How Did They Become Law?: a Jurisprudential Inquiry About the Outcome Principles of Historic United Nations Environmental Conferences

• Publication year: 2016
• Citation: Vol. 45 No. 1

HOW DID THEY BECOME LAW?: A JURISPRUDENTIAL INQUIRY ABOUT THE OUTCOME PRINCIPLES OF HISTORIC UNITED NATIONS ENVIRONMENTAL CONFERENCES

Woong Kyu Sung^*

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TABLE OF CONTENTS

I. INTRODUCTION .................................................................................55

II. FORMS OF THE OUTCOMES OF UN ENVIRONMENTAL CONFERENCES ...................................................................................56

III. CONTEXT OF OUTCOME PRINCIPLES .................................................59

A. Jurisprudential Nature of Principles..........................................60
B. Type of Soft Law Possessing Stronger Normative Power..........61
C. Stagnation of Conventional International Law..........................63
D. Analogous Legal Justification for Outcome Principles and International Law.......................................................................68

IV. PRINCIPLES AS A SHARED SOURCE OF INTERNATIONAL LAW AND SOFT LAW .................................................................................72

A. Linguistic Analysis.....................................................................74
B. Drafter's Formula......................................................................81
C. Practice in International Conferences: A New Legislative Process.......................................................................................85

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D. Conditions to Make Principles International Law.....................90

V. CONCLUSION .....................................................................................96

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I. INTRODUCTION

Few called them a politician's empty promises when the President of the Republic of Korea announced an ambitious package of pledges to implement the sustainable development goals declared by the unanimity of the United Nations (uN) General Assembly on September 26, 2016. Not many, either, among the largest crowd of heads of state and government in the history of environmental conferences in attendance during the high-level meeting, would have dwelled on the reasons behind their boundless trust in her pledges being realized. This despite the popular theory that the adoption of a resolution, which contains those goals, is merely recommendatory in nature and thus does not legally guarantee compliance by participant states.¹

Beginning with the UN Conference on Human Environment (Stockholm Conference) in 1972, the international community has convened under the auspices of the UN for similar gatherings: the UN Conference on Environment and Development (Rio Conference) in 1992, the World Summit on Sustainable Development (Johannesburg Summit) in 2002, the UN Conference on Sustainable Development (Rio+20) in 2012, and the aforementioned summit for the adoption of the post-2015 development agenda (Sustainable Development Summit).² They called a great deal of public attention to the issues of worldwide environmental degradation and became an important part of the human struggle to protect, conserve, and enhance the Earth's environment. At the center of the immense changes in our thoughts and behaviors that this unprecedented movement brought about

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lies the normative power derived from the outcome principles of those conferences.

This Article seeks the origin of this normative power and examines the legal status of the outcome principles of these historic UN environmental conferences. In the process, what have typically been regarded as "soft law principles" will prove to be virtually indistinguishable from the general principles of law that the traditional scholarship recognizes as a source of international law. This may not be true for all soft law instruments, but is rather a precise conclusion in the case of soft law principles.³ So far, few have identified the possibility that soft law principles are indeed a source of international law under Article 38 of the Statute of the International Court of Justice (ICJ). The author's contention would be, however, that in international law the argument for soft law principles as law and the argument for hard law principles as law are the same. Therefore, if the former succeeds, the latter should succeed, too; in case either argument is not successful, in fact both fail in similar ways. The author will also elaborate the conditions to fortify this novel theoretical conclusion, drawing directly from the practice of the major UN environmental conferences that have produced soft law principles. Such jurisprudential inquiry will touch upon the fundamental questions of international law, which need to be answered further to understand the scope and degree of influences that these outcomes principles had upon the evolution of international environmental law and governance.

II. FORMS OF THE OUTCOMES OF UN ENVIRONMENTAL CONFERENCES

International conferences convened under the auspices of the UN have produced outcomes in various forms of documents bearing different legal and political implications.⁴ For instance, the UN diplomatic conference of

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plenipotentiaries held in Rome from June 15 to July 17, 1998 concluded the Rome Statute of the International Criminal Court, a treaty establishing the first permanent international criminal court, which is recognized as a source of international law in a strict sense.⁵ On the other hand, UN Conferences on the Standardization of Geographical Names, which have been convened every five years since 1967, produced resolutions containing standards in the field of nomenclature that are merely technical and recommendatory in nature.⁶ There are also UN conferences, which failed to produce a meaningful outcome.⁷ For instance, the UN Conference on Territorial Asylum held in Geneva from January 10 to February 4, 1977 was initially expected to produce an international convention. However, participants could not reach a consensus and ended up only with the record of proceedings in a report.⁸ Conferences not just by the UN, but by other intergovernmental and nongovernmental organizations have gone through the congruent path with similarly varied outcomes.⁹

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Among the variations, seminal international environmental conferences organized under the auspices of the UN often concluded in two types of outcomes: a declaration and a plan of action or implementation. For example, participants in the Stockholm Conference addressed their conviction about the promotion of the environment in the Declaration of the UN Conference on the Human Environment¹⁰ and adopted the Action Plan for the Human Environment.¹¹ Likewise, those in the Rio Conference agreed upon the Rio Declaration on Environment and Development on the one hand¹² and Agenda 21 on the other.¹³ The Johannesburg Summit also adopted both the Johannesburg Declaration on Sustainable Development¹⁴ and the Plan of Implementation of the World Summit on Sustainable Development.¹⁵ Though slightly divergent from these examples, Rio+20 and the Sustainable Development Summit combined these two outcomes into one document while substantively keeping them separate within the document.¹⁶

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Some major UN environmental conferences furnished a substantial portion of their outcome in the form of principles. For instance, the Stockholm Conference provides twenty-six principles and the Rio Conference provides twenty-seven principles. outcomes from other major UN environmental conferences also tend to include, though only substantively, a bundle of principles as is the case with other soft law instruments in various formats that purport to lay down principles.¹⁷ For example, although Rio+20 did not explicitly provide paragraphs titled "principles," the conference introduced in its outcome a number of principles to promote what is called the "green economy," a new concept of sustainable development.¹⁸ In the case of the Sustainable Development Summit, the outcome declaration includes a subsection titled "our shared principles and commitments" that merely recalls several past conferences and outcomes in which important principles were announced.¹⁹ The Summit set out, instead, seventeen goals to be achieved, which strongly imply a set of principles.²⁰

III. CONTEXT OF OUTCOME PRINCIPLES

What is the importance of these outcome principles in international law? How does it relate to the identical terminology found in the ICJ Statute that the traditional scholarship considers as an applicable law?

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A. Jurisprudential Nature of Principles

Principle is a term that is difficult to define though it has been frequently used in diverse contexts, including in the outcome of the major UN environmental conferences as shown above.²¹ To avoid stipulating the definition of the term for selective purposes, Ronald M. Dworkin suggested a negative approach.²² His definition centers on a categorical comparison of the principle with two other legal standards: namely, "value" on the one hand and "rule" on the other. This method is very much conducive to grasping the concept and function of principles and clarifying their jurisprudential significance, which has since been followed by many scholars. Simply put, value is a more abstract concept and rule is a more concrete one, relative to the principle.²³ The value is an expression of the eventual goal that a group or society aspires to attain in a particular field.²⁴ On the other hand, the rule describes specific types of conduct that are either required or prohibited and thus creates clearly delimited rights and obligations.²⁵

The legal status of a principle lies in-between. Principles suggest a normative strategy to pursue relevant values and the values provide a theoretical basis and moral support to the principles.²⁶ on the other hand, principles denote what a set of rules have in common and the rules find their abundant meaning in the principles.²⁷ In this way, a set of norms have developed over time from values to principles and to rules, or vice versa. of course, the distinction between...