Article 38(1) of the Statute of the International Court of Justice (‘ICJ Statute’) enumerates the sources of international law. These include treaties, international custom, general principles of law recognised by civilised nations, and judicial decisions and the teachings of highly qualified publicists. However, due to the evolution of international relations, particularly because of the enormous expansion of the activities of international organisations and the ensuing shifts in the ways in which public international law was being made by States and international organisations alike, it soon became clear that it was not only rules which conformed to the model of law laid down by article 38 that were guiding state conduct. To differentiate this new type of law, international lawyers christened it ‘soft law’ to differentiate it from the ‘hard law’ envisaged by the ICJ Statute. In this essay, I discuss a few developmental as well as technical issues relating to soft law. I begin by discussing what constitutes soft law.
Although there is much interest currently in what is termed ‘soft law’; Sir Joseph Gold observes rather whimsically that there are ‘almost as many definitions of soft law can be found as there are writers about it.’ However, despite such scepticism, it is still possible to fashion a working description of the concept. In this regard, it is submitted that the term soft law expresses a preference and not an obligation that states should act, or should refrain from acting, in a specified manner. In international law, ‘hard’ or ‘firm’ law is an obligation of a state or states for the breach of which it or they are responsible, whatever the form of sanction or penalty that responsibility may entail. Soft law does not imply obligation and, therefore, possible breach and responsibility for breach; soft law is instead a norm expressed by the international community to which it is hoped, at least by the group of states articulating the norm, that states will adhere, but to which there is no obligation of adherence.
Soft law therefore concerns rules of conduct that find themselves on the legally non-binding level (in the sense of enforceable and sanctionable through international responsibility) but which in accordance with the intention of its authors indeed do possess a legal scope, which has to be defined further in each case. Such rules do not have in common a uniform standard of intensity as far as their legal scope is concerned, but they do have in common the fact that they are directed at and do have an effect on the conduct of States, international organisations and individuals, however without containing strict international legal rights and obligations. This rendering of state obligations could not be comfortably be captured by the old categories at international law, hence the development of a separate category.
The concept of soft law has encountered a fierce opposition by a number of international lawyers. According to this opinion, it is not desirable to speak about soft law in public international law for various divergent reasons. For example, it is argued that the concept’s will curb the willingness of States to pursue hard law or to observe it; that the concept itself is a classic example of a contradiction in terms; and finally that soft law is regarded as public international law overstepping its limits in a futile attempt to render international political relations too juridical. Yet despite these objections, the international lawyer finds himself facing an unprecedented proliferation of international non-conventional instruments which have been brought about by States and international organisations and which are intended to have, or are having, the effect of influencing the conduct of States, international organisations or individuals in a permissive, prohibitive or prescriptive way.
The reasons why these non-conventional instruments are called upon are divergent but state practice unmistakably shows that the catalogue of sources in Article 38(1) of the ICJ Statute is inadequate. Treaty law does not apply to these non-conventional instruments, nor can they be clothed with the authority of customary law. Yet they cannot be correctly construed as being legally non-binding.
Consequently, soft law developed in response to this conceptual void; in order to describe activities that do not strictly conform to binding international law and yet have some significant legal scope. However soft law is not only a means to explain normative phenomena of State practice, but that it is also and more importantly a concept which finds its raison d’être in the need to describe and define the legal effects of non-conventional instruments which regulate international practice.
The situation of soft law on the penumbra of the legally-binding and the not-legally-binding allows states to use soft law devices for a number of purposes. I describe some of these below.
The manner in which soft law is utilised by states varies from case to case and is incapable of strict categorisation. The only common element is that states and international organisations use them where strict legal obligations are not desired or are impossible to achieve. Soft law instruments include the following:
Resolutions adopted by or within an international organisation. Such resolutions can declare rules of conduct by a representative part or the entire international community which define more precisely and codify a pre-existing State practice or are a preview of subsequent State practice. As long as the essential conditions for a genuine international obligation are not yet fulfilled via the conventional way, the resolutions may constitute soft law.
Codes of conduct. The striking feature of these international instruments is that their rules of conduct are not exclusively directed at States or international organisations, but also at natural persons or legal persons. The OECD Guidelines for Multinational Enterprises of June 21, 1976 is a pre-eminent example in this respect.
Soft law disguised as hard law. This refers to instruments the authors of which, in creating them, sometimes have consciously chosen forms and procedures that can hardly be distinguished from the treaty law model; but after a closer look and an analysis of their subject matter they do not contain rights and obligations of public international law. The Final Act of Helsinki is an example.
Joint communiqués or declarations. The results of international contacts and discussions can be laid down in this form and signed by the participating States and international organisations. Although non-binding, such declarations are indicative of future State conduct.
Gentlemen’s agreements. Gentlemen’s agreements, as far as the category with a normative character is concerned, can be another form of soft law. They are described by Aust as ‘informal international instruments’: they are not treaties ‘because the parties to it do not intend it to be legally binding’ but nevertheless do guide state conduct.
Books and articles
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