In the absence of international statutes prohibiting nations from causing each other environmental damage, scholars of international environmental law typically focus on trying to identify and clarify norms of “customary international law”: that body of commonly accepted—but not formalized—legal principles that is manifest in the behavior of nations toward one another. Two nations to exercise due care to avoid putting other nations at significant risk of environmental harm.
In debating whether a given principle should be classified as a norm of customary international law for the purposes of deciding international cases, scholars of international environmental law generally accept an established criterion: principles are norms only if nations customarily abide by the principles in actual practice rather than merely affirming them constantly cross most international borders, and that nations have only rarely attempted to remedy this situation.
Even though nations only rarely abide by these environmental “norms,” they nevertheless routinely profess to accept them. Similarly, while scholars discussing customary international law claim to focus on what nations do, their debates are almost invariably based on what nations profess. In reality, international environmental “norms” primarily reflect the evaluative standards that characterized as an ideological system, since they merely represent some collective ideals of the international community.
In light of this fact, those scholars who seek in customary international law a firm grounding for decisions in international environmental cases are misdirecting their efforts. This is especially true given that international treaties and direct negotiations, rather than international court decisions, are now the principal means of resolving international environmental disputes. would promote progress toward agreements that could effectively hold nations to appropriate standards of environmental conduct.
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