Private Lawmakers in International Environmental Law

Abstract: The body of international environmental law consists of framework agreements with vague norms that cannot be used in an operative manner. At the same time, sustainable development law promotes an integrated approach to social, economic and environmental issues, including other actors than states, which involves an increased pressure on private actors to take part in the efforts to protect the environment. The increased pressure on corporations is perceptible in the oil and mining sector, due to the significant environmental risks of the sector and multinational corporations as its main actors that operate in developing states with insufficient capacity to protect their environment. Due to the increased pressure on the companies to act environmentally responsible and the lack of substantive international environmental norms, multinational companies and industry associations have started to create environmental standards of their own. The objective of my thesis is to determine if private norms could replace national legislation and become principles of international law. This would allow also private actors to develop vague international environmental agreement provisions into operative international environmental norms and serve as a source of public international law. As a part of environmental protection, environmental impact assessment (EIA) constitutes a cornerstone of sustainable development and is fundamental to any regulatory system seeking to promote sustainable development. The confusion is, though, if a company operates in a state that lacks adequate regulatory system for EIAs, the company will have to seek international environmental norms to comply with. If such norms are not provided in international legal instruments, the companies will be forced to seek and create norms within the private sphere. In Mauritania, a developing state, there is a lack of substantive national environmental regulation in the oil and gas sector, and the regulators refer to private norms for the performance of EIAs of the oil companies. In my conclusions, I have detected that the norms created by the industry represent through consensus ''best practice,'' and is referred to in national legislation as a substitute for normative provision. Although, oil companies' voluntary achievements and management regarding environmental protection cannot replace national legislation, it does not prevent that the norms created as voluntary initiatives can be incorporated into domestic law and substitute the lack of substantive norms in a legal system. Using ready-made private norms by having a reference to best practice in national legislation could be an alternative for a state in order to have a regulatory system in place fast. This is in particular relevant for developing states with little experience as oil states, like Mauritania. The private standard products incorporated into legal instruments on a national level can thereby become ''hard'' law and influence international law as state practice in accordance with article 38(1)(b) of the Statue of International Court of Justice. However, the enforcement problems in developing states, for instance like Mauritania, will undermine the effectiveness of the voluntary guidelines in national environmental laws and the likelihood for private norms to become binding law is much reduced. However, the principles developed by private actors that are authoritative as guidance in industry practice, national courts, international organisations and in treaty making process, and could be regarded as ''general principles'' in the meaning of article 38(1)(c) of the Statute of International Court of Justice, which would open up for private actors to be regarded as lawmakers in some sense.