Research Handbook on International Environmental Law
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Research Handbook on International Environmental Law

Edited by Malgosia Fitzmaurice, David M. Ong and Panos Merkouris

This wide-ranging and comprehensive Handbook examines recent developments in international environmental law (IEL) and the crossover effects of this expansion on other areas of international law, such as trade law and the law of the sea.
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Chapter 1: Actors and Law-making in International Environmental Law

Mark A. Drumbl


Mark A. Drumbl A strikingly diverse number of actors create international environmental law through strikingly diverse processes of law-making. The dynamism of actors and law-making in international environmental law contributes to similar developments in international law generally. Traditionally, the number of actors with international legal personality – in other words, those actors who actually could make international law – has been limited. States were primary among this group, followed by international organizations. In recent years, however, considerable international environmental law effectively has been generated by non-governmental organizations, networked communities of experts, and administrative secretariats of treaty organizations. Major international conferences of states serve important social constructivist functions in setting norms and building consensus. The expansion in the number of actors that, whether de jure or de facto, make international environmental law has diversified the sources of international environmental law, thereby enriching the process by which it is made. Sources of international law include treaties, custom, general principles of law, and – in a subsidiary sense – judicial decisions and the writings of eminent publicists (ICJ Statute, 1945: Art. 38(1) and (2)).1 However, much of international environmental law is informally generated by ‘soft law’ – namely that which is ‘not yet or not only law’ (Dupuy, 1991: 420) – in particular when it comes to setting norms and defining agendas for formal law-making processes. International environmental law has seen a particularly dynamic element of soft law-making and, in this vein, has been an important trendsetter for the expanding content of international law generally. This chapter...

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