Formation of Customary International Law and General Principles
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.