CYIL vol. 11 (2020)

CYIL 11 (2020) THE NEW TREND OF INTERNATIONAL ENVIRONMENTAL LAW … international environmental custom is feeble and inconsistent, and that in the external scope, no one has laid eyes on robust practice that would be truly confirmed as custom. Dupuy, to mention one, considers that the reluctance of international tribunals in addressing the subject, in identifying and putting this set of principles regarding environmental protection into practice, would come to impair the normative status of these elements, losing an opportunity to transform mere declarations into actions. The author goes so far as to defend that the international community needs an efficient legislative process. 64 Dupuy’s idea, unlikely and utopic as it may appear, unfortunately cooperates with the line of thought followed by many scholars of international law. These critics have strongly denied custom as a norm of international environmental law because it eventually does not exhibit a compulsory character to the other states in the sanctions system of the international community. The alternative would be, among other ideas, the unwearyingly quest for codification, the Oppenheim effect in international environmental law. Nonetheless, in light of this immense normative international environmental apparatus, drawn from robust treaties, agreements, declarations, principles, resolutions, opinio juris and general state practice, one finds that international environmental law has gained shape, although not a uniform one, and that is also from the point of view of a custom based theory of international law. 4.2.1 A Comment on Ulrich Beyerlin’s opinion As mentioned in the introduction, some scholars have designated norms of international environmental law as part of the normative twilight (international environmental twilight norms), as Beyerlin did. The author borrows terminology from Ronald Dworkin 65 for the purposes of the classification of norms of international environmental law, separating them in three dimensions: policies, principles and rules. As for Beyerlin, policies are understood as ‘a broad spectrum of non-legal concepts, including those that have the capacity to directly or indirectly steer the behaviour of their addressees.” 66 The author adds that the most known subdivision of policies is called soft law, that is, a “norm” lacking legal enforcement, valid only in political-moral terms. This terminological separation (policies, principles and rules) aimed at the classification of existing dispositions in international environmental law, putting them in certain levels of legal force and validity against third parties. However, when registering them under ‘stronger’ – or hierarchically superior – and ‘weaker’ – or twilight –, Beyerlin had, in theory, the accurate perception of the disparate performance of some states regarding environmental regulation, which then can be identified by these two distinct elements: the quest for legislation that can give support to emergent international environmental problems and, on the other hand, the lack of politic will to make commitments and sign international agreements aimed at protecting the environment. By refusing to accede to treaties containing more demands and environmental commitments, however, these same countries would be rejecting what could constitute an excellent environmental protection mechanism at the international stage. The outcome of 64 Dupuy (n 45) 464. 65 DWORKIN, Ronald, Taking Rights Seriously (Duckworth 1977) 22-26. 66 Beyerlin (n 4) 427.


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