1270 __ ENVIRONMENTAL INSTITUTIONS AND GOVERNANCE _CH.18 4, More speciically tasked IGOs? If you conclude that the comprehensive [GO suggested in Note 3 is too ambitious or unattractive for other reasons, would i be sensible to create one or more environmental [GOs that would deal with the following: All atmosphere related matters, such as ozone-layer protection; greenhouse gases; air pollution? All ocean and regional sea-rolated matters? All chemical-related matters? All UN System environmental activities? Whether or not such clusters are ereated, i UNEP or another organization best positioned to exercise leadership to improve coordination and governance? UNEP? 15. Group exereise 1. Divide the class into small groups and have each group devise a stratzgy with respect to the opening chemicals problem, involving the institutions and mechanisms deseribed. in this chapter. Compare the strategies when each group reports back to the class. 6. Group exercise 2. Divide the class into small groups and have each group debate within itself the iseve of whether there should be a World Environment Organization, and then report back to the class. CHAPTER 19 ———-_SaSa]# THE INTERNATION, (AL LEGAL SYSTEM AND ENVIRONMENTAL PROTECTION imental; and norms often iat their application to their application to non- Shy econ of ar ony international awe a ‘issues must be consistent wen linen, Dacering ie a7‘Tie INTERNATIONAL LEGAL SYSTEM AND 1272 ENVIRONMENTAL PROTECTION, cH.19 A. INTERNATIONAL LAW OVERVIEW OF THE INTERNATIONAL LEGAL SYSTEM ‘The international legal system governs the interaction of nation. States, of which approximately 200 exist in the second decade of the twenty-first century. Though precursors of such a system can be found as far back as the reach of recorded history, for example, in respect to the city-states in Mesopotamia, states in classic Greece and the Hindu states of ancient India, the current system originated in seventeenth-century After a relatively long static period, the international legal system ince the end of World War II seen rapid evolution. In particular, the system has been broadened to (1) include States all over the world, including many that only achieved independence after World War Il, (2) regulate the rights and obligations of actors ather than States, such as international organizations, transnational corporations, and. even individuals; and (3) cover new fields of activities such as those in space, new concerns such as those for the protection of the environment, and ‘even old ones that previously had been considered to be exclusively: domestic, such as human rights. Finally, while through the end of the nineteenth century relations between and among States were for the most part direct, in recent years these increasingly take place within, or are ‘mediated by, international intergovernmental organizations (IGOs) and are influenced by myriad non-governmental organizations (NGOs). ‘The international legal system can to some extent be analogized to the domestic legal system of a State, though in doing so one must be conscious of important differences. In particular, the international legal system, for most purposes, does not have a lawmaking authority to promulgate international norms of the type common to domestic legal systems, there is no overarching adjudicative body with compulsory and binding jurisdiction to settle disputes regarding alleged violations of international law, and there is no centralized enforcement authority to cenforee international law. In general, it may be said that the international legal system is largely decentralized in character, in contrast, to domestic legal systems. On the other hand, there are international laws or norms, as well as an international norm-making or legislative process, which are examined in section A below; there are _ processes for avoiding and, if necessary, resolving international disputes, examined in section B; and there are, albeit only rudimentary and senerally very weal, devices to further compliance with international forms, examined in Chapters 4 and 5. These quasi-legislativ, judicial and quasi-judicial, and quasi-executive functions are increasingly being carried out by 1G0s, as is described in Chapter 18. In view of the. SECA INTERNATIONAL Law. 1273 SEGA __inrerwamionanLaw 1278, Gifferences between the two systems, it may seem surprising that the international legal system is, for the most part, quite effective, Extreme cases garner headlines but the myriad interactions between States every ay continue to proceed normally, usually without notice. Finally, it should be noted that it is somewhat of a misnomer to speak of an international legal system. Instead, it is necessary to recognize that there are a number of different aystems, which have at best a partially hierarchical relationship. Thus there is a universal system, for the most part within or related to the United Nations (UN). ‘This chapter largely concentrates on this system, However, there are also regional systems (such as those of Africa and the Americas, and several ‘overlapping ones in Europe), sub-regional ones (euch as those of Central America, the Caribbean, the Nordic States, southern African States, members of the Association of Southeast Asian Nations, etc), and bilateral ones. There are also systems and corresponding IGOs that are primarily economic (e.., the Organisation for Economic Co-operation and Development) or functional (eg. the International Whaling Commission) oF political (e.g, the League of Arab States) rather than geographically based. 2, GENERAL CONSIDERATIONS International law is the se: of norms that governs the interaction between nation-States. As is described at greater length below, international law is largely though not exclusively made by States and reflects their will and consent. However, the obligations and rights set out that law govern not only those States but also the establishment and functioning of international governmental (1GOs) and non-governimental organizations (NGOs) and, toa lesser extent and usually only mediatively through the ‘Staves of their nationality, corporations, ships and individuals As pointed out above in connection with the international logal system, international law may be worldwide (also referred to as “global”, “general” or “universal"), regional, subregional, restricted multilateral, of bilateral, Because the international system is hierarchical oly to. most limited extent, it cannot be assumed that norms of a broader scope necessarily supersede or govern those of a lesser scope. It is for each State to see to it that new norms it consents to will not be inconsistent with a Previous one by which itis bound and which it eannot change. ‘As is true of domestic or “municipal” law (as the internal law of States is called in international law), there are many different types of international law—but these generally do not correspond to the various forms of domestic law. The most important of these types are listed in Article 38(1) of the Statute of the International Court of Justice (ICJ or World Court). However, that listing was established roughly century"Tue INTERNATIONAL LEGAL SYSTEM AND 14 ENVIRONMENTAL PROTECTION _ cH.19 ago (for the predecessor of the IC3J, the Permanent Court of International ‘Sustice) and it is generally recognized that the list is no longer complete. Full agreement as to the components of an updated list does not eurrently sexist. ‘The following types of law and related commitments are described and characterized below: (1) customary law; (2) international agreements, often referred to as “treaties” but which also have many other names such ‘as “conventions” (hence the term “conventional law"); (3) general principles of law recognized by the world’s organized legal systems; (4) international administrative law; (6) declarations of IGOs; (6) legally binding unilateral ceclarations; and (7) non-legally binding voluntary commitments and other forms of “soft law". There are various means of establishing or determining the existence of international lav, some of which are also listed in Artiele 38(1) of the Statute ICJ. These means include the decisions of 1GO organs; judicial and arbitral decisions; and the teachings of recagnized publicists. These are discussed below in part Ag@. ‘The diverse types of international law that have just been mentioned cean be characterized in several overlapping ways: (1) Some types of international law can be found in black-letter form, i.e, as written texts (in particular, treaties and many forms of soft law, such as decisions ef IGO organs and certain rules, guidelines, ete. generated by them), while others have no precise, definitive statements (uch as customary law and general principles). ‘This distinction resembles that in domestic law between, on the one hand, statutes and regulations and, on the other, judge-made common law. (@) Some legal cbligations, particularly those originating in cortain types of treaties, are merely reciprocal—i.e. they exist between pairs o specific groups of Slates (¢., the Parties to bilateral agreements or to many multilateral agreements that basically establish networks of bilateral relationships, such ay those concerning trade or diplomacy). Other legal obligations are characterized as erga omnes, ie., they run from States bound by these obligations to all other States or rather to the world (or the regional) community as a whole. Although certain environmental norms, stich as those relating to a particular river that flows along or through a boundary between two States, fall into the first category, those environmental obligations that relate to a global commons (Guch as the high secs oF Antarctica) are erga omnes. (@) Although the ereation of international law depends on the will and sometimes on the continuing consent of States, it is increasingly recognized that certain norms—usually of customary law but also Geriving from important treaties like the UN Charter or even from: ‘general principles—may have or gradually aequire such a compelling. Universal respect that States cannot be permitted to change or super SecA INTERNATIONAL LAW 1275 —— —— sheet ther, oll pow ceasing aster ani ace ring a eee lee as se cmns ey hl i Sl ti and ee ery me eo Soler at eke Oh ta aires ae ee eas 3. CUSTOMARY LAW Customary international law consists of the set of norms derived from the actual pracive of States undertaken by these States inthe bell that such practices are required by international law. To Mentty such norms itis therefore neceaary to study how States (Le, their official organs, which include exeative, legislative, and judicial ones) actually behave. Although it is not necessary to document the practice of ll Sates, a customary norm is one that can be shown to be generally followed (worldwide in respect to universal customary law, oF regionally or sub-egionally in respect to geographically restricted customary law) Out ofa sense of opal obliga:ion bythe States concerned It can be seen that this no easy task and not one that is likey to result in unambiguous formulations. Consequently, to the extent that Senior court in particular the World Cour) of some ether tebunal Getermines the existence (or not) of some alleged customary norm, sich determinations may constitte persuasive evidence forthe existence of ‘the norm. Similar eect may be atribted t a determination by group ‘of recognized legal scholars and other experts (each as the members ofthe International Law Commision CLC), who serve in their individual 1S Aries 68, 64 and 71 ofthe 1000 Vienna Convention onthe Law o ret 22,1068, 16S UTS. Si, SLM 7 Geen ns ortreien ay