CYIL vol. 11 (2020)
CYIL 11 (2020) THE NEW TREND OF INTERNATIONAL ENVIRONMENTAL LAW … those noble values involved (life and the environment) in addition to borders being incapable of containing pollution and environmental risks delicta juris gentium. These brief notes aim at (hopefully) answering the question on whether it is possible that an environmental custom is under formation in response to the very development of international environmental law, and if among the multiple instruments governing the subject in the international community, one stands as a clear convergence point. It is submitted that a custom is easily defined, but hardly identified. It usually comes down to a matter of perception, of focusing a lot more on the factual situation than on theories. Nonetheless, in order to reach this objective, the essential elements of custom, namely opinio juris and general state practice, must be analysed. But prior to analysing custom in detail, one shall consider the very independence (if not the existence ) of international environmental law as a means of distinguishing it from general international law. Thus, in order to identify the particulars of international environmental law, relevant theoretical references have been established for its study as an autonomous and already fragmented system with its own methodology, objectives, and peculiarities. In other words, a self-contained system. As it will be emphasized, there is no apparent reason to fear the disruption of the principled basis of the fragmented sub-area (now area) in relation to its origin, for according to Bodansky, ‘international environmental law remains rooted in international law and draws upon much of its repertoire, such as the rules governing customary law.’ 1 Andrew Hurrel, to mention one, agrees with those who understand the international political aspects of the environment should be handled as distinctive study objects, although foreseeing challenges to the effectiveness of international environmental law in an international community marked by heterogeneity and obstacles related to the more than 190 sovereign states which make up the system. 2 Against this background, a humanistic approach will be eventually considered in order to identify the man-international environment relation. As Hedley Bull discussed in The Anarchical Society , no matter how chaotic and anarchic the global order scenario, issues regarding humans and the environment could be solved through the rise of a great sense of human solidarity, whereas the state system is dysfunctional and the sole action of states will prove to be insufficient to solve these problems in the long run. 3 A few divergent opinions on the conclusions presented have also been considered. One, especially, is Beyerlin’s view, classifying international environmental law as a twilight norm, on account of its intrinsic uncertainty, fast ascension, and hard verification. 4 1 BODANSKY, Daniel, BRUNNÉE, Jutta and HEY, Ellen, ‘International Environmental Law: Mapping the Field’, in BODANSKY, Daniel, BRUNNÉE, Jutta and HEY, Ellen (eds.) The Oxford Handbook of International Environmental Law (Oxford University Press 2010) 5-6. 2 HURREL,Andrew and KINGSBURY, Benedict (eds.) The International Politics of the Environment (Oxford University Press 1992) 4. 3 BULL, Hedley, The Anarchical Society: A Study of Order in World Politics (Palgrave 2002) 284. 4 BEYERLIN, Ulrich, ‘Different Types of Norms in International Environmental Law: Policies, Principles and Rules’, in Bodansky, Brunnée and Hey, The Oxford Handbook of International Environmental Law (Oxford University Press 2010) 427.
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