Enacting and developing international environmental law - Introduction to International Environmental Law - page 53

It is important to keep in mind that soft-law instruments are not as such
legally binding, as opposed to hard-law sources, such as international treaties,
customary international law or decisions of those intergovernmental organiza-
tions that have the power to enact legally binding decisions. Legal consequences
can only result from violating hard-law rules, which are defi ned in the sources
of international law.
The sources of international law
The doctrine of the sources of law defi nes, inter alia , how legal rules and prin-
ciples are enacted and developed in any given legal system. 12 In the legal
systems of many nation-states, the law that is enacted by their respective parlia-
ments generates collectively binding legal rules and principles ('norms') that
guide the behaviour of individuals and businesses. On another level, the
process remains similar: European Union member states are legally bound by
the directives adopted by the ordinary legislative procedure of the European
Parliament and the Council of the European Union. The closest process to
this within the international legal system would be if the Security Council of
the UN takes legally binding measures on the basis of Chapter VII of the
Charter of the United Nations in order to counter a threat to international
peace and security.
The doctrine of sources of law exists in every legal system, including inter-
national law. The sources of general international law apply in all branches of
international law - including international environmental law. However, it
can be argued that, in a way, international environmental law has challenged
international lawyers to reconsider the classical doctrines of the sources of
international law.
Article 38 of the Statute of the International Court of Justice lists the gener-
ally accepted sources of international law. Although this article is directed only
at the International Court of Justice, it has over the years evolved into a gener-
ally accepted defi nition of what the sources are in international law. It also
expresses how states can develop and enact new international law.
The primary sources, according to the article, are customary international law
(primarily legally binding on all states in the world), international conventions
(binding on the parties only), and general principles of law. Secondary sources
are judicial decisions and the opinions of highly qualifi ed experts of international
law. This division is based on the fact that states principally have the monopoly
on enacting and developing international law. The secondary sources (judicial
decisions and expert opinion) can, therefore, only be applied to defi ne the
contents of the primary source rules, not to create international law.
Different actors view the sources of international law in diverse ways.
States' foreign ministries frequently follow other states' environmentally
relevant foreign policies and take stances on them; in this way the reaction
(or non-reaction) can infl uence the development of a new rule in customary