Sources of General Principles

1. Sources of General Principles Lawmaking Treaties as a means of reflecting or creating general principles: - Charney maintains that multilateral forums such as international organizations or negotiating conferences represent a different way of creating international law, that gives more relevance to broad, multilateral consensus rather than State practice - Charney argues that this approach leads to general international law which can bind non-parties even without their consent - multilateral forums such as the UN General Assembly allow representatives of states and other interested groups to come together to discuss important international problems - in theory, one clearly phrased and strongly endorsed declaration at a near-universal diplomatic forum could be sufficient to establish a new international law - this theory also supports the contention that international law is becoming more individualistic and will allow input from interested organizations - Handl also believed that multilateral treaties that address fundamental concerns and have strong state support (biodiversity & climate change) may indeed create expectations of general compliance - Handl also highlighted the ongoing transition of the int. legal system from one of the classical, voluntarist notion of int. law (ensuring mere coexistence) to one of an emerging international community with int. cooperation toward achieving common objectives and goals - Bodansky stressed the importance of int. environmental norms as setting the terms of the debates, thereby providing evaluative standards by which States could be criticized

2. Natural Law • The expression natural law has been used to denote a system of rules and principles for the guidance of human conduct which, independent of any law or system, might be discovered by the rational intelligence of man, and would be found to grow out of his nature • Natural law is universal making it applicable to everyone everywhere • It suggests the possibility that there is an external and universal standard to which laws can be held and assessed • Since it applies universally, there is a strong basis for arguing for sufficiently strong and universal standards, as well as a basis for criticizing today’s generally lax standards in international environmental law • There are difficulties with natural law: • it assumes humans have some purpose or end to which the world is working (such as human perfection) • This is vulnerable to criticism for being too much of a religious concept which may not be shared by all • There is also criticism stemming from those who view the laws of society as inseparable from the physical laws regulating plants, animals, and planetary bodies

3. Alternate Theories • In the absence of natural law, 2 alternate theories have been offered for int. law: • (1) Positivism – no principles outside of human made law that can tell us what the law ought to be • Legitimacy of a law cannot be measured against some underlying moral order or truth • CRAZY!!! Under pure positivist theory, national laws instituting slavery and genocide would be acceptable • (2) Contractarianism – the only legitimate basis for law-making is between parties who have contracted to coordinate their activities for mutual benefit • Rejects the existence of any pre-existing laws or principles • Neither theory can provide int. env. lawyers with a justification for the strong int. principels necessary to address today’s environmental issues • Why? Positivists have difficulty accepting int. agreements that are short on substantive commitment and contractarians cannot criticize laws laws reached through agreement between free, rational contractors

4. H.L.A. Hart – The Concept of Law • Describes the minimum content of natural law needed to regulate the society that must exist for humans to survive • Survival requires a legal system with specific content including rules respecting persons, property and promises based on 5 truisms: • (1) Human vulnerability • (2) Approximate equality • (3) Limited Altruism • (4) Limited Resources • (5) Limited Understand and Strength of Will

5. Ethics • Implications of Rawl’s theory of justice: • Essential feature is that no one knows his place in society, his class position or social status • Principles of justice are chosen behind a veil of ignorance – this ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances • Justice as fairness begins with a conception of justice • One feature of justice as fairness is to think of the parties as rational and mutually disinterested - - unlikely today with global commerce / energy production / arms production • Persons in initial situation would choose 2 different principles: • (1) equality in the assignment of basic rights and duties • (2) social and economic inequalities are just only if they result in compensating benefits for everyone, especially the least advantaged • Christopher Stone: • Sovereign right of each nation to exploit its own resources makes int. env. ethics tough • Difficulty in sorting through competing standards of fairness to find the morally right one because equality of effort or equality of outcome are both ambiguous with no baseline for all States • Just distribution of entitlement is among the hardest most foundational issues • Stone contends that on Rawls’ view the principles of justice that prevailed internationally stopped at national boundaries - - this is the problem we face today in forming a cooperative global community