In the international law of the 21st century, more and more regulation comes in the form of post-treaty rules. Developed in environmental law, this trend increasingly spreads to areas ranging from tobacco regulation to arms trade. This book offers the first systematic examination of these decisions, resolutions and recommendations adopted by treaty bodies, to assess their effectiveness. The study shows that the authority of such rules is in question as, in practice, treaty parties retain almost complete discretion when it comes to their implementation. This conclusion gives rise to two key questions. To what extent does this ambiguous authority affect adherence to procedural principles like legal certainty, non-arbitrariness and the duty to state reasons? And can the legitimacy of the process and content of post-treaty rules fill the gaps in their authority? In assessing these questions, the study shines a light on this crucial but neglected area in international law scholarship and forms a starting point for improvements and reform.
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