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Issues in international environmental law
2.
International norm-making
3. Changing requirements for international
information
4. Emerging principles and rules for the
prevention and mitigation of environmental harm
5. State responsibility, liability, and
remedial measures under international law: new criteria for
environmental protection
6. Law and global environmental management:
some open issues
7. The legislation and implementation of
international environmental law and the third world: the example
of China
A. The international legislative process
B. Steps in the treaty-making process
C. The creation of customary law
D.
The creation of soft law
E.
Concluding remarks
Annex
Notes
Paul C. Szasz
A. The international legislative process
Fatalists may attribute it to serendipity and mystics to the Gaia hypothesis, but when the world community, due to its increasing interdependence, required an ever greater number of important international norms, the international legislative process, i.e. the process for creating these norms, accelerated its output enormously - indeed to the point where both those who are charged with implementing these norms and those who merely must keep track of them threaten to be overwhelmed. However, a glance around the international legal landscape into other areas, such as the settlement of disputes and the enforcement of rules and decisions, indicates that in those areas the demonstrated need has not translated itself into corresponding solutions, suggesting that there may be structural reasons why one process - and that the least-known one - is more fruitful than the others.
Further reflection will suggest that, peculiarly, the international legislative process is as productive as it is - depending on how one counts, there are well over 1,000 multilateral treaty instruments, to which several score are being added each year1 - precisely because it is by its very nature an imperfect process. That is, not only does it share the well-known multiple weaknesses of most municipal lawmaking: it is often slow and delay-prone; politically necessary or convenient compromises may reduce the final product to a low common denominator; other distortions are introduced by special interests or the vagaries of unduly influential participants, and there are damaging cross-connections to other, irrelevant issues - in addition, the products of the international legislative process are generally speaking not binding per se, but only in respect of those states that specifically accept them, and then only if a sufficient number of states do so, a requirement that may take more time to fulfil than the formulation and adoption of the instrument. But it is this very possibility, of not accepting subjectively unacceptable international legislation, that makes the process itself acceptable to governments. That is, they know they can only be bound if they decide they wish to be bound, and even though they themselves participate in the collective law-formulating and -adopting process, they do not have to decide whether to subject themselves to the product until after they have seen the precise wording of the treaty in question - while in agreeing to a judicial or arbitral settlement of a dispute they must make an advance commitment to abide by an as yet unformulated decision to be made by a third party.
In spite of its considerable productivity, the international legislative or norm-making process has so far been insufficiently studied, though a relatively recently concluded General Assembly exercise gathered a great deal of useful background material and considered a number of (but endorsed only a few) interesting suggestions for proposed improvements of the multilateral treaty-making process.2 For the purpose of the present exercise it will be useful to draw on that earlier study, though here the focus will be more sharply on the creation of environment-related norms.
There are of course several sources of international law, of which the most important for the modern environmentalist are multilateral international agreements, so-called law-making treaties, which may be concluded on a universal, on other worldwide, on regional, or on subregional or local bases. Not to be entirely disregarded, however, is customary law, which though not as easily and unambiguously manufactured as conventional law, is still to some extent subject to consciously directed adjustment and thus will also be examined briefly here. Finally, of particular importance for the international environmental regimes is so-called soft law, i.e. norms that are not strictly binding but are still generally likely to be observed.
The forge or forum in which new international law is created, whether the conventional or customary "hard" law or the quite extensive "soft" kind, has since the Second World War, and especially in the closing decades of the twentieth century, almost exclusively become the international intergovernmental organizations (IGOs). Indeed, the development of the process (described in some detail in the following sections) and the great increase in its output have been due largely to these IGOs, many of which are dedicated entirely to the formulation of new international norms or have established specialized organs for that purpose.