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Vol 24 No 9 Sept/Oct 2019

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Authority and Legitimacy of Environmental Post-Treaty Rules


ISBN13: 9781509925568
Published: May 2019
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £75.00



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In the last few years in international law, more and more regulation comes in the form of post treaty rules. This book offers the first systematic examination of the rules, which are made up of a combination of decisions, regulations and recommendations, to assess their efficiency.

The study shows that the authority of these rules is in question as, in practice, member states retain almost complete discretion in their exercise. This conclusion gives rise to the key question; to what extent does this ambiguous authority affect respect/adherence to procedural principles in the practice of the application? This in turn leads to more far-reaching questions of legal certainty, non-arbitrariness and the duty to state reasons.

In assessing this question of legitimacy, the study shines a light on this crucial but neglected question in international law scholarship and forms a starting point for improvements and reform.

Subjects:
Environmental Law
Contents:
PART I
ENVIRONMENTAL POST-TREATY RULES AND THEIR AUTHORITY
1. Environmental Post-Treaty Rules: Concept and Context
A. Multilateral Environmental Agreements
B. Plenary Treaty Meetings
C. Rule Making by Plenary Treaty Meetings
D. The Concept of Post-Treaty Rules
E. The Normative Relationship between MEAs and Environmental Post-Treaty Rules
2. The Compartmentalised Authority of Environmental Post-Treaty Rules
A. Investigating Authority: Three Normative Orders
B. Eternal Interpretation: The Ramsar Convention and CITES
C. Closing the Gap: The Montreal and Kyoto Protocols
D. Conclusion

PART II
THE SOURCES OF THE AUTHORITY OF ENVIRONMENTAL POST-TREATY RULES
3. The Silence of the Enabling Clauses: Delegated Authority and the Doctrine of Sources
A. PTRs as International Delegated Acts
B. PTRs’ Delegated Authority According to the Sources of International Law
C. PTRs’ Delegated Authority in the Internal Normative Orders of MEAs
D. National Legal Orders
E. Conclusion
4. ‘Taking into Account’: Interpretive Authority and Wording
A. PTRs as Interpretive Agreements in the International Legal Order
B. PTRs as Interpretive Agreements in National Courts
C. The Effect of Wording on PTRs’ Interpretive Authority
D. Conclusion
5. Invisible Authority: Social Legitimacy and Social Pressures
A. Social Legitimacy and Authority
B. Social Legitimacy and Social Pressures in the Three Normative Orders
C. Conclusion

PART III
CRITICAL PERSPECTIVES ON THE AUTHORITY OF ENVIRONMENTAL POST-TREATY RULES
6. Vulnerable Authority: Discretion in Domestic Implementation and Violation of Procedural Principles
A. Is Authority Based on Social Legitimacy Different?
B. Wide Governmental Discretion
C. Infringement of Fundamental Procedural Principles
D. Conclusion
7. Challenges to the Normative Legitimacy of Environmental Post-Treaty Rules
A. Input Legitimacy
B. Output Legitimacy
C. Conclusion