Part IV Normative Development, Ch.25 Soft Law

2021 ◽  
Author(s):  
Boyle Alan
Keyword(s):  
Environmental Law ◽  
Soft Law ◽  
Democratic Accountability ◽  
Evolutionary System ◽  
Customary International Law ◽  
Treaty Ratification ◽  
Normative Development ◽  
Legal Effect ◽  
Law Making ◽  
Freedom Of Action

This chapter reviews how soft law has become a significant part of the evolutionary system of environmental law-making for three main reasons. First, it may be easier to reach agreement when the form is non-binding. The soft law approach allows states to tackle a problem collectively at a time when they do not want to shackle their freedom of action too firmly. Secondly, soft law instruments will normally be easier to supplement, amend, or replace than treaties, since all that is required is the adoption of a new resolution by the relevant international institution. Thirdly, it may be easier for some states to adhere to non-binding instruments because they can avoid the domestic treaty ratification process, and perhaps escape democratic accountability for the policy to which they have agreed. Whether soft law instruments have the same effect as a treaty, or any legal effect at all, will depend on the particular instrument and its relationship to customary international law and to specific treaties.

scholarly journals Treaty-Making and Treaty Evolution

2008 ◽  
Author(s):  
Thomas Gehring
Keyword(s):  
Environmental Governance ◽  
Environmental Law ◽  
International Environmental Law ◽  
Normative Development ◽  
Single Output ◽  
Environmental Treaty ◽  
Different Types ◽  
The Law ◽  
Law Making ◽  
Institutional Fragmentation

This article examines how the establishment and operation of environmental treaty systems helps to create and develop international environmental law. It inquires into the emergence of environmental treaty systems and identifies two characteristics of the evolving law-making structure: first, the ‘constitutionalisation’ of treaty systems through the creation of new structures for the making of international environmental law, and, second, the institutional fragmentation of international environmental governance. The article then considers the policy-making dimension of environmental treaty systems and identifies three areas of intra-institutional activity relevant to the law-making process: broadening and tightening commitments over time; elaborating upon, and in some cases redefining, existing obligations through an administrative process; and undertaking scientific and technical assessments to reinforce and accelerate normative development. It also explores the output of the law-making process, arguing that different types of law emerge. Whereas regular treaty law is still the most important single output of environmental law-making, it is supplemented by law emerging from simplified amendment procedures and secondary decisions of competent treaty bodies.

19. The protection of the environment

2019 ◽  
pp. 494-524
Author(s):  
Gleider Hernández
Keyword(s):  
Environmental Law ◽  
Significant Proportion ◽  
Case Law ◽  
Soft Law ◽  
Due Diligence ◽  
Dense Network ◽  
International Environmental Law ◽  
Customary International Law ◽  
Significant Damage ◽  
Conservation Of Endangered Species

This chapter studies the development of international environmental law. A significant proportion of international environmental law obligations is contained in treaties, which often provide for institutional mechanisms or procedural obligations for their implementation. There exists a dense network of treaty obligations relating to environmental protection, and to specific sectors such as climate change, the conservation of endangered species, or the handling of toxic materials. Indeed, though customary international law knows of no general legal obligation to protect and preserve the environment, certain customary rules nevertheless have been found in specific treaties, case law, and occasionally even soft law instruments. The most significant such rule is the principles of prevention, often taking the form of the ‘good neighbour’ principle. States are required to exercise due diligence in preventing their territory from being used in such a way so as to cause significant damage to the environment of another state.

Part IV Normative Development, Ch.23 Customary International Law and the Environment

2021 ◽  
Author(s):  
Dupuy Pierre-Marie ◽  
Le Moli Ginevra ◽  
Viñuales Jorge E
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Case Law ◽  
Environmental Agreements ◽  
International Environmental Law ◽  
Customary International Law ◽  
Normative Development ◽  
Environmental Norms ◽  
Environmental Interests

This chapter highlights how, despite the large number of environmental agreements at all levels, the role of customary international law remains key in practice. First, many treaties in force remain largely unimplemented. Secondly, treaties only bind those states parties to them, and that introduces sometimes important variations in the scope of environmental agreements. Thirdly, there is at present no treaty formulating binding overarching principles interweaving sectorial environmental agreements. As a result, it is often necessary to revert to customary norms when difficulties of interpretation or implementation arise. Fourthly, custom is important to mediate between a range of environmental and non-environmental interests governed by different treaties. Finally, custom plays an important role in disputes concerning a disputed area or where there is no applicable treaty. The chapter then analyses the process of custom formation with reference to environmental norms in order to show both the ‘banality’ and the peculiarities of this process. It also looks at the content of customary international environmental law as recognized in the case law.

20. The Protection of the Environment

2020 ◽  
pp. 454-489
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Climate Change ◽  
Environmental Impact ◽  
Impact Assessment ◽  
Environmental Law ◽  
Civil Liability ◽  
Environmental Harm ◽  
State Responsibility ◽  
International Environmental Law ◽  
Customary International Law ◽  
Law Making

This chapter focuses on international environmental law. First, it covers certain old precedents and then examines the emergence and consolidation of environmental principles between 1972 and 2020, with particular attention to the emergence of customary international law norms (prevention, co-operation, environmental impact assessment) in this area. Secondly, it surveys the substance of international environmental law, focusing on climate change as a prominent illustration of law-making in this field, and examining compliance procedures, as developed since the end of the 1980s. Thirdly, it discusses the operation of State responsibility and civil liability mechanisms for environmental harm.

Formation of Customary International Law and General Principles

2008 ◽  
Author(s):  
Pierre-Marie Dupuy
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Customary Law ◽  
Soft Law ◽  
International Protection ◽  
Technical Problems ◽  
Normative Concepts ◽  
The One ◽  
The Relationship ◽  
Law Making

The customary law status of a rule depends on whether the principle has been referred to, or put into operation, in a treaty, in a soft law instrument, in judicial or semi-judicial decisions, or in other expressions of state practice. This article starts with some preliminary observations on customary law-making in international environmental law, and then assesses the ‘banality’ of the customary law-making process in the field of the international protection of the environment – that is, the fact that this process is analogous to the one in general international law. It also reviews a series of theoretical and technical problems in proving the existence of customary environmental law, namely, the relationship between treaties and custom; the relationship between ‘soft law’ and custom; and the relationship between general principles, normative concepts, and custom. The article concludes by considering the problematic nature of the constantly ongoing law-making process in the absence of a legislator for environmental protection.

scholarly journals Externalizing Migration Management through Soft Law: The Case of the Memorandum of Understanding between Libya and Italy

Global Jurist ◽  
2019 ◽  
Vol 20 (1) ◽  
Author(s):  
Martino Reviglio
Keyword(s):  
European Union ◽  
International Migration ◽  
Critical Discussion ◽  
International Organization ◽  
Soft Law ◽  
Illustrative Case ◽  
The European Union ◽  
Migration Management ◽  
The Many ◽  
Law Making

Abstract The externalization of migration management to third countries is becoming a recurrent phenomenon in international migration management. Soft law instruments emerged as an important strategy to externalize migration management to third countries through international migration agreements. In particular, in the last years the European Union and some member states have adopted bilateral and multilateral migration agreements in order to diminish the arrival of migrants in Europe. These agreements in the form of soft law instruments are problematic because do not follow the ordinary process of law making and thus it is difficult to assess their legal effectivity. The memorandum of understanding signed in February 2017 between Libya and Italy represents an illustrative case of the process of externalizing migration management through soft law. From a critical discussion of the memorandum, many problems in relation to its legal and material validity follow. In particular, the protection of migrants’ human rights in Libya is not guaranteed as the many international organization and NGOs reports indicate.

scholarly journals “Could You, Would You, Should You?” Regulating Cross-Border Travel Through COVID-19 Soft Law in Finland

2021 ◽  
Vol 12 (1) ◽  
pp. 26-44
Author(s):  
Emilia KORKEA-AHO ◽  
Martin SCHEININ
Keyword(s):  
Fundamental Rights ◽  
Soft Law ◽  
Local Authorities ◽  
Governmental Policy ◽  
Cross Border ◽  
The World ◽  
Policy Measures ◽  
Guidelines And Recommendations ◽  
Law Making

In the coronavirus pandemic that has swept the world, the Finnish Government, like many of its peers, has issued policy measures to combat the virus. Many of these measures have been implemented in law, including measures taken under the Emergency Powers Act, or by ministries and regional and local authorities exercising their legal powers. However, some governmental policy measures have been implemented using non-binding guidelines and recommendations. Using border travel recommendations as a case study, this article critically evaluates governmental soft law-making. The debacle over the use of soft law to fight the pandemic in Finland revealed fundamental misunderstandings about the processes and circumstances under which instruments conceived as soft law can be issued, as well as a lack of attention to their effects from a fundamental rights perspective.

The Institutionalization of a Process

2016 ◽  
Vol 13 (2) ◽  
pp. 308-340
Author(s):  
Gloria Fernández Arribas
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
International Organization ◽  
Soft Law ◽  
Decision Making Process ◽  
Main Task ◽  
Kimberley Process ◽  
Law Making

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

scholarly journals ACTS OF “SOFT” LAW AS REGULATORS OF PRIVATE LAW RELATIONS

2015 ◽  
Vol 1 (4) ◽  
pp. 0-0 ◽  
Author(s):  
Ольга Муратова ◽  
Olga Muratova
Keyword(s):  
Public Relations ◽  
Soft Law ◽  
Private Law ◽  
Scientific Methods ◽  
Dialectical Approach ◽  
Legal Effect ◽  
General Scientific ◽  
The Common ◽  
Combination Of Methods ◽  
Methods Of Learning

The article covers the question of the enforcement of acts of “soft” law — unformal sources of regulation of public relations. It is pointed in the article, that though acts of “soft” law are not the sources of law in traditional understanding, such acts are important practical regulators of private-law relations. The author gives the common characteristic of acts of “soft” law, makes comparative analyses with legal acts. Although the most attention in the article is paid to the legal effect of the enforcement of acts of “soft” law, first of all, from the view of regulation of private-law relations. While preparing the article the complex of methods was used, which lay on the basis of systematical and dialectical concepts. The main conclusion of the issue is the acknowledgement of the fact of the exercising of influence by the acts of “soft” law on regulation of private-law relations. This article is based on a combination of methods of cognition, which amounted to a systematic and dialectical approach. The author appeals to the general scientific methods (analysis, synthesis, induction, deduction) and to the specially-legal methods of learning: formal-legal, comparative legal, structural and functional.

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