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Customary (and Not So Customary) International Environmental Law
Dan Bodansky
3 Ind. J. Global Legal Stud. 105 (1995)
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In this article, Professor Bodansky examines the creation and importance of customary international law. He suggests that the debate over the legal status of any given norm may be misplaced. Instead, he suggests that international lawmakers should spend their time and energy incorporating norms, regardless of their true status, into "concrete treaties and actions." The author begins his discussion by providing a working definition of customary international law. He asserts that such law can be based not just on uniformities of state behavior, as is traditionally held, but also on regularities in behavior. Thus, customary international law can be
formed even when states do not fully comply with a particular norm. Next, Professor Bodansky contends that state declarations may be just as indicative and useful in uncovering customary international law as state behavior. But the author goes on to state that such "declarative law" does not and should not carry the same weight as customary norms based on state behavior. Because such norms are "non- legal, "courts and other arbiters cannot enforce them against a state. The author concludes, however, that these non-legal norms may play a significant role in setting the terms of the debate, especially in negotiations between states. These norms can then be incorporated into treaties and other international agreements, making them more concrete and enforceable. Ultimately, as the author states, the
international community should spend less time debating a norm's legal status and more time translating general norms into enforceable treaties.
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