Principles of International Environmental Law

By Philippe Sands | Go to book overview

4

International law-making and regulation

Introduction

R. Hahn and K. Richards, ‘The Internationalisation of Environmental Regulation’,
30 Harvard International Law Journal 421 (1989); O. Schachter, ‘The Emergence
of International Environmental Law’, 44 Journal of International Affairs 457 (1991);
W. Lang, ‘Diplomacy and International Environmental Law-Making: Some Ob-
servations’, 3 Yearbook of International Environmental Law 108 (1992); U. Beyerlin
and T. Marauhn, ‘Law Making and Law-Enforcement in International Environ-
mental Law after the 1992 Rio Conference’ (Berichte 4/1997); P. Sands, ‘The New
Architecture of International Environmental Law’, 30 RBDI 512 (1997); A. Ahmad,
Cosmopolitan Orientation of the Process of International Environmental Lawmaking:
An Islamic Law Genre
(2001).

This chapter identifies the sources of international legal obligation in the field of the environment, and the regulatory techniques used to give effect to these obligations. International law is traditionally stated to comprise ‘the body of rules which are legally binding on states in their intercourse with each other’.1 These rules derive their authority, in accordance with Article 38(1) of the Statute of the International Court of Justice (ICJ), from four sources: treaties, international custom, general principles of law, and subsidiary sources (decisions of courts and tribunals and the writings of jurists and groups of jurists). It is to these sources that the ICJ would look in determining whether a particular legally binding principle or rule of international environmental law existed. The list of sources identified in Article 38(1) does not wholly reflect the sources of obligation, broadly understood, which have arisen in international environmental law. A list of sources of international environmental law is more properly reflected in the list proposed by the International Law Commission (ILC) in 1989, which included those identified in Article 38(1) as well as binding decisions of international organisations, and judgments of international courts or tribunals.2

1 Oppenheim, vol. 1, 4.

2 International Law Commission, Draft Articles on State Responsibility, Part 2, Art. 5(1), ‘Report of the ILC to the United Nations General Assembly’, UN Doc. A/44/10, 218 (1989).

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