CYIL vol. 11 (2020)
SILVANO DENEGA SOUZA CYIL 11 (2020) and it has been gradually incorporated in other documents originating from the most diverse United Nations bodies (e.g. IMO, UNFCCC), and if there is an already established predominance of this principle at the domestic level, then it comes to this: where the principle hasn’t been established as positive law, its application is still possible on the basis of international custom. Nevertheless, the most standing sources of customary international law, as broadly stressed under subsection a, are United Nations Resolutions. Their approval process, with direct participation of representatives of virtually all sovereign states is what confers outstanding legitimacy to the outcomes of the General Assembly. In the international environmental field, the following examples can be found: resolutions establishing a balanced, integrated approach of matters related to development and the environment – Agenda 21 (Res. 44/228, of 1989); institutional and financial provisions concerning international cooperation for environmental subjects (Res. 2997, of 1972); institutional arrangements for the monitoring of the United Nations Conference on Environment and Development (Res. 47/191, of 1982); Approval of the proposal of principles relating to state conduct in the utilization and conservation of natural resources shared by two or more states – UNEP (Res. 34/186, 1975), among others. Also make up this list those resolutions adopted by Conferences, Summits and official meetings held at the United Nations, which must go through the scrutiny of the General Assembly. Still regarding the United Nations, the improvement of its specialized bodies (UNEP and UNFCCC), of renowned articulation in multilateral environmental agreements, brings great contribution to the development of custom in the international community. Lastly, one could also mention the outstanding activity of new actors in international relations, such as non-governmental organizations, known for collaborating in the formation of opinio juris alongside sovereign states. What would be lacking, then, for the definitive recognition of an international custom which, as seen, is already rooted in international society? The most appropriate answer would comprise, first, the perception that such system is already in force and, secondly, a standardization (not necessarily a codification) in order to make it even more transparent. In A Survey of international Customary Rules of Environmental Protection , Brownlie stresses that ‘customary law provides limited means of social engineering, and, therefore, there is a particular need for the development of new institutions, standards, and localized regimes to deal with the protection of the environment’. 63 This standardization proposal made by the author is, in fact, a deficiency in international environmental law. However, it should be noted that since the structural organization of international custom regarding the environment subject, the rules establishing competences and responsibilities could, in theory, prepare the way for the long-waited development of international environmental law. By the way, it is not by chance that major criticism to the normative status of international environmental law sums up to the fact that it has inherited the weakness of customary international law, whose norms are spoken only , mostly founded in simple state declarations rather than commitments. Criticism goes further to stress that, internally, the practice of an 63 BROWNLIE, Ian, ‘A Survey of International Customary Rules of Environmental Protection’ (1973) 13/2 Natural Resources Journal , 179.
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