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date: 26 February 2020

Abstract and Keywords

The customary law status of a rule depends on whether the principle has been referred to, or put into operation, in a treaty, in a soft law instrument, in judicial or semi-judicial decisions, or in other expressions of state practice. This article starts with some preliminary observations on customary law-making in international environmental law, and then assesses the ‘banality’ of the customary law-making process in the field of the international protection of the environment – that is, the fact that this process is analogous to the one in general international law. It also reviews a series of theoretical and technical problems in proving the existence of customary environmental law, namely, the relationship between treaties and custom; the relationship between ‘soft law’ and custom; and the relationship between general principles, normative concepts, and custom. The article concludes by considering the problematic nature of the constantly ongoing law-making process in the absence of a legislator for environmental protection.

Keywords: customary law, law-making, international environmental law, international law, treaties, custom, soft law, normative concepts, environmental protection

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