Custom as a Traditional Source of International Environmental Law

The authors have discussed the role of consent in international environmental law, and how it
plays a role in treaties as well as customs. Though acquiescence is sufficient for recognition and
application of a custom as a norm, there has been emphasis on the persistent objector rule by
certain nations such as the United States. 1 In this respect, experts have also opined that the
creation of new customary rules should depend on custom to an extent. The role and importance
of customs is present in Article 38(1) of the ICJ Statute. In order to ascertain a custom as a legal
obligation, it must satisfy the rules of “opinio juris” and actual practice. 2 However in
international environmental law, the practices that transform into customary law does not depend
on inquiry alone, rather it becomes a policy choice. This is a significant point to be noted in this
context.3

Devising what practices must be recognised is not an easy task, on account of the diverse legal
systems, policies and cultures across the globe. Hence a wide view must be taken while
examining a “state practice” for ascertaining whether it can be considered as a customary law.
Official statements, legislations, court decisions, declarations, etc., must be taken into account in
this respect. In this context, even omission to pursue a certain action has been considered by the
PCIJ.4 Even the practices followed by international organisations have been opined to fit under
this category. In such practices by international organisations, the determination depends on the
extent to which states adopt the prescriptions given by them.5

It has been stipulated that the old principles for shaping customary law are no longer appropriate
in the international law of environment, as this area is increasingly being governed primarily
through multilateral treaties negotiated by states, rather than practices. The Stockholm
Declaration, 1972, UN Convention on the Law of the Sea, 1982 and the Riothem with
Declaration on Environment and Development, 1992 are a few examples of such treaties. These

1 James Crawford, Brownlie’s Principles of Public International Law, (8th ed., 2012)
2 Libya-Malta Continental Shelf Case, ICJ Reports (1985)
3 R. Jennings and A. Watts, Oppenheim’s International Law, (9th ed., Harlow, Longman, 1992)
4 S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10
5 M. A. Fitzmaurice and C. Redgwell, ‘Environmental non-compliance procedures and international law,’ (2000)
Netherlands Yearbook of International Law 35-65
treaties are marked by consensus, participation, compromises and sharing of instruments, that
renders monumental intensity and vigour.6

Treaties often do imbibe customary law, as witnessed in the Nicaragua case and the North Sea
Continental Shelf case. In the former case, it was conveyed by the court that a provision that
exists in the form of a norm in a treaty of multilateral nature, could contribute to the creation of a
new rule of customary international law, if the practice that is eventually adopted is followed
widely, that is conformed to by non parties and is indicated through opinio juris. 7 In the latter
case, it was opined that the parties’ common view about the prevalence of a state practice is not
sufficient and the rule of opinio juris must be satisfied. It was also laid down that the rule in a
treaty provision does not prevent the application of a customary international law.8
In spite of this, the line between court recognition of a practice as a custom based on a
dec;aration by states and actual satisfaction of the rule of opinio juris, often fades during the
course of interpretation by courts. Hence lack of inconsistency seems to be the standard. This is
in contrast with the view taken up in the North Sea Continental Shelf case.

On this note, it can be concluded that treaties do derive rules from custom and play a role in their
development. Next, treaties are marked by the intent to make a law, unlike customs. This itself
favours opinio juris and the element of consensus. Third, a treaty rule by itself does not result in
law. It must be applied through state practice across the years. The amount of time required can
vary according to the circumstances.9 Fourth, the effect of implementation of the treaty as a law
must be identified by way of the support.

One more aspect to consider is that even multilateral treaties can cause the development of novel
customary international law. Next, one must keep in mind that that customary law can be local
and subject to reservations, especially in international environmental law. In this respect,
persistent objection makes the rule applicable with respect to that particular party. However,
experts opine that establishment of the rule will make this defence inapplicable. Again, this

6 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford University Press 2007)
7 Alan Boyle and David Freestone eds., International Law and Sustainable Development (1999)
8 ICJ Reports (1986).
9 Gabčíkovo Nagumaros Project, ICJ GL No 92, [1997]
opinion is subject to the wide array of circumstances and possibilities that can arise in
international environmental law.10

10 Patrick Dumberry, ‘Incoherent And Ineffective: The Concept Of Persistent Objector Revisited’, (2010) 59 The
International and Comparative Law Quarterly 779