of international organizations is that very
few have the power to adopt legally binding texts and only three among
them concerned with environmental proctection has power to adopt legally
binding text: UN Security Council, the Organization for Economic
Cooperation and Development and the European Union.
• Non- binding resolutions issuing from international conferences: normative
recommendations, declaration of principles and programmes of action.

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Sources of International Environmental

Dr. Gorashi M. Kanoan

 The term “sources of law” can mean two different things: On

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