The Sources of International Environmental Law: Interactional Law

Abstract

Drawing on the interactional account of international law, this chapter begins with a reflection on the concept of ‘sources of law,’ which it takes to refer to processes that are shaped by requirements of legality and through which legal norms are made and remade. This alternative understanding of ‘sources’ does not entail that the law-making methods listed in Article 38 of the ICJ Statute have ceased to matter in international environmental law – far from it. The interactional law framework takes seriously what international actors do, both as they continue to rely on ‘sources’ listed in Article 38, and as they develop new ways of making international law. The chapter, therefore, explores the law-making processes listed in Article 38 in turn, and then moves on to consider newer processes. The interactional framework and its practice-based understanding of legality illuminate the existence of resilient and relatively stable law-making processes, such as treaty-based and customary law-making, as well the emergence of new law-making processes, such as the various modes of ‘soft’ standard-setting that have seen a steady rise in international environmental law, and beyond.

Keywords: Article 38 ICJ Statute, custom, general principles, interactional law, Lon Fuller, non-state actors, soft law, requirements of legality, sources theory, states, treaties

JEL Classification: K33