International standard-setting

4.1 The traditional sources of international law

The canonical statement of the formal sources of international law – Article 38 of the International Court of Justice Statute⁵¹ – identifies three sources of

interna-ary 1971, in force 21 December 1975, 11 International Legal Materials (1972), 963, <http://www.ramsar.

org>.

49 See Peter J. Spiro, ‘New Global Potentates: Nongovernmental Organizations and the “Unregulated”

Marketplace’,18 Cardozo Law Review (1996) 957–969 at 964.

50 See <http://www.fsc.org>.

51 Statute of the International Court of Justice, annex to the Charter of the UN, available at <http://www.

icj-cij.org/documents/index.php?p1=4&p2=2&p3=0> (visited 16 August 2011).

tional law: treaties, custom, and general principles. These sources are treaties, which are explicit agreements in writing; custom, which is generated through the regular practice of states, engaged in out of a sense of legal obligation;⁵² and general princi-ples, which are norms that reflect fundamental propositions of law, shared by legal systems around the world.

The central difference between treaties on the one hand and custom and general principles on the other is that treaties are the product of a purposive process of ne-gotiation, whereas customary norms and general principles emerge through more diffuse processes. All three are typically classified as ‘hard law’; in contrast to a wide variety of norms which do not qualify as ‘legal’ in character, including resolutions of international organizations, conference declarations, and business codes of conduct.

The UN General Assembly, for example, lacks legislative authority, and so its resolu-tions have the status of recommendaresolu-tions. For the same reason, neither the Stock-holm Declaration nor the Rio Declaration on Environment and Development are in themselves legal in nature; both would have that status only if they were to be incorporated into a treaty, or were deemed to constitute norms of customary inter-national law. Business codes of conduct are developed by non-state actors, without any formal lawmaking authority at all.

4.2 The traditional sources in more detail: treaties

From the inception of international environmental law, treaties and other forms of negotiated agreements have been the predominant means of achieving international cooperation. According to one recent compilation, states have negotiated more than 1 000 multilateral environmental agreements and 1 500 bilateral instruments on a wide variety of subjects: in no particular order, protection of the stratospheric ozone layer, prevention of dangerous anthropogenic climate change, mitigation of acid rain, control of hazardous waste exports, regulation of trade in wildlife, protection of wetlands, prevention of oil pollution, and many others.⁵³ Indeed, in the mid-1990s, environmental treaties were proliferating so rapidly that some worried about ‘treaty congestion’.⁵⁴

Negotiated agreements offer several advantages over more informal mechanisms of international cooperation, in that they enable states to address issues in a purposive, rational manner; they promote reciprocity by allowing states to delineate precisely what each party is expected to do; they provide greater certainty about the applicable norms than non-treaty sources of international law, because of having a canonical

52 The rules of diplomatic immunity, for example, evolved over centuries through the repeated interaction of states.

53 Ronald B. Mitchell, International Environmental Law Database Project, available at <http://iea.uoregon.

edu/page.php?file=home.htm&query=static> (visited 16 August 2011).

54 See, for instance, Edith Brown Weiss, ‘International Environmental Law: Contemporary Issues and the Emergence of a New World Order’, 81 Georgetown Law Journal (1995) 675–693 at 697–702.

form; and, finally, they allow states to tailor a regime’s institutional arrangements and mechanisms to fit particular problems.

Traditionally, treaties were comparatively static arrangements that memorialized the rights and duties of the parties as agreed at a particular point in time. Today, envi-ronmental agreements are usually more dynamic arrangements, which establish on-going regulatory processes. The result is that, in most environmental regimes, the treaty text itself represents simply the ‘tip’ of the normative ‘iceberg’. The majority of the norms are adopted through more flexible techniques, which allow interna-tional environmental law to respond more quickly as new problems and new knowl-edge emerge.

One approach, which has been used extensively in international environmental law, to building treaties gradually is the ‘framework convention – protocol approach’.

Initially, states negotiate a broad framework convention, which serves to establish the basic architecture of the regime; including, for example, the regime’s objective, prin-ciples, basic obligations, and institutions. Thereafter, protocols are negotiated which build upon the parent agreement through the elaboration of more specific (and costly) commitments.

The framework convention – protocol approach has several rationales. Firstly, it al-lows states to address problems in a step-by-step manner rather than all at once.

Secondly, states tend to be more willing to join a framework convention because it does not contain stringent obligations; as a result of which they can begin to address a problem without waiting for a consensus to emerge on appropriate response meas-ures. For example, when both the Convention on Long-range Transboundary Air Pollution (LRTAP)⁵⁵ and the Vienna Ozone Convention were adopted, many states remained unconvinced of the need for action. Nevertheless, even such sceptical states were willing to acquiesce in the adoption of these conventions since the conventions did not commit their parties to taking any specific actions.

In addition, although framework conventions are themselves weak, they are able to create ‘positive feedback loops’ which facilitate the deepening of the regime through the adoption of protocols which contain specific substantive commitments. Firstly, the framework convention can help reduce uncertainties and produce agreement about the relevant facts – about who is doing what to whom – by requiring states to submit national reports and by encouraging scientific research and assessments. The institutions established by the framework convention often play a catalytic role in this process by collecting data, providing technical assistance, and issuing reports.

Secondly, the framework convention (and, in particular, the regular meetings of the parties) can help to generate normative consensus by providing ongoing fora for

55 See supra note 38.

discussion and negotiation, serving as focal points for international public opinion, and building relationships of trust amongst participants. Finally, when states do eventually decide to act, framework conventions increase their capacity to do so by ensuring that basic institutions and decision-making processes are in place. The theory is that once a framework convention is adopted, the international lawmaking process will begin to take on a momentum of its own. States that were initially re-luctant to undertake substantive commitments, but which acquiesced in the seem-ingly innocuous process set in motion by the framework convention, are likely to feel increasing pressure not to fall out of step as that process gains momentum.

4.3 The traditional sources in more detail: custom and general principles In contrast to treaties, the two main types of non-treaty norms – customary law and general principles – are not created through purposeful acts of law-making and do not possess canonical forms. Instead, they emerge through less well-defined, more informal processes – and thereby raise a number of theoretical puzzles. Such puzzles include questions such as: how do non-treaty norms emerge; to what extent, for example, do customary norms emerge as a result of calculations by states of their rational self-interest; to what extent are they imposed by powerful states; and to what extent do they reflect psychological needs for order and regularity? Further, do non-treaty norms have any effect on behavior, and, if so, how and why? Further, what does it mean to say that a norm is part of customary international law or is a gen-eral principle of law; and where does the ‘binding’ character of these norms come from? Finally, should non-treaty norms be followed; are they legitimate sources of obligation; and do they have any claim to obedience?

Although the concept of customary international law is often viewed as mystifying, the emergence and application of social norms through informal, decentralized proc-esses is in fact a commonplace occurrence. Language provides a good illustration of this, since every time we speak we apply a complex set of customary rules of grammar and usage – rules that have not been legislated or enforced by any centralized body but, instead, have emerged and evolved through the regular practice of language-users and are enforced through a diffuse set of social sanctions.

According to the orthodox account of customary international law, the customary law-making process involves two elements: firstly, consistent state practice; and, secondly, a sense of legal obligation (or opinio juris). When many states can be ob-served to have behaved in a consistent manner for a significant period of time, and when this consistent, long-standing practice manifests a belief about what the law requires, then customary international law can be said to have been created.

4.4 Soft law

Conference resolutions, business codes of conduct, and the like are not legal norms.

Instead, they are usually classified as ‘soft law’. Like hard law, they are normative:

they are intended to guide or influence behavior by providing reasons for actions to be taken. The fact that the UN General Assembly, for example, adopted a resolution calling for a moratorium on high seas driftnet fishing⁵⁶ can be seen as a reason to stop using driftnets. The resolution provides a standard of evaluation. Compliance serves as a justification for one’s own actions, and violation is a ground on which to criticize others. Moreover, like hard law, these non-legal instruments are social creations; be-ing the products of identifiable processes of norm-makbe-ing. From this perspective, soft law does not simply represent the absence of law; rather, it represents a sort of

‘legal purgatory’. Unlike hard law, however, soft law does not create legally-binding obligations.