CYIL vol. 11 (2020)

CYIL 11 (2020) THE NEW TREND OF INTERNATIONAL ENVIRONMENTAL LAW … are necessarily accepting rules about how those rules are maintained, developed or changed. 50 For being dependent on this process of acceptance and connivance of conduct, on international incentive and socioeconomic pressure, custom can also manifest a perspective of power . Opposite to Byers’ realist approach to international relations, who sustains power as more conducive to states with greater coercion capacity (developed), the power in international custommay come precisely from the union of least developed countries, opening an opportunity for these to get to assume the role of the more inserted, prominent actors in pursuit of their claims. In fact, the most suitable place for the development of custom (legal and power approaches) is the United Nations General Assembly. Article 2 (1) of the United Nations Charter purports the principle of equal sovereignty among all nations, which may be employed to create a fairer condition for non-industrialized countries to have their voices heard throughout the international community. Discussions around United Nations resolutions are unique opportunities for developing countries to act with equal standing in the international scenario. It is not difficult, then, to comprehend this forum of debate is both source and reiterated state practice in the process of constitution of customary international law. The question on whether resolutions constitute general state practice or not will depend on the fact that these resolutions do or do not concern general norms of international law, whilst their acceptance by a majority vote will provide evidence that they are perfectly accepted by states. Moreover, when framed as general principles , they cooperate to the development of law and the consolidation of customary international law. 51 It is possible to infer that once Resolutions get approval at the General Assembly, they would be receiving coverage of state practice’s material feature, implementing a specific (or primary, as referred) requisite for the emergence of a custom in international law. Although each resolution and declaration must be assessed according to its convenient nature and particulars, there are other international documents that may enjoy the same features of custom, as the outcomes of international conferences held among sovereign states, which Ian Brownlie defends to be entitled to enjoy the status of customary law. ‘The “final act” or another state conference conclusion statement may be a form of multilateral treaty, but, even if it is an instrument recording decision not adopted unanimously, the result may constitute cogent evidence of the state of the law on the subject.’ 52 It is quite clear that there is no unanimity concerning the customary nature of resolutions or even of declarations approved under the auspices of the United Nations. The debate on opinio juris and general practice, as previously mentioned, will be forever paradoxical considering the cyclic connection between both elements. However, a factor which we cannot ignore is the intended outcomes of the promulgation of these norms, whether they emerge now or soon. That said, one cannot undervalue state mobilization to bring claims to the debate at the United Nations and the major articulation employed to positively rule on 50 BYERS,Michael, ‘Custom, Power and the Power of Rules: Customary International Law froman Interdisciplinary Perspective’ (1995-6) 17/1 Michigan Journal of International Law 109, 112. 51 Brownlie (n 38) 15. 52 Ibid 15.


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