International Law Soft Law
by
Teresa Fajardo
  • LAST REVIEWED: 02 November 2017
  • LAST MODIFIED: 30 January 2014
  • DOI: 10.1093/obo/9780199796953-0040

Introduction

The generic term soft law covers a wide range of instruments of different nature and functions that make it very difficult to contain it within a single formula. Its only common feature is that it is in written form, but the other characteristics are variable and negotiable and they constitute an “infinite variety.” So the term encompasses soft rules that are included in treaties, nonbinding or voluntary resolutions, recommendations, codes of conduct, and standards. A good definition of soft law is difficult to find since this term has been the subject of passionate debates between those denying the existence of such law and those who consider it as a new quasi source of international law, and those who study the concept frequently demand that authors embrace one position or the other. Briefly, it can be defined as “normative provisions contained in non-binding texts” (Shelton 2000, p. 292; cited under General Overviews). Moreover, it covers those weak provisions of international agreements not entailing obligations. Soft law appeared at a time when positivist theories were compelled to confront the regulation of new legal issues that formerly belonged to the domaine reserve. Since then the academy has revisited the sources of international law in considering soft law as a source that questions the canonical basis of international law, thus breaking the ideal of hard legalization and introducing different degrees of normative intensity. Soft law has triggered doctrinal debates on the difference between it and hard law rooted in positions adopted on the basis of the foundations or sources of international law or the process of lawmaking. Some authors rely on a binary distinction between legal and nonlegal rules, while others choose the idea of graduated normativity or continuum or the existence of a penumbra in which soft law has its being. Soft law instruments can even be adopted by new actors involved in the processes of informal international lawmaking with different degrees of authority, as the new unacknowledged legislators of the world. Soft law also has different functions covering the inception of law and the interpretation and adaptation of hard law, and it is found in the delegation of functions conferred on international organs charged with developing international law. Softness has even found its way into legal institutions and international organizations, endowing them with soft responsibility and soft instruments of monitoring and enforcement. In light of these comments and despite its critics, soft law is here to stay.

General Overviews

Baxter 1980 and Weil 1983 are seminal works that approach soft law from opposite positions. Baxter 1980 sees in soft law the infinite variety of international law expressing a “different intensity of agreement” (p. 566). Weil 1983 is the author’s most quoted landmark work in which he is critical of the notion of “relative normativity,” and in which he warns us not to blur the distinction between normative and non-normative rules and to differentiate between normative and pre-normative acts in the international norm-creating process. Klabbers 1996 has steadily fought against the notion of soft law, asserting that it is redundant since “the traditional binary conception of law is well capable of performing the functions usually ascribed to soft law” (p. 168). Chinkin 1989, with far-sighted thoroughness, adopts a position that evaluates the pros and cons of soft law, taking into account its impact in law-making procedures and in the implementation and adjudication of international law. Shelton 2000 is a groundbreaking work of the American Society of International Law that evaluates nonbinding norms and discusses compliance with soft law through an assessment of a wide variety of nonbinding instruments on key subjects. Abbott and Snidal 2000 transcends disciplinary divisions and criticisms of soft law to argue that the “realm of ‘soft law’ begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation” (p. 422). On the state of the art on soft law, D’Aspremont and Aalberts 2012 and Pauwelyn, et al. 2012 offer an invaluable analysis of the different legal theories on international law, searching for answers to the questions that soft law raises.

  • Abbott, Kenneth, and Duncan Snidal. “Hard and Soft Law in International Governance.” International Organization 54 (2000): 421–456.

    DOI: 10.1162/002081800551280Save Citation »Export Citation »E-mail Citation »

    Cited in many other works, this article is a landmark in American scholarship with an interdisciplinary scope transcending divisions between international relations and international law. The authors argue that “it initiates a process and a discourse that may involve learning and other changes over time” (p. 423), allowing actors to evaluate their soft law commitments in the context of legalization.

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    • Baxter, Richard R. “International Law in ‘Her Infinite Variety.’” International and Comparative Law Quarterly 29.4 (1980): 549–566.

      DOI: 10.1093/iclqaj/29.4.549Save Citation »Export Citation »E-mail Citation »

      Seminal work approaching soft law as one element among the many varieties of international law and as one that expresses a “different intensity of agreement” (p. 566) through “various degrees of cogency, persuasiveness, and consensus which are incorporated in agreements” and also through “various norms of customary international law, in terms of degree of acceptance, of precision, of relevance” (p. 549). Available online for purchase or by subscription.

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      • Chinkin, Christine M. “The Challenge of Soft Law: Development and Change in International Law.” International and Comparative Law Quarterly 38.4 (1989): 850–866.

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        In a mere sixteen pages, Chinkin, with far-sighted thoroughness, adopts a position that evaluates the pros and cons of soft law and its application to economic law, taking into account its impact in law-making procedures and in implementation and adjudication of international law. A must-read article when approaching the subject. Available online for purchase or by subscription.

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        • D’Aspremont, Jean, and Tanja Aalberts, eds. “Symposium on Soft Law.” Leiden Journal of International Law 25.2 (2012): 309–372.

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          D’Aspremont and Aalberts trigger the debate on soft law that Ellis and Goldman develop passionately with differing and converging theoretical approaches to soft law. Ellis summarizes the spirit of the symposium in affirming that the role of soft law is “to provoke investigation into, and debate about, the nature, sources, validity, and legitimacy of law” (p. 372).

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          • Klabbers, Jan. “The Redundancy of Soft Law.” Nordisk Journal of International Law 65.2 (1996): 167–182.

            DOI: 10.1163/15718109620294889Save Citation »Export Citation »E-mail Citation »

            This must-read work asserts that the notion of soft law is redundant since “the traditional binary conception of law is well capable of performing the functions usually ascribed to soft law,” even though it “cannot be said to be legally insignificant either” (pp. 167–168). Available online for purchase or by subscription.

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            • Pauwelyn, Joost, Ramses A. Wessel, and Jan Wouters, eds. Informal International Lawmaking. Oxford: Oxford University Press, 2012.

              DOI: 10.1093/acprof:oso/9780199658589.001.0001Save Citation »Export Citation »E-mail Citation »

              This work provides a valuable contribution from a multidisciplinary perspective to the study of soft law. It includes extensive empirical studies of scholars and practitioners analyzing informal international law-making around three axes, namely output informality, process informality, and actor informality, in aiming to assess if this informality jeopardizes transnational law-making accountability.

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              • Shelton, Dinah, ed. Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Oxford: Oxford University Press, 2000.

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                Groundbreaking work of the American Society of International Law evaluating nonbinding norms and discussing compliance with soft law through an assessment of a wide variety of nonbinding instruments on key subjects. Valuable introductory chapters are followed by studies of sectors and commentaries to these studies written by well-reputed experts. A must-read work.

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                • Weil, Prosper. “Towards Relative Normativity in International Law?” American Journal of International Law 77 (1983): 413–442.

                  DOI: 10.2307/2201073Save Citation »Export Citation »E-mail Citation »

                  A much-quoted landmark work critical of the notion of “relative normativity,” warning not to blur the distinction between normative and non-normative rules and to differentiate between normative and pre-normative acts in the international norm-creating process. A must-read article for scholars and students approaching the subject. Available online for purchase or by subscription. A version in French is available: “Vers une normativité relative en droit international?” Revue générale de droit international public 86 (1982): 5–47.

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                  Textbooks

                  The most authoritative classic textbooks on international law do not refer to soft law since it is a relatively recent addition to the international legal system. Modern textbooks, also reflecting the academy’s dialectical positions on soft law, ignore it or acknowledge it in its different roles in international law. Crawford and Koskenniemi 2012 is an up-to-date reference textbook that deals with soft law among “techniques and arenas” and in which it is noted in most chapters regarding core issues of how international law is made, identified, and enforced, and as a factor “seeking to influence the course or content of international law” (p. 11). A few textbooks include specific chapters on soft law, such as Boyle 2010, which provides an insightful analysis of the value of soft law from a law-making perspective. Dixon 2007 incorporates soft law in a chapter on the sources of international law as does Shaw 2008, but the latter declares it not to be law. Dunoff, et al. 2010 is a casebook that gives a down-to-earth practical approach to soft law. In analyzing soft law, French-language writers place it among “les modes de formation volontaires,” highlighting the consensual and nonconventional nature of soft law (see Daillier, et al. 2009). The Spanish academy is represented by Remiro Brotons 2007, a most thought-provoking textbook (in Spanish) defining soft law in order to distinguish it from nonjuridical agreements. In the case of European Law, references to soft law are notoriously lacking, a fact criticized in Peters 2011: “textbooks and general courses on European Union Law still either do not mention soft law at all or only treat it in an extremely cursory fashion with only a few standard examples” (p. 21).

                  • Boyle, Alan E. “Soft Law in International Law Making.” In International Law. 3d ed. Edited by Malcolm Evans, 122–140. Oxford: Oxford University Press, 2010.

                    DOI: 10.1093/he/9780199565665.001.0001Save Citation »Export Citation »E-mail Citation »

                    Insightful analysis of the value of soft law from a law-making perspective. Soft law is also referred to in other chapters, including in “International Law and ‘Relative Normativity’” (pp. 141–171) by Dinah Shelton and in “International Environmental Law” by Catherine Redgwell (pp. 693–696). An excellent reference source for those searching for a substantial introduction.

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                    • Crawford, James, and Martti Koskenniemi, eds. The Cambridge Companion to International Law. Cambridge, UK: Cambridge University Press, 2012.

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                      An invaluable up-to-date reference textbook edited by expert internationalists dealing with soft law among “techniques and arenas” and noting it in most chapters regarding core issues of how international law is made, identified, and enforced and as a factor “seeking to influence the course or content of international law” (p. 21).

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                      • Daillier, Patrick, Alain Pellet, Mathias Forteau, and Daniel Müller. Droit international public. 8th ed. Paris: L. G. D. J, 2009.

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                        Thorough textbook studying soft law as situated among “les modes de formation volontaires,” namely the voluntary law-making processes of international law, as nonconventional acts since they are negotiated and agreed to by states to rule their relationships but they are not subject to the Vienna Convention or the principle of pacta sunt servanda.

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                        • Dixon, Martin. Textbook on International Law. 6th ed. Oxford: Oxford University Press, 2007.

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                          A readily accessible textbook treating soft law in a chapter on the sources of international law, defining it as a term of art used to describe two different phenomena: those rules of international law that do not stipulate concrete rights or obligations and the principles de lege ferenda (p. 50).

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                          • Dunoff, Jeffrey L., Steven Ratner, and David Wippman. International Law: Norms, Actors, Process—A Problem-Oriented Approach. 3d ed. New York: Aspen, 2010.

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                            A leading casebook in the United States that deals with soft law from an interdisciplinary, transversal approach that is focused on cases studies that treat contemporary problems such as genocide, formation of new states, terrorism, and climate change.

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                            • Peters, Anne. “Soft Law as a New Mode of Governance.” In The Dynamics of Change in EU Governance. Edited by Udo Diedrichs, Wulf Reiners, and Wolfgang Wessels, 21–51. Cheltenham, UK: Edward Elgar, 2011.

                              DOI: 10.4337/9780857930316Save Citation »Export Citation »E-mail Citation »

                              Peters justifiably criticizes the fact that “textbooks and general courses on European Union Law still either do not mention soft law at all or only treat it in an extremely cursory fashion with only a few standard examples” (p. 21).

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                              • Remiro Brotons, Antonio. Derecho internacional. 2d ed. Valencia, Spain: Tirant Lo Blanch, 2007.

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                                States soft law “is not a tertius genus between law and non-law, but an open expression of law that can be manifested in treaties as well as in other means of formation of international obligations and juridical norms” (p. 336). Considers nonjuridical agreements can have soft law provisions but are not soft law.

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                                • Shaw, Malcolm. International Law. 6th ed. Cambridge, UK: Cambridge University Press, 2008.

                                  DOI: 10.1017/CBO9780511841637Save Citation »Export Citation »E-mail Citation »

                                  Clearly states that, although soft law is not law, it does not lack influence. Shaw studies it in a chapter on sources. To distinguish it from binding instruments, he relies not on the title of the document but on “the intention of the parties as inferred from all the relevant circumstances . . .” (p. 111).

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                                  Concept and Definitions

                                  Many authors acknowledge that no uniform opinion exists among scholars regarding the definition of “soft law.” In some cases, authors discuss different subjects under the same broad heading, and Guzman and Meyer 2011 considers that “this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them” (p. 171). Shelton 2010 points out that “there is no accepted definition of ‘soft law’ but it usually refers to any international instrument other than a treaty containing principles, norms, standards, or other statements of expected behavior” (p. 165). Some works, such as Gruchalla-Wesierski 1984–1985 and Baxter 1980 (cited under General Overviews) include both legal and nonlegal norms in the definition, while others, for example Virally 1983, restrict the term to legal norms, usually created by treaty, that are vague with respect to their content or weak with respect to the requirements of the obligation. Moreover, Meyer 2009 defines soft law as those obligations that, while not legally binding themselves, are given some legal effect through separate international and domestic legal instruments. Abbott and Snidal 2000 refers to soft law in characterizing the concept and process of legalization from which soft law stems as a deviation from the attributes of hard legalization, namely obligation, precision, and delegation, since it deviates from how law works normatively. D’Aspremont and Aalberts 2012 (cited under General Overviews) affirms: “Definitions of soft law often refer to a variety of characteristics, including lack of precision, open-endedness, lack of enforceability, as well as the type of actors that engage in norm generation. Ultimately, these features link to the distinction between law and non-law” (p. 303). Goldmann 2012 notes that it is not surprising that, among legal theory scholars, soft law has provoked, instead of unanimity, a fierce resistance to endorsing a common understanding of the notion, since it implies a revision of the whole foundation of international law, questioning acceptance of legal positivism, legal realism, critical legal studies, and global administrative law and the legitimacy of discursive approaches. Because soft law enjoys a wide range of forms of normativity with different degrees of legality, it draws the ire of those scholars who do not accept the idea of continuum in its legal existence. Thus, a consideration of soft law requires a comparison of the positions of the advocates of its existence as well as the detractors, who, such as Jan Klabbers (Klabbers 1996, cited under Binary Approach versus Continuum), call for its suppression and reject it as redundant. On the other hand, authors in works such as Pellet 1992 accept the idea of an undefined penumbra in which soft law develops. These positions are developed in the section Binary Approach versus Continuum. But as Kal Raustiala points out: “While soft law is a widely used phrase today, it does not generally appear in official documents: in other words, agreements or resolutions are rarely if ever explicitly labeled as soft law instruments. Instead, analysts ex post claim they represent instances of soft law” (Raustiala 2005, p. 595; cited under Binary Approach versus Continuum).

                                  • Abbott, Kenneth, and Duncan Snidal. “Hard and Soft Law in International Governance.” International Organization 54 (2000): 421–456.

                                    DOI: 10.1162/002081800551280Save Citation »Export Citation »E-mail Citation »

                                    A landmark work in American scholarship, it refers to soft law as a “shorthand term” so as “to distinguish this broad class of deviations from hard law—and, at the other extreme, from purely political arrangements in which legalization is largely absent” (p. 422).

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                                    • Goldmann, Matthias. “We Need to Cut Off the Head of the King: Past, Present and Future Approaches to International Soft Law.” Leiden Journal of International Law 25.2 (2012): 335–368.

                                      DOI: 10.1017/S0922156512000064Save Citation »Export Citation »E-mail Citation »

                                      Assesses soft law through the varying approaches adopted by different schools of thought and the way they answer two of its challenges: “(1) the fact that international soft law is today often the functional equivalent of international treaties and (2) the contestations of the legitimacy of soft law” (p. 335). Available online for purchase or by subscription.

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                                      • Gruchalla-Wesierski, Tadeusz. “A Framework for Understanding ‘Soft Law.’McGill Law Journal 30.1 (1984–1985): 37–88.

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                                        Offers a clear definition of economic soft law that can be generally applied as “legal or non-legal obligations which create the expectation that they will be used to avoid or resolve disputes. They are not subject to effective third party interpretation, and their subject matter and formation are international in nature” (p. 44).

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                                        • Guzman, Andrew T., and Timothy Meyer. “International Soft Law.” Journal of Legal Analysis 2.1 (2010): 171–225.

                                          DOI: 10.1093/jla/2.1.171Save Citation »Export Citation »E-mail Citation »

                                          Approaches the concept of soft law in proposing four complementary explanations for why states use soft law and that includes a much broader range of state behavior than heretofore, including the use of soft law to solve coordination games, the “loss avoidance,” and the “delegation” theories and the international common law theory (p. 171).

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                                          • Meyer, Timothy. “Soft Law as Delegation.” Fordham International Law Journal 32.3 (2009): 888–942.

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                                            Defines soft legal obligations as “those international obligations that, while not legally binding themselves, are created with the expectation that they will be given some indirect legal effect through related binding obligations under either international or domestic law” (p. 890).

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                                            • Pellet, Alain. “Contre la tyrannie de la ligne droite: Aspects de la formation des normes en droit international de l’économie et du developpement.” Thesaurus Acroasium 19 (1992): 291–356.

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                                              Pellet offers a wide variety of synonyms used by francophone jurists to name soft law (“droit mou”), including, to accept it: “vert, tendre, déclamatoire” (green, tender, declamatory), and to deny it: “pré-droit, para-droit, méta-droit.” He characterizes it as “more naked than general international law because of the rawness of its formation process, in which power relations play more openly” (p. 346).

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                                              • Shelton, Dinah. “International Law and Relative Normativity.” In International Law. Edited by Malcolm Evans, 141–171. New York: Oxford University Press, 2010.

                                                DOI: 10.1093/he/9780199565665.001.0001Save Citation »Export Citation »E-mail Citation »

                                                Reference work in which the author concludes: “There is no accepted definition of ‘soft law’ but it usually refers to any international instrument other than a treaty containing principles, norms, standards, or other statements of expected behavior,” even though the term is also “employed to refer to the content of a binding instrument” (pp. 164–165).

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                                                • Virally, M. “La distinction entre textes internationaux ayant une portée juridique dans les relations mutuelles entre leurs auteurs et textes qui en sont dépourvus.” Institute of International Law Yearbook/Annuaire de l’Institut de Droit International 60-I Session of Cambridge (1983): 166–357.

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                                                  A work by the rapporteur of the Institute of International Law on international instruments lacking legal significance. Virally thoroughly examines the wide range of these instruments and acknowledges the different positions held by the members of the institute, concluding that both legal and political instruments—“engagements politiques et juridiques”—are based on good faith.

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                                                  Binary Approach versus Continuum

                                                  Two positions emerged from the polarizing debate on the concept and definitions of soft law: that of those for whom the binary nature of law cannot explain the complexity of the international legal order in a globalized world and who accept a graduated normativity (Abbott, et al. 2000; Baxter 1980, cited under General Overviews; Besson 2010; Boyle and Chinkin 2007, cited under International Law-Making Process and Virally 1983, cited under Concept and Definitions). At the other extreme, as Jan Klabbers reminds us, “British philosopher David Hume wrote a passionate plea for recognition of what might be called the binary character of law. Having noted that vice and virtue may come in various shades of grey and ‘run insensibly into each other,’ he dismissed such a notion when it came to law” (Klabbers 1996, p. 167). Others who reject the idea of soft law, seeing it as redundant, consider that it turns into hard law or does not constitute law at all, and so it weakens normativity, which Weil (1991) asserts and who is seconded by Abi-Saab 1987 (cited under International Law-Making Process), D’Aspremont and Aalberts 2012 (cited under General Overviews), Brunnée 2005 (cited under International Organizations Resolutions), Klabbers 1996, and Raustiala 2005, the latter of whom terms the choice between legally binding and nonlegally binding accords a choice between contracts (treaties) and pledges (non-treaties) (p. 584). These authors, as Jaelle Ellis points out, “while supporting a binary distinction between law and non-law, are not satisfied with a voluntarist approach to the rule of recognition” (Ellis 2012, p. 371; cited under Nongovernmental Actors). Dinah Shelton warns: “If and how the term ‘soft law’ should be used depends in large part on whether one adopts the binary or continuum view of international law” (Shelton 2010, p. 165). The idea of continuum links also with the idea of penumbra, as Pellet 1984 notes: “Between the light of law and the darkness of non-law lies a zone of penumbra whose venerable theory of sources accounts for it poorly” (p. 488), an assertion with which Peters and Pagotto 2006 concurs. It also links with hierarchy. Shelton 2010 and Besson 2010 highlight different degrees of normativity, which can range “from being low (or soft), as with legal norms in the making, to being imperative, as with norms of ius cogens,” as Besson 2010 asserts (p. 165). From an interdisciplinary approach, Abbott, et al. 2000 considers that “there is, however, no bright line dividing legalized from non-legalized institutions. Instead, there is an identifiable continuum from hard law through varied forms of soft law, each with its individual mix of characteristics, to situations of negligible legalization” (p. 418). Shaffer and Pollack 2010 transcends these categories in proposing that we can expect actors to employ hard law and soft law as alternatives, complements, or antagonists (p. 706).

                                                  • Abbott, Kenneth W., Robert O. Keohane, Andrew Moravcsik, Anne Marie Slaughter, and Duncan Snidal. “The Concept of Legalization.” International Organization 54 (2000): 401–419.

                                                    DOI: 10.1162/002081800551271Save Citation »Export Citation »E-mail Citation »

                                                    This reference work posits that the “concept of legalization encompasses a multidimensional continuum, ranging from the ‘ideal type’ of legalization, where all three properties [obligation, precision and delegation] are maximized . . . through multiple forms of partial or ‘soft’ legalization involving different combinations of attributes” (p. 402).

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                                                    • Besson, Samantha. “Theorizing the Sources of International Law.” In The Philosophy of International Law. Edited by Samantha Besson and John Tasioulas, 163–185. Oxford: Oxford University Press, 2010.

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                                                      Provides a valuable reflection in arguing: “The normativity of a legal rule may vary in degree. . . . International legal norms as well may have different degrees of normativity and can range from being low (or soft) as with legal norms in the making to being imperative as with norms of ius cogens” (p. 165).

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                                                      • Klabbers, Jan. “The Redundancy of Soft Law.” Nordisk Journal of International Law 65.2 (1996): 167–182.

                                                        DOI: 10.1163/15718109620294889Save Citation »Export Citation »E-mail Citation »

                                                        A must-read work to study the criticisms of soft law based on the binary character of law as defined by David Hume; concludes that “the beauty of law is . . . it can translate all the various political or moral subtleties and nuances in simple dichotomies such as binding/non-binding, legal/illegal” (p. 182). Available online for purchase or by subscription.

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                                                        • Pellet, Alain. “‘Le bon droit et l’ivraie: Plaidoyer pour l’ivraie’: Remarques sur quelques problèmes de méthode en droit international du développement.” In Le droit des peuples à disposer d’eux-mêmes: Méthodes d’analyse du droit international; Mélanges offerts à Charles Chaumont. Edited by Jean Charpentier, et al., 465–493. Paris: Pédone, 1984.

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                                                          Thought-provoking study that affirms that soft law is a matter of shades. Pellet affirms: “Between the light of law and the darkness of the non-law lies a zone of penumbra whose venerable theory of sources accounts poorly: it studies the form of norm, not its formation” (p. 488).

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                                                          • Peters, Anne, and Isabella Pagotto. Soft Law as a New Mode of Governance: A Legal Perspective. New Modes of Governance Project No. CITI-CT-2004-506392 (2006).

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                                                            A very valuable deductive approach to soft law, starting from the idea of graduated normativity and going on to a prototype theory of concepts; submits that soft law is in the penumbra of law and that it can be distinguished from purely political documents more or less readily, depending on its closeness to the prototype of law.

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                                                            • Raustiala, Kal. “Form and Substance in International Agreements.” American Journal of International Law 99.3 (2005): 581–614.

                                                              DOI: 10.2307/1602292Save Citation »Export Citation »E-mail Citation »

                                                              Polarizing the debate, Raustiala argues: “The concept of soft law necessarily rejects the idea that law is binary, since it purports to identify something between hard law and no law. . . . An agreement either is, or is not, legally binding: there is no in-between, nor is it analytically helpful to refer to ‘soft law’” (p. 595). Available online for purchase or by subscription.

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                                                              • Shaffer, Gregory, and Mark Pollack. “Hard vs. Soft: Alternatives, Complements, and Antagonists in International Governance.” Minnesota Law Review 94 (2010): 706–799.

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                                                                Claims that the interaction of hard and soft law is not a binary either/or question, but one of specifying the conditions under which we can expect actors to employ both hard and soft law as alternatives, complements, or antagonists (p. 707).

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                                                                • Shelton, Dinah. “International Law and ‘Relative Normativity.’” In International Law. 3d ed. Edited by Malcolm Evans, 145–172. Oxford: Oxford University Press, 2010.

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                                                                  Regarding Weil’s “relative normativity,” Shelton focuses the debate on whether binding and nonbinding instruments are strictly alternative or whether they form two ends of a continuum.

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                                                                  The Sources of International Law

                                                                  The status of soft law as a new source of international law is not accepted unanimously. Rather, it is rejected as a source by some authors, as discussed in Besson 2010. Thus, the passionate debate among scholars on this topic constitutes another effort to uncover the sources of international law. Dupuy 1991 states: “The existence of ‘soft’ law compels us to re-evaluate the general international law-making process and, in doing so, illuminates the difficulty of explaining this phenomenon by referring solely to the classical theory of formal sources of public international law” (p. 435). Hilary Charlesworth points out that “despite the development of soft law, modern international law-making continues to invoke the four categories set out in the ICJ Statute as the primary sources of law and understands the effect of soft law principles in relation to them, rather than as a distinct source of law. Soft law thus interacts with, and blurs the boundaries of, the traditional sources of international law, but it does not replace them” (Charlesworth 2012, p. 199), a position shared by Nanda 2005. Given the bipartisan nature of the debate on soft law, scholars, depending on their position on soft law, ignore, deny, or grant it a new place among the traditional sources of international law. Pellet 2012 calls soft law a “quasi-source” (p. 771). Bodansky 2011 defines soft law regarding its lack of source, considering that “the phrase ‘soft law’ suggests that they bear a family resemblance to hard law such as treaties (both are species of the genus law) but fall short in an important respect, since they lack a ‘legal’ source” (p. 14). Dinah Shelton criticizes the fact that “the traditional consent-based international legal regime lacks a legislature to override the will of dissenting states, but efforts to affect their behavior are being made . . . through expanding the concept of international law to include soft law” (Shelton 2006, p. 302). Castañeda 2013 is a study of the sources of international law in which these sources are contrasted with soft law, and the author concludes that sources should not remain static but rather develop parallel to developments in contemporary international relations (p. 356).

                                                                  • Besson, Samantha. “Theorizing the Sources of International Law.” In The Philosophy of International Law. Edited by Samantha Besson and John Tasioulas, 163–185. Oxford: Oxford University Press, 2010.

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                                                                    Thought-provoking reflection on the sources of international law. Besson concludes that “the extensive development of soft law as opposed to hard law is a sign a contrario of the existence of a finite and precise list of formal sources of international law” (p. 180).

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                                                                    • Bodansky, Daniel. The Art and Craft of International Environmental Law. Cambridge, MA: Harvard University Press, 2011.

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                                                                      Considers that the “instruments of soft law” “suggest that they bear a family resemblance to hard law such as treaties (both are species of the genus law) but fall short in an important respect, since they lack a ‘legal’ source (that is why they are soft rather that hard)” (p. 14).

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                                                                      • Cárdenas Castañeda, F. A. “A Call for Rethinking the Sources of International Law: Soft Law and the Other Side of the Coin.” Anuario Mexicano de Derecho Internacional 13 (2013): 355–403.

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                                                                        Even though the author pleads “that the process of law ascertainment should remain formal as to preserve the integrity and coherence of the international system,” Cárdenas Castañeda also considers that “soft law instruments can react more rapidly to the current challenges of the international community which cannot be faced by the obsolete understanding of the sources” (p. 403).

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                                                                        • Charlesworth, Hilary. “Law-Making and Sources.” In The Cambridge Companion to International Law. Edited by James Crawford and Martti Koskenniemi, 187–202. Cambridge, UK: Cambridge University Press, 2012.

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                                                                          A very valuable introduction to sources arguing that “soft law is not a source of law in the sense of article 38.1 . . . but rather a category of principles, articulated through instruments or documents not binding as such, whose status is more contested and negotiable than those of hard legal norms” (p. 198).

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                                                                          • Dupuy, Pierre-Marie. “Soft Law and the International Law of the Environment.” Michigan Journal of International Law 12 (1991): 420–435.

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                                                                            Acknowledges the existence of a new process of normative creation since “‘Soft” law certainly constitutes part of the contemporary law-making process but, as a social phenomenon, it evidently overflows the classical and familiar legal categories by which scholars usually describe and explain both the creation and the legal authority of international norms” (p. 420).

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                                                                            • Nanda, Ved P. “The Role of International Organizations in Non-contractual Lawmaking.” In Developments of International Law in Treaty Making. Edited by Rüdiger Wolfrum and Volker Röben, 157–170. New York: Springer, 2005.

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                                                                              Even though the author considers that “it would stretch the reading of the Statute of the International Court of Justice beyond recognition to argue that non-treaty agreements are acknowledged as a source of international law by the ICJ” (p. 147), Nanda argues that “they contribute significantly to norm creation in the international arena” (p. 169).

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                                                                              • Pellet, Alain. “Article 38.” In The Statute of the International Court of Justice: A Commentary. 2d ed. Edited by Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-Frahm, 731–870. Oxford: Oxford University Press, 2012.

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                                                                                Brilliant referential work that approaches soft law as a “quasi source” from the perspective of the International Court’s mission and considers recommendations and gentlemen agreements as not legally binding but producing legal effects, and assesses its relevance and validity with respect to the categories of formal and material sources.

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                                                                                • Shelton, Dinah. “Normative Hierarchy in International Law.” American Journal of International Law 100.2 (2006): 291–323.

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                                                                                  Brilliant approach to sources arguing that “the traditional consent-based international legal regime lacks a legislature to override the will of dissenting states, but efforts to affect their behavior are being made, first, through the doctrine of peremptory norms or universal law applicable to all states, and, second, through expanding the concept of international law to include soft law” (p. 302). Available online for purchase or by subscription.

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                                                                                  International Law-Making Process

                                                                                  Both proponents and opponents of the notion of soft law agree on the dynamic nature of international lawmaking, and the topic has engendered much debate. Abi-Saab 1987 considers that “the international community invented a legislative process without legislative power, and so it produces soft law and then calls on custom to sanction it as customary sanction of normative resolutions” (p. 34). In Boyle and Chinkin 2007, the authors affirm: “Soft law is manifestly a multi-faceted concept, whose relationship to treaties, custom and general principles is both subtle and diverse. At its simplest soft law facilitates progressive evolution of international law” (p. 199). In Wolfrum and Röben 2005, international lawmaking is debated in which soft law emerges as an element to be discarded or valued, or even as an alternative to the inadequacy of lawmaking by international treaties. On the opposite side, in D’Aspremont and Aalberts 2012, Ellis and Goldmann state that “dissatisfaction comes from a characterization of soft law as having an indirect importance in the legal process as merely lex ferenda or the avant-garde of legalization” (p. 310). Klabbers 1998 insists “that law can only be made through the procedures that themselves have been created to regulate the creation of law, the resulting norms, no matter how nobly inspired, will always remain suspect” (p. 387). Dinah Shelton argues “in this consent-based system, declarations, resolutions, memoranda of understanding, and other non-binding instruments are not adopted as law, soft or hard, although they frequently are intended to alter the behavior of their targets. While they often encompass strong political commitments or moral obligations, they become international law only when they emerge in customary international law or are incorporated into a treaty” (Shelton 2000, p. 554). The possibility that rules and principles contained in a soft law instrument may be transformed into hard law depends on the subsequent practice of states and international organizations, and that possibility is found in the delegation theory in Meyer 2009 (cited under Concept and Definitions), which asserts that some soft law acquires indirect legal effect through related binding obligations under either international or domestic law. This practice may entail the incorporation of these soft law instruments into treaties and domestic law or can crystallize in customary law as considered in the sections Treaties, Customary Law, and International Organizations Resolutions. However, for a state-of-the-art approach to international law-making process, we need to consider the impact of informal processes of international lawmaking, which are analyzed in Pauwelyn, et al. 2012 (cited under General Overviews), as well as the pluralistic and fragmented nature of the international legal order in which the barriers between different normative regimes have been broken down by soft law interactions, a fact criticized in Shaffer and Pollack 2010.

                                                                                  • Abi-Saab, Georges. Recueil des Cours. Vol. 207 (1987–VII), Cours général de droit international public. The Hague: Martinus Nijhoff, 1987.

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                                                                                    An inspiring and thought-provoking volume in which the author argues that the international community invented a legislative process without legislative power, producing soft law, which was still state made, and then relying on custom to sanction it as a customary extension of the prescriptions of law-making treaties or as a customary sanction of normative resolutions (p. 33).

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                                                                                    • Boyle, Alan E., and Christine Chinkin. The Making of International Law. Oxford: Oxford University Press, 2007.

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                                                                                      Considers that “contemporary international law is often the product of a complex and evolving interplay of instruments, both binding and non-binding, and of custom and general principles” (p. 210). This is so that the distinction between “hard” and “soft” law “is not necessarily decisive in law-making terms” (p. 210).

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                                                                                      • D’Aspremont, Jean, and Tania Aalberts, eds. “Symposium on Soft Law.” Leiden Journal of International Law 25.2 (2012): 309–372.

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                                                                                        Thought-provoking introduction stating the authors’ ideas about soft law in the debate on its function in the international law-making system. The positions of Ellis and Goldman are summarized and considers that their “dissatisfaction comes from a characterization of soft law as having an indirect importance in the legal process as merely lex ferenda or the avant-garde of legalization” (p. 310).

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                                                                                        • Klabbers, Jan. “The Undesirability of Soft Law.” Nordic Journal of International Law (1998): 381–394.

                                                                                          DOI: 10.1163/15718109820295741Save Citation »Export Citation »E-mail Citation »

                                                                                          A must-read article that notes: “By creating uncertainty at the edges of legal thinking, the concept of soft law contributes to the crumbling on the entire legal system. Once political or moral concerns are allowed to creep back into the law, the law loses its relative autonomy from politics or morality . . .” (p. 387). Available online for purchase or by subscription.

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                                                                                          • Shaffer, Gregory, and Mark Pollack. “Hard vs. Soft: Alternatives, Complements, and Antagonists in International Governance.” Minnesota Law Review 94 (2010): 706–799.

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                                                                                            Discusses the interaction between hard law and soft law so as to understand the current pluralistic international legal order that “permits one regime to signal to decision makers in another regime to take account of developments in other spheres of international law and politics, of which those decision makers might otherwise be unaware” (p. 799).

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                                                                                            • Shelton, Dinah. “Editor’s Concluding Note: The Role of Non-binding Norms in the International Legal System.” In Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Edited by Dinah Shelton, 554–556. Oxford: Oxford University Press, 2000.

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                                                                                              Brilliant conclusion in stating that “in this consent-based system, declarations, resolutions, . . . and other non-binding instruments are not adopted as law, soft or hard, although they frequently are intended to alter the behavior of their targets . . . [T]hey become international law only when they emerge in customary international law or are incorporated into a treaty” (p. 514).

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                                                                                              • Wolfrum, Rüdiger, and Volker Röben, eds. Developments of International Law in Treaty Making. New York: Springer, 2005.

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                                                                                                Valuable collective study bringing together contributions from experts to discuss the most challenging issues of the subject. Soft law emerges in the discussions as an element to be considered, valued, or discarded depending on the different approaches, some contributors even considering it as an alternative to the inadequacy of lawmaking by international treaties.

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                                                                                                Treaties

                                                                                                Hanspeter Neuhold notes: “Treaties reflect the ‘classical’ state-centred and sovereignty-based international legal system. It is epitomized in the principle that only states that express their consent to be bound are obligated by the provisions of a treaty to the extent of this consent” (Neuhold 2005, p. 39). Soft law is inevitably connected with treaty obligations in two forms: first, weak or broadly defined provisions in treaties that Simma 1983 calls soft law “masquerading in treaty clothes” (p. 489). Chinkin 1989 (cited under General Overviews) says: “the use of a treaty form does not of itself ensure a hard obligation. Equally it is not required by the Vienna Convention, which does not specify the nature of obligations and rights covered by treaties, nor does it distinguish between hard law treaties or soft treaties” (p. 851). Moreover, as Baxter 1980 points out, three types of norms in international agreements make up soft law: the pactum de contrahendo, the non-self-executing article of a treaty requiring further agreements to give it effect, and the hortatory provisions. Baxter notes that these treaty norms “have the common characteristic of not creating legal obligations which are susceptible of enforcement, in whatever sense the concept of ‘enforcement’ is employed” (p. 554). Second, soft law is “an intermediate stage in treaty making, and sometimes never gets beyond that stage, not even being its purpose” (Aust 2007, p. 53), an idea shared by Boyle 1999, Hillgenberg 1999, and Shelton 2000 (the latter cited under General Overviews). Boyle and Chinkin 2007 (cited under International Law-Making Process) goes further, pointing out that soft law may represent an attractive alternative to lawmaking by treaty as well as being part of the multilateral treaty-making process, since “it may be easier for some states to adhere to non-binding instruments because they can avoid the domestic treaty ratification process” and “they will normally be easier to supplement, amend or replace than treaties, particularly when all that is required is the adoption of a new resolution by an international institution” (p. 214). In this line, Gruchalla-Wesierski 1984–1985 (cited under Concept and Definitions) adds that “even non-legal soft law may be said to constitute unilateral termination of a treaty” (p. 55). However, this happens at the expense of the credibility of the commitments, as criticized in Guzman 2005. Also criticizing soft law, Danilenko 1993 considers that its definitional manipulations will erode the concept of legal obligations, and the author rejects the “precipitous transformation of ‘soft law’ into generally binding hard law by means of simple reference” (p. 71). Boyle and Chinkin 2007 (cited under Human Rights) also notes that, even though the International Law Commission has preferred multilateral treaties as the main instrument of codification, it also now uses soft law (see p. 183).

                                                                                                • Aust, Anthony. Modern Treaty Law and Practice. Cambridge, UK: Cambridge University Press, 2007.

                                                                                                  DOI: 10.1017/CBO9780511811517Save Citation »Export Citation »E-mail Citation »

                                                                                                  Aust roots his analysis in state practice, which enriches this work that approaches soft law by comparing it with treaties. Considers “international instruments which their makers recognize are not treaties, even if they employ mandatory language such as ‘shall,’ but have as their purpose the promulgation of norms (albeit not legally binding) of general or universal application” (pp. 52–53).

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                                                                                                  • Baxter, Richard. “International Law in ‘Her Infinite Variety.’” International and Comparative Law Quarterly 29.4 (1980): 549–566.

                                                                                                    DOI: 10.1093/iclqaj/29.4.549Save Citation »Export Citation »E-mail Citation »

                                                                                                    Distinguishes three types of soft law norms in international agreements: “the pactum de contrahendo, the non-self-executing article of a treaty requiring further agreements to give it effect, and the hortatory provision, which have the common characteristic of not creating legal obligations which are susceptible of enforcement” (p. 554). Available online for purchase or by subscription.

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                                                                                                    • Boyle, Alan E. “Some Reflections on the Relationship of Treaties and Soft Law.” International and Comparative Law Quarterly 48.4 (1999): 901–913.

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                                                                                                      A much-quoted article in which the author praises soft law as “manifestly a multi-faceted concept, whose relationship to treaties is both subtle and diverse,” presenting alternatives to treaties in certain circumstances and complementing them, while also providing different ways of understanding their legal effect and altogether being another “tool in the professional lawyer’s armory” (p. 913). Available online for purchase or by subscription.

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                                                                                                      • Danilenko, Gennady M. Law-Making in the International Community. Dordrecht, The Netherlands: Martinus Nijhoff, 1993.

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                                                                                                        Rejecting soft law whose definitional manipulations will erode the concept of legal obligations, Danilenko warns against those provisions of treaties with limited participation that may become applicable even to states that do not consent to them and criticizes this “precipitous transformation of ‘soft law’ into generally binding hard law by means of simple reference” (p. 71).

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                                                                                                        • Guzman, Andrew T. “The Design of International Agreements.” European Journal of International Law 16 (2005): 579–612.

                                                                                                          DOI: 10.1093/ejil/chi134Save Citation »Export Citation »E-mail Citation »

                                                                                                          Guzman argues that when states draft their agreements they often make choices, such as the choice of soft law. A soft law agreement reduces the credibility of the commitment relative to a treaty because it represents a lower level of commitment (p. 583).

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                                                                                                          • Hillgenberg, Hartmut. “A Fresh Look at Soft Law.” European Journal of International Law 10 (1999): 499–517.

                                                                                                            DOI: 10.1093/ejil/10.3.499Save Citation »Export Citation »E-mail Citation »

                                                                                                            A much-quoted and interesting study, characterizing non-treaty agreements as “fact” and not as “source.” “Soft law may be ‘pre-droit’ in the sense that it leads to treaty obligations. This is, however, generally far from being its purpose” (p. 502).

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                                                                                                            • Neuhold, Hanspeth. “The Inadequacy of Law-Making by International Treaties: ‘Soft Law’ as an Alternative?” In Developments of International Law in Treaty Making. Edited by Rüdiger Wolfrum and Volker Röbin, 39–52. New York: Springer, 2005.

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                                                                                                              Considers soft law as “an elusive concept which especially conservative lawyers find hard to accept. . . . However they are closing the eyes to the reality that rules which do not fully meet the criteria required by the recognized sources, . . . have been playing an increasingly important role in international practice . . .” (p. 47).

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                                                                                                              • Simma, Bruno. “Consent: Strains in the Treaty System: The Structure and Process of International Law.” In The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory. Edited by Ronald St. J. Macdonald and Douglas M. Johnston, 485–511. The Hague: Martinus Nijhoff, 1983.

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                                                                                                                Considers that “voting and consensus procedures at international conferences often indicate soft law because these procedures can serve as substitute, albeit often only a temporary substitute, for the harder procedures of signature and ratification” (p. 488).

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                                                                                                                Customary Law

                                                                                                                Abi-Saab 1987 argues that resolutions of international organizations and multilateral declarations by states may affect customary international law, producing a new induced custom and not the spontaneous custom of the 19th century. Thus, instruments of soft law may generate state practice and provide evidence of opinio iuris in support of a customary rule, as Baade 1980 and Shelton 2000 suggest, triggering what Dupuy 1982 calls “coutume sauvage” (p. 176). As Boyle and Chinkin 2007 (cited under International Law-Making Process) points out: “whether they provide evidence of existing law, or of the opinio iuris necessary for new law, or of the practice of states, will depend on various factors which must be assessed in each case” (p. 225). Hilary Charlesworth states that “soft law can thus influence the development of customary principles. It has been suggested that this process is in fact typical of modern approaches to customary international law, which start with general statements of rules, in contrast to traditional approaches that focused on specific instances of state practice” (Charlesworth 2012, p. 194). Moreover, soft law instruments may be used to show dissent by the states objecting to the emergence of customary international law, and as Gruchalla-Wesierski 1984–1985 points out: “Soft law that is subsequent and contrary to the custom may indicate that there is no longer opinio iuris for the rule of custom, and thus that it has been ‘abrogated’” (p. 55). Dupuy 2007 considers that “an accumulation of programmatic soft law instruments may help in the progressive affirmation of the emergence of a binding norm,” but concludes that “expressions of opinio iuris that are not sufficiently sustained by practice do not take us particularly far in terms of customary, and thus general, law-making” (p. 459). On the reverse side of this approach, D’Amato 1987 triggers a debate denying any influence of soft law on customary law and, when it does happen, considers it to be “thrashing” this source of law.

                                                                                                                • Abi-Saab, Georges. Recueil des Cours. Vol. 207 (1987–VII), Cours Général de Droit International Public. The Hague: Martinus Nijhoff, 1987.

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                                                                                                                  Considers that resolutions of international organizations and multilateral declarations by states affect customary international law, producing a new induced custom and not the spontaneous custom of the 19th century.

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                                                                                                                  • Baade, Hans W. “The Legal Effects of Codes of Conduct for Multinational Enterprises.” In Studies in Transnational Economic Law. Vol. 1, Legal Problems of Codes of Conduct for Multinational Enterprises. Edited by Norbert Horn, 3–38. Deventer, The Netherlands: Kluwer, 1980.

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                                                                                                                    Concludes that declarations “affect the contents of customary international law because practice in conformity with them is legitimate state practice which defines, or refines international-law rules” but they can be transformed into international law only “by treaty or state practice reflecting the requisite opinio iuris as regards that particular obligation” (p. 38).

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                                                                                                                    • Charlesworth, Hilary. “Law-Making and Sources.” In The Cambridge Companion to International Law. Edited by James Crawford and Martti Koskenniemi, 187–202. Cambridge, UK: Cambridge University Press, 2012.

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                                                                                                                      After analyzing the Nicaragua case before the International Court of Justice and the Texaco arbitration, Charlesworth concludes that soft law can influence the development of customary principles since the legal character of a resolution depends on its type, its form, and the conditions under which it is adopted (see p. 194).

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                                                                                                                      • D’Amato, Anthony. “Trashing Customary International Law.” American Journal of International Law 81 (1987): 101–105.

                                                                                                                        DOI: 10.2307/2202136Save Citation »Export Citation »E-mail Citation »

                                                                                                                        Fueling the debate on the status of UN resolutions, D’Amato concludes: “If voting for a UN Resolution means investing it with opinio iuris, then the latter has no independent content; one may simply apply the UN Resolution as it is and mislabel it ‘customary law’” (p. 101). Available online for purchase or by subscription.

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                                                                                                                        • Dupuy, René-Jean. Recueil des Cours. Vol. 165 (1979–IV), Communauté international et disparités de développement: Cours général de droit international public. The Hague: Martinus Nijhoff, 1982.

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                                                                                                                          Referential work on customary law redefining its concept and distinguishing it from soft law, considered just as droit vert (green law), expressing an insufficient maturity of the rule of law in contradistinction with customary law, this being sage, or sauvage (wild). (“Droit mou, ou mieux droit vert, pour exprimer la maturité insuffisante de la règle de droit,” p. 176.) Also available in René-Jean Dupuy, “Droit déclaratoire et droit programmatoire de la coutume sauvage à la ‘soft law,’” in L’élaboration du droit international public: Colloque de Toulouse, edited by Société Française pour le Droit International (Paris: Société Française pour le Droit International, 1975), pp. 132–148.

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                                                                                                                          • Dupuy, Pierre-Marie. “Formation of Customary International Law and General Principles.” In The Oxford Handbook of International Environmental Law. Edited by Daniel Bodansky, Jutta Brunnée, and Ellen Hey, 449–466. New York: Oxford University Press, 2007.

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                                                                                                                            Casts a light on the debate on the relationship between soft law and customs “as to whether an accumulation of programmatic soft law instruments may help in the progressive affirmation of the emergence of a binding norm,” concluding that the problem lies “with the discrepancy . . . between what states say and what they actually do” (p. 459).

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                                                                                                                            • Gruchalla-Wesierski, Tadeusz. “A Framework for Understanding ‘Soft Law.’McGill Law Journal 30.1 (1984–1985): 37–88.

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                                                                                                                              The author affirms “that soft law norms which are not legal in form can at best provide the psychological element of custom” and “must have been the product of official state action” (p. 54). So a code of conduct created by a nongovernmental organization could not be said to embody any state’s opinio iuris.

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                                                                                                                              • Shelton, Dinah. “Introduction: Law, Non-law and Soft Law.” In Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Edited by Dinah Shelton, 1–19. Oxford: Oxford University Press, 2000.

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                                                                                                                                Argues “in recent years, non-binding instruments sometimes have provided the necessary statement of legal obligation (opinio iuris) to evidence the emergent custom and have assisted to establish the content of the norm. The process of drafting and voting for non-binding normative instruments also may be considered a form of State practice” (p. 1).

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                                                                                                                                International Organizations Resolutions

                                                                                                                                Christiano 2010 observes that “the current system [of international law] is a modified version of the traditional state consent model” (p. 122). Thus, Wolfrum and Röbin 2005 (cited under International Law-Making Process) notes that “it is a salient question whether the existing foundations of international law allow the establishment of international organizations which have normative functions not based upon consensus of the addressees of the respective norms they prescribe” (p. 9). Chinkin 1989 (cited under General Overviews) considers that “the increasing use of soft law forms also reflects the present importance of the organized international and regional, specialized and general institutional bodies for the negotiation, formulation and propagation of principles of international law” (p. 861). Moreover, as Gruchalla-Wesierski 1984–1985 (cited under Concept and Definitions) points out, “where an international organization is the author of soft law, there seems to be little question that the organization is bound in its internal proceedings to act in accordance with it” (p. 52). A special place must be accorded to UN resolutions that have been considered by academia and the case law of the International Court of Justice (analyzed in the section Judicial Decisions). Schachter 1994 reminds us that the UN and its organs were not conceived as legislative bodies but “could act like legislatures by adopting lawmaking treaties and declarations of law” (p. 1). Dupuy 1982 also holds that the resolutions of the General Assembly that have been voted or adopted by consensus are not soft law but international agreements. In this context, international organizations produce soft law as one of the many law-making activities that they now undertake. They adopt international standards, codes of conduct, and guidelines, and they act as “standards setters.” Alvarez 2005 affirms that, with the “ . . . the cumulative effect of their actions across time” (p. 218), they act to increasingly shrink the domain reserved for states. Schermers and Blokker 2011 considers that “even non-binding recommendations contain supranational aspects,” whose overt noncompliance will be resented (p. 777). In the case of the Council of Europe, Polakiewicz 2005 argues that “the creation of soft law instruments remains nevertheless in many cases closely associated with treaties” (p. 288). In the case of the World Trade Organization (WTO), Footer 2010 explains the different functions that soft law can play, in particular, that it can supplement hard law and serve as a precursor to the development of other legal norms. Soft law in the European Union merits a separate section below. Besides international organizations, the conference of the parties must be acknowledged because, as Brunnée 2005 states, these bodies “are forums for law-making” (p. 123).

                                                                                                                                • Alvarez, José. International Organizations as Law Makers. Oxford: Oxford University Press, 2005.

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                                                                                                                                  A must-read volume that criticizes soft law, but takes it into account when examining the UN law-making role as well as the role of international organizations as standards setters. Alvarez points out that “ . . . the cumulative effect of their actions across time is an ever more shrinking domaine réservée for states” (p. 218).

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                                                                                                                                  • Brunnée, Jutta. “Reweaving the Fabric of International Law? Patterns of Consent in Environmental Framework Agreements.” In Developments of International Law in Treaty Making. Edited by Rüdiger Wolfrum and Volker Röbin, 101–126. New York: Springer, 2005.

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                                                                                                                                    Argues that, in the case of multilateral environmental agreements, conferences of the parties “are forums for law-making rather than actual decision-makers.” So “reliance on COP decisions . . . might suggest either that increasingly attenuated consent suffices to produce formally binding obligations, or that a pattern of non-binding regulation is emerging” (p. 123).

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                                                                                                                                    • Christiano, Thomas. “Democratic Legitimacy and International Institutions: The Voluntary Association Model of International Institutions.” In The Philosophy of International Law. Edited by Samantha Besson and John Tasioulas, 119–138. Oxford: Oxford University Press, 2010.

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                                                                                                                                      Argues that the traditional state consent model has been substituted by the voluntary association model of the international system. Considers that “the legitimacy of international institutions and law derives from the fact that the system of international law and institutions is a system of voluntary association among states” (p. 122).

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                                                                                                                                      • Dupuy, René-Jean. Recueil des Cours. Vol. 165 (1979–IV), Communauté international et disparités de développement: Cours général de droit international public. The Hague: Martinus Nijhoff, 1982.

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                                                                                                                                        A reference work in which the author considers that the resolutions of the General Assembly that have been approved by vote or adopted by consensus are not soft law but international agreements, and resolutions with a legal significance must be distinguished from the soft law deprived of it (p. 177). Also in René-Jean Dupuy, “Droit déclaratoire et droit programmatoire de la coutume sauvage à la ‘soft law,’” in L’élaboration du droit international public: Colloque de Toulouse, edited by Société Française pour le Droit International (Paris: Société Française pour le Droit International, 1975), pp. 132–148.

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                                                                                                                                        • Footer, Mary E. “The (Re)turn to ‘Soft Law’ in Reconciling the Antinomies in WTO Law.” Melbourne Journal of International Law 11.2 (2010): 241–276.

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                                                                                                                                          Interesting and thorough examination of the past and present reach of soft law in WTO law and practice, analyzing how it is used as a means of regulating difficult and complex situations, such as the Doha Development Round, and offering mechanisms that have a coordinating, facilitative and informative functions that dominate WTO practice.

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                                                                                                                                          • Polakiewicz, Jörg. “Alternatives to Treaty-Making and Law-Making by Treaty and Expert Bodies in the Council of Europe.” In Developments of International Law in Treaty Making. Edited by Rüdiger Wolfrum and Volker Röbin, 245–290. New York: Springer, 2005.

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                                                                                                                                            Argues that “within the Council of Europe, the creation of soft law instruments remains in many cases closely associated with treaties. In the case of recommendations of the Committee of Ministers, the nonbinding instruments are often precursors of legally binding agreements, testing the ground and helping to shape the consensus . . .” (p. 288).

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                                                                                                                                            • Schachter, Oscar. “United Nations Law.” American Journal of International Law 88 (1994): 1–23.

                                                                                                                                              DOI: 10.2307/2204020Save Citation »Export Citation »E-mail Citation »

                                                                                                                                              Provides an overview of United Nations Law in offering a reminder that, although the UN and its bodies were not conceived as legislative bodies, they “could act like legislatures by adopting lawmaking treaties and declarations of law. Their recommendations did not have to remain merely requests or wishes if the collective will of governments supported more authoritative outcomes” (p. 1). Available online for purchase or by subscription.

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                                                                                                                                              • Schermers, Henry, and Niels Blokker. International Institutional Law: Unity within Diversity. Leiden, The Netherlands: Martinus Nijhoff, 2011.

                                                                                                                                                DOI: 10.1163/ej.9789004187962.i-1273Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                A must-read reference work examining the soft law produced by international organizations and committees as a form of delegation, considering that “even non-binding recommendations contain supranational aspects. Membership of the organization encourages states to make at least some effort to comply with the organization’s wishes. Overt non-compliance will be resented” (p. 777).

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                                                                                                                                                The European Union

                                                                                                                                                In the European Union (EU) system, as stated in Mörth 2004 (cited under New Modes of Governance), soft law has become an important regulatory tool in new and traditional areas. Snyder 1994 contains the most-quoted definition of EU soft law as “rules of conduct which in principle have no legally binding force but which nevertheless may have practical effects,” to which can be added the excellent definitions in Senden 2004 and Beveridge and Nott 1998. However, this translation of soft law into EU law requires adaptation since, as Beveridge and Nott 1998 warns, “there must be serious questioning of whether the concept of soft law carries the same meaning when the term is transplanted into the [European Union]” (p. 289). The EU “has been developing a new regulatory policy, which increasingly puts emphasis on the use of alternative instruments or on instruments that are complementary to traditional command-and-control legislation,” as explained thoroughly in Senden 2004. However, the recommendations and opinions by the Council or the Commission that are considered as EU soft law lack legal status as they are clearly excluded by the treaties, a position set out in Peters 2011; Falkner, et al. 2005; Senden 2004; and Beveridge and Nott 1998. Instruments such as green papers, white papers, action programs, and informative communications are also considered as not constituting soft law. The European Parliament has stated that these instruments are being used as alternatives to legislation. In this sense, Peters 2011 notes that “the danger of circumventing the European Parliament by reliance on soft law also touches on the issue of the democratic justification or legitimacy of soft law” (p. 39). In this line, Trubek, et al. 2005 points out the negative aspects of soft law, since it can serve as a covert tactic to enlarge the EU’s legislative hard law competence and thus undermine the inter-institutional balance among the bodies as well as EU legitimacy. Soft law is also the core element of the “open method” of coordination, which has been adopted in a wide range of EU policy-making areas. It overrides the limits placed on the competences of coordination established by the Lisbon Treaty and is applied to the competences that are shared competences, coexisting or competing with the “community method” that is linked with the EU legal system hard law, as studied in Borrás and Jacobsson 2004 and Trubek, et al. 2005. Topics covered by soft law include, among others, social issues, taxation, state aid regime, immigration and asylum, the European Monetary Union’s fiscal framework, competition, and economic policy coordination, as studied in Hodson and Maher 2004.

                                                                                                                                                • Beveridge, Fiona, and Sue Nott. “A Hard Look at Soft Law.” In Lawmaking in the European Union. Edited by P. P. Craig and Carol Harlow, 285–309. Boston: Kluwer Law International, 1998.

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                                                                                                                                                  The authors argue that “there must be serious questioning of whether the concept of soft law carries the same meaning when the term is transplanted into the EC. The EC’s legal system and its law-creating processes are of a radically different character from those encountered in international law” (p. 289).

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                                                                                                                                                  • Borrás, Susana, and Kerstin Jacobsson. “The Open Method of Co-ordination and New Governance Patterns in the EU.” Journal of European Public Policy 11.2 (2004): 185–208.

                                                                                                                                                    DOI: 10.1080/1350176042000194395Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                    Well-argued article stating that the “open method” of cooperation “functions differently from the previous uses of soft law in the EU in, inter alia, being a political rather than a legal process, building on a different set of actors, and being an ongoing process entailing a refined system of monitoring and follow-up” (p. 197). Available online for purchase or by subscription.

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                                                                                                                                                    • Falkner, Gerda, Oliver Treib, Miriam Hartlapp, and Simone Leiber. Complying with Europe: EU Harmonisation and Soft Law in the Member States. Cambridge, UK: Cambridge University Press, 2005.

                                                                                                                                                      DOI: 10.1017/CBO9780511491931Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                      Useful collective work based on a research project on New Governance and Social Europe, focusing on the effects of “voluntaristic” and partly “soft” EU policies in the member states, especially the social ones. Denounces EU social policy, which they authors affirm, has witnessed a dramatic shift from binding regulation to nonbinding recommendations and “open coordination” (pp. 178–179).

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                                                                                                                                                      • Hodson, Dermot, and Imelda Maher. “Soft Law and Sanctions: Economic Policy Coordination and Reform of the Stability and Growth Pact.” Journal of European Public Policy 11.5 (2004): 798–813.

                                                                                                                                                        DOI: 10.1080/1350176042000273540Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                        Sustains the view that the predominance of soft law in the European Monetary Union’s fiscal framework is appropriate given the uncertainty of economic co-ordination. Although a flexible interpretation of the Pact gives states more room for fiscal maneuver, it also makes measuring its compliance and applying its mechanisms for imposing sanctions more difficult.

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                                                                                                                                                        • Peters, Anne. “Soft Law as New Mode of Governance.” In The Dynamics of Change in EU Governance. Edited by Udo Diedrichs, Wulf Reiners, and Wolfgang Wessels, 21–51. Cheltenham, UK: Edward Elgar, 2011.

                                                                                                                                                          DOI: 10.4337/9780857930316Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                          Considers “the most important European constitutional principles prima facie discourage an excessive use of soft law” (p. 39). Among these are the rule of law (including the protection of legitimate expectations, legal certainty), transparency, democracy, the institutional balance, the external division of powers, and the independence of the judiciary.

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                                                                                                                                                          • Senden, Linda. Soft Law in European Community Law. Oxford: Hart, 2004.

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                                                                                                                                                            Includes a much-quoted definition of European soft law as “rules of conduct that are laid down in instruments which have not been attributed legally binding force as such, but nevertheless may have certain (indirect) legal effects, and that are aimed at and may produce practical effects” (p. 456).

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                                                                                                                                                            • Snyder, Francis. “Soft Law and Institutional Practice in the European Community.” In The Construction of Europe: Essays in Honour of Émile Nöel. Edited by Stephen Martin, 197–225. Dordrecht, The Netherlands: Kluwer Academic, 1994.

                                                                                                                                                              DOI: 10.1007/978-94-015-8368-8Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                              Seminal work with the definition of soft law that is most often quoted: “rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effect” (p. 198). Considers the increased resort to soft law a “questionable attempt to circumvent or avoid the implications of failures to reach political agreement” (p. 200).

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                                                                                                                                                              • Trubek, David M., Patrick Cottrell, and Mark Nance. “Soft Law,” “Hard Law,” and European Integration: Toward a Theory of Hybridity. Jean Monnet Working Paper 02 (2005). New York: Jean Monnet Program, New York University School of Law, 2005.

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                                                                                                                                                                An important work that considers that soft law “is a very general term, and has been used to refer to a variety of processes,” and, in the case of the “open method” of coordination, points out how it “has spread into a wide range of EU policy-making areas” (p. 5).

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                                                                                                                                                                Domestic Law

                                                                                                                                                                International soft law may have an impact on domestic legal arrangements in that it can either acquire the status of hard law or carry out the same functions as hard law, namely to fill gaps, but also most especially to serve as a source to which legislators or judges can refer when enforcing national law with an international origin. Seidl-Hohenveldern 1980 considers that the transformation or adoption of soft law obligations into domestic law is required when soft law “[does] not only purport to influence the actions of States but also of private individuals, including national and transnational corporations” (p. 198). Kiss and Shelton 2007 considers that “national authorities also make use of non-binding or voluntary agreements with private parties, such as industrial associations, forest or other landowners, indigenous groups, or scientific institutions. These non-binding instruments can involve scientific research, land use, or reduction of pollution” (pp. 10–11). The contributors in Falkner, et al. 2005 conclude that “it depends on the preferences of domestic governments and/or social partners whether a specific recommendation is implemented as hard law, adopted in the form of a soft recommendation, or ignored completely” (p. 189). Soft law can also serve as a reference for municipal judges, who can take it into account when “evaluating the legality, with regard to international law, of any internal administrative action,” as Dupuy 1991 affirms (p. 435). Francioni 1996 considers that, in domestic jurisprudence and in the national legislation relevant to international law, “the existence of a body of soft law stimulates a mimetic process to the effect of reproducing the same prescription in an obligatory mode” (p. 167). Following this line, Sarmiento 2008 (p. 85) points out how, in the case of Spain, European soft law establishes the interpretation to be followed by states, domestic jurisdictions, and citizens, and as established by the European Union Court of Justice in the Grimaldi case (see Judicial Decisions). In the national constitutional order, soft law plays an interesting role since, for example, instruments of the relevant UN Declaration of Human Rights have been incorporated into many constitutions in serving as the source for legislation on human rights. Thus, Liñán 2005 analyzes its incorporation into the Spanish Constitution, an action that led not only to upgrading the status of the declaration, but also to turning it into a parameter for interpretation of the constitution’s human rights provisions. Soft law can be made accountable due to the processes and mechanisms adopted by domestic authorities that have led to its increasing formalization, as studied in Flückiger 2012.

                                                                                                                                                                • Dupuy, Pierre-Marie. “Soft Law and the International Law of the Environment.” Michigan Journal of International Law 12 (1991): 420–435.

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                                                                                                                                                                  Dupuy considers that soft law “may also effectively be taken into account by municipal judges in evaluating the legality, with regard to international law, of any internal administrative action . . . Furthermore, municipal judges may take these international standards into account in order to give a correct interpretation to very generally formulated international obligations” (p. 435).

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                                                                                                                                                                  • Falkner, Gerda, Oliver Treib, Miriam Hartlapp, and Simone Leiber. Complying with Europe: EU Harmonisation and Soft Law in the Member States. Cambridge, UK: Cambridge University Press, 2005.

                                                                                                                                                                    DOI: 10.1017/CBO9780511491931Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                    Concludes that “it depends on the preferences of domestic governments and/or social partners whether a specific recommendation is implemented as hard law, adopted in the form of a soft recommendation, or ignored completely. The country patterns also imply that cultural factors are at work when it comes to domestic reactions to EU soft law” (p. 189).

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                                                                                                                                                                    • Flückiger, Alexandre. “Keeping Domestic Soft Law Accountable: Towards a Gradual Formalization.” In Informal International Lawmaking. Edited by Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, 409–436. Oxford: Oxford University Press, 2012.

                                                                                                                                                                      DOI: 10.1093/acprof:oso/9780199658589.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                      Seeks to demonstrate that the lack of accountability of soft law at a national level has gradually led to its progressive formalization, so domestic law has introduced mechanisms to ensure legitimacy and control of nonbinding acts (see p. 409).

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                                                                                                                                                                      • Francioni, Francesco. “International ‘Soft Law’: A Contemporary Assessment.” In Fifty Years of the International Court of Justice: Essays in Honor of Sir Robert Jennings. Edited by Vaughan Lowe and Malgosia Fitzmaurice, 167–177. Cambridge, UK: Cambridge University Press, 1996.

                                                                                                                                                                        DOI: 10.1017/CBO9780511560101.012Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                        Considers that “both in domestic jurisprudence and in legislation or codification relevant to international law the existence of a body of soft law stimulates a mimetic process to the effect of reproducing the same prescription in an obligatory mode” (p. 167).

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                                                                                                                                                                        • Kiss, Alexandre, and Dinah Shelton. Guide to International Environmental Law. Leiden, The Netherlands: Martinus Nijhoff, 2007.

                                                                                                                                                                          DOI: 10.1163/ej.9781571053442.1-329Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                          Considers that “the interface of international and domestic (both national and local) environmental law is rapidly expanding,” and sometimes going further to explore informal processes with nonstate actors so “national authorities also make use of non-binding or voluntary agreements with private parties, such as industrial associations, forest or other landowners, indigenous groups, or scientific institutions” (pp. 10–11).

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                                                                                                                                                                          • Liñán Nogueras, D. J. “El proyecto constitucional europeo y la interpretación de derechos y libertades en la Constitución española: ¿Una nueva dimensión del art. 10. 2 CE?” In Pacis Artes: Obra homenaje al Profesor Julio D. González Campos. Vol. 1, Derecho internacional público y derecho comunitario y de la Unión Europea. Edited by Victoria Abellán Honrubia, 933–946. Madrid: Editer, 2005.

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                                                                                                                                                                            Analyzes the incorporation of the UN Declaration of Human Rights into the Spanish Constitution in not just upgrading the status of the declaration but turning it into a parameter for the interpretation of the constitution’s human rights provision. It analyzes how this provision has been reproduced in the constitutions of several new democracies.

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                                                                                                                                                                            • Sarmiento, Daniel. El soft law administrativo: Un estudio de los efectos jurídicos de las normas no vinculantes de la administración. Madrid: Thomson Civitas, 2008.

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                                                                                                                                                                              Considers soft law as an autonomous source of law with direct and indirect effects in domestic law. In the case of Spain, European soft law establishes the interpretation to be followed by states, domestic jurisdictions, and citizens, as established by the European Court of Justice in the Grimaldi case (see p. 85).

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                                                                                                                                                                              • Seidl-Hohenveldern, Ignaz. Recueil des Cours. Vol. 163 (1979–II), International Economic “Soft Law.” The Hague: Martinus Nijhoff, 1980.

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                                                                                                                                                                                A reference work that considers that the transformation or adoption of soft law obligations into domestic law is required when soft law “[does] not only purport to influence the actions of States but also of private individuals, including national and transnational corporations” (p. 198), even though in this case the state “might also use soft enforcement measures” (p. 199).

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                                                                                                                                                                                The Role of Soft Law in Dispute Resolution

                                                                                                                                                                                Seidl-Hohenveldern 1980 considers that the only role that soft law cannot play is to solve international conflicts between states “if either not all the States parties to the conflict had accepted them” (p. 225). In turn, Alain Pellet points out that soft law considered as a “quasi-source” “ha[s] not been of much use to the Court in its function of settling disputes, nor even in its advisory function. . . . However, contrary to the views of positivist doctrine, it appears from a careful study of the case law of the Court that they are not ‘non-legal.’ They are taken into consideration by the Court not only in the framework of the crystallization process of customary rules or for the interpretation of treaty law” (Pellet 2012, p. 773). Pellet concludes that “if necessary, they can also have a more direct and autonomous role in the search for legal answers to legal questions. In this respect they certainly are part of international law that the Court is bound to apply” (pp. 773–774). Czaplinski 1989 and Tasioulas 1996 affirm this fact. Some scholars have suggested that the scholars who sit on the International Court of Justice (ICJ) and the publicists for the court are inclined to follow the premises of the canonical basis of the international law system. So, Dupuy 2007 (cited under Customary Law) points out that “a decision of an international court or tribunal depends very much on the personal beliefs, culture, and even generation of international judges” (p. 460). In the Gabčikovo Nagymaros case (cited under Judicial Decisions), its “contribution remained limited because of its fear of being accused of creating law rather than of applying it” (p. 460). On the other hand, as pointed out by Chinkin 1989 (cited under General Overviews): “while the soft law form may be regarded as unsuited to adjudication, it may be significant that the International Court of Justice has furthered the development of soft law principles” (p. 864). Boyle and Freestone 1999 considers that soft international principles are not legally irrelevant when courts or international bodies have to apply or develop the law but may represent a goal that can influence the outcome of litigation (p. 17). In this sense, and most provocatively, Guzman and Meyer 2008–2009 considers that “the grant of jurisdiction to a tribunal acts as a delegation of power to craft soft legal norms interpreting an underlying binding legal obligation” (p. 517). In the case of EU soft law, Snyder 1994 and Peters 2011 share these positions.

                                                                                                                                                                                • Boyle, Alain E., and David Freestone, eds. International Law and Sustainable Development: Past Achievements and Future Challenges. New York: Oxford University Press, 1999.

                                                                                                                                                                                  DOI: 10.1093/acprof:oso/9780198298076.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                  Boyle and Freestone in the introduction as well as Lowe in chapter 2 consider that soft international principles are not legally irrelevant when courts or international bodies have to apply or develop the law but may represent a goal that can influence the outcome of litigation (p. 17).

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                                                                                                                                                                                  • Czaplinski, Wladyslaw. “Sources of Law in the Nicaragua Case.” International and Comparative Law Quarterly 38 (1989): 151–166.

                                                                                                                                                                                    DOI: 10.1093/iclqaj/38.1.151Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                    Points out that the ICJ, “stated that the Friendly Relations Declaration not only confirms the provisions of the Charter, but also constitutes evidence of acceptance of the existence of the rule or the set of rules declared by the resolution itself” to support the existence of opinio iuris of the United States (p. 160). Available online for purchase or by subscription.

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                                                                                                                                                                                    • Guzman, A. T., and T. L. Meyer. “International Common Law: The Soft Law of International Tribunals.” Chicago Journal of International Law 9 (2008–2009): 515–535.

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                                                                                                                                                                                      In this provocative article, argues that “channeling legal disputes to international tribunals necessarily implicates the use of soft law” (p. 516), characterizing the decisions of tribunals as constituting as soft law, which expands the influence of the tribunals beyond the parties that have submitted to the tribunal’s jurisdiction and creates a form of nonbinding international common law.

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                                                                                                                                                                                      • Pellet, Alain. “Commentary on Art. 38.” In The Statute of the International Court of Justice: A Commentary. 2d ed. Edited by Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-Frahm, 731–870. Oxford: Oxford University Press, 2012.

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                                                                                                                                                                                        A must-read reference analyzing thoroughly the case law regarding “quasi sources,” concluding that “they are not ‘non-legal’” and they can “have a more direct and autonomous role in the search for legal answers to legal questions.” They “certainly are part of international law that the Court is bound to apply” (pp. 773–774).

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                                                                                                                                                                                        • Peters, Anne. “Soft Law as a New Mode of Governance.” In The Dynamics of Change in EU Governance. Edited by Udo Diedrichs, Wulf Reiners, and Wolfgang Wessels, 21–31. Cheltenham, UK: Edward Elgar, 2011.

                                                                                                                                                                                          DOI: 10.4337/9780857930316Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                          Points out that soft law texts may, in the words of international courts and tribunals and even if they are not binding, sometimes have normative value, as has been established by the Court of Justice of the European Union (ECJ).

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                                                                                                                                                                                          • Seidl-Hohenveldern, Ignaz. Recueil des Cours. Vol. 163 (1979–II), International Economic “Soft Law.” The Hague: Martinus Nijhoff, 1980.

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                                                                                                                                                                                            A valuable work on soft law and international economic law in which the authors considers that the only role that it cannot play is to solve international conflicts between states “if either not all the States parties to the conflict had accepted them or if the States interpret the content of such rules in a different manner” (p. 225).

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                                                                                                                                                                                            • Snyder, Francis. “Soft Law and Institutional Practice in the European Community.” In The Construction of Europe: Essays in Honour of Émile Nöel. Edited by Stephen Martin, 197–225. Dordrecht, The Netherlands: Kluwer Academic, 1994.

                                                                                                                                                                                              DOI: 10.1007/978-94-015-8368-8Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                              Points out “how soft law may form part of the implicit context of judicial decisions, how judicial language can be elaborated and generalized in the form of soft law, and how soft law, based partly on a court judgment, is transformed into hard law by administrative decision” (p. 216).

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                                                                                                                                                                                              • Tasioulas, John. “In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case.” Oxford Journal of Legal Studies 16 (1996): 85–128.

                                                                                                                                                                                                DOI: 10.1093/ojls/16.1.85Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                Carries on a dialectical debate with Weil’s discourse in the latter’s article on Relative Normativity; considers that the Nicaragua majority’s approach to customary international law, constitutes the “Court’s most thoroughgoing endorsement of relative normativity” (p. 127), which also exemplifies the potential of just such an inspirational role for the International Court of Justice. Available online for purchase or by subscription.

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                                                                                                                                                                                                Judicial Decisions

                                                                                                                                                                                                In the case law of the International Court of Justice, an evolution can be observed from an absolute disregard for the new notions of soft law in the form of United Nations resolutions and declarations to a certain sensitivity to those soft law instruments that cannot be denied legal effect. Judge Hersch Lauterpacht stated in his separate opinion appended to the court’s 1955 Advisory Opinion on South-West Africa: “It is one thing to affirm the somewhat obvious principle that the recommendations of the General Assembly . . . addressed to the Members of the United Nations are not legally binding upon them in the sense that full effect must be given to them. It is another thing to give currency to the view that they have no force at all whether legal or other (p. 118). Pellet 2012 (cited under the Sources of International Law) points out that we can find echoes of positivism in the case law of the ICJ in upholding the rigid distinction between lex lata and lex ferenda, as in the Icelandic Fisheries Jurisdiction (International Court of Justice 1972), but its jurisprudence has evolved in recognizing the role of the resolutions of international organizations, in particular, in the Continental Shelf case (International Court of Justice 1982). Tasioulas 1996 (cited under the Role of Soft Law in Dispute Resolution) considers that, in Nicaragua v. United States of America (International Court of Justice 1986), the majority’s approach to customary international law constitutes the “Court’s most thoroughgoing endorsement of relative normativity” (p. 127), also exemplifying the potential of just such an inspirational role for the ICJ. In the same sense, so does Czaplinski 1989 (cited under the Role of Soft Law in Dispute Resolution). Other courts have also considered soft law instruments. For instance, the Inter-American Court of Human Rights in an advisory opinion, Juridical Condition and Rights of the Undocumented Migrants (Inter-American Court of Human Rights 2003), has used these laws in considering that, taken together, they evidence a universal obligation to respect and guarantee human rights without discrimination. The Court of Justice of the European Union has also attributed legal effects to soft law, including in Deufil GmbH and Co KG v. Commission of the European Communities and Salvatore Grimaldi v. Fonds des Maladies Professionnelles.

                                                                                                                                                                                                Nongovernmental Actors

                                                                                                                                                                                                The modern international legal system is characterized by a multiplicity of actors, including not only states and international organizations, but also nongovernmental organizations (NGOs) and multinational enterprises, all of which play different roles in the process of making international norms and promoting compliance with them. Thus, as pointed out by Kiss and Shelton 2007 (cited under International Environmental Law), now “purely inter-state development of norms is probably non-existent in most fields of International Law” (p. 9). Some scholars have been seeking answers to the requests made by nonstate actors to play a role in the creation of legal regimes, including in works such as Cornago Prieto 2010, Hobe 2005, Muchlinski 1997, and Roberts and Sivakumaran 2012. Kiss and Shelton 2007 suggests that “new problems also may require innovative means of rulemaking when non-state actors are the source of the harm and target of the regulations; they generally cannot negotiate or be parties to treaties, and they are not involved in the creation of customary international law, but they have a direct interest in any legal regulation adopted. Their participation may thus be crucial to effectiveness of the law. The emergence of codes of conduct and other ‘soft law’ in part reflects the desire to bring them into the law-making process” (p. 9). This view is shared by Chinkin 1989 (cited under General Overviews), but Chinkin argues that the activities of individuals and corporations are crucial to the creation of expectations; however, she affirms that “the behavior of these entities cannot constitute State practice” (p. 858). Thus, Ellis 2012 finds Fuller, Kingsbury, and Teubner’s autopoietic theory of global law outside the state most promising as a basis on which to incorporate nonstate actors as norm generators. Klabbers 2001 criticizes the softening of international law and organizations, concluding “that ironically, too much ‘softness’ has already resulted in calls for a ‘hardening’ of those ‘soft’ creatures” (p. 403). Multinational enterprises and nongovernmental organizations, even though lacking treaty-making powers, participate in making international law and also claim a power of self-regulation. In opposition to these possibilities, Gruchalla-Wesierski 1984–1985 (cited under Concept and Definitions) affirms: “Only states have the capability to internationalize a subject matter. Persons cannot do so. For this reason it may be said that international formulations of standards by non-governmental organizations . . . are not soft law. They do not show the desire of states for collective action” (p. 60). Peters, et al. 2009 considers that NGOs, once they have been admitted to international institutions, enjoy a legitimate expectation that their participation will entail two core components: oral interventions and written submissions. So “in the current international legal system, the NGO’s voice is thus the functional equivalent to the formal law-making power which other actors (the international legal subjects) posses” (p. 494).

                                                                                                                                                                                                • Chinkin, Christine M. “The Challenge of Soft Law: Development and Change in International Law.” International and Comparative Law Quarterly 38.4 (1989): 850–866.

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                                                                                                                                                                                                  Deals with “the activities of individuals and corporations that are crucial to the creation of expectations as to the observance of the regulating instruments. However, the behavior of these entities cannot constitute State practice” (p. 858). Available online for purchase or by subscription.

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                                                                                                                                                                                                  • Cornago Prieto, Noé. “On the Normalization of Sub-state Diplomacy.” The Hague Journal of Diplomacy 5.1–2 (2010): 11–36.

                                                                                                                                                                                                    DOI: 10.1163/187119110790930869Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                    As in his previous works, the author seeks the political and the legal aspects of the diplomacy of substate entities, identifying as possible outcomes/ manifestations “the extension of international agreements through diverse soft-law mechanisms, limited participation in international treaty-making processes (. . .), intensive participation in multilateral negotiation schemes on a geographical or functional basis” (p. 17). Available online for purchase or by subscription.

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                                                                                                                                                                                                    • Ellis, Jaelle D. “The King Is Dead, Long Live the King? A Reply to Matthias Goldmann.” Leiden Journal of International Law 25.2 (2012): 369–372.

                                                                                                                                                                                                      DOI: 10.1017/S0922156512000076Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                      Examines how to redefine the rules of recognition to include new law-making practices in considering new roles for nonstate actors in the creation of legal regimes. With Fuller, Kingsbury, and Teubner, Ellis finds their autopoietic theory of global law outside the state as the most promising basis on which to incorporate nonstate actors as norm generators. Available online for purchase or by subscription.

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                                                                                                                                                                                                      • Hobe, Stephan. “The Role of Non-state Actors, in Particular of NGOs, in Non-contractual Law-Making and the Development of Customary International Law.” In Developments of International Law in Treaty Making. Edited by Rüdiger Wolfrum and Volker Röben, 319–330. New York: Springer, 2005.

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                                                                                                                                                                                                        Argues that “with regard to the state-centred system of sources as laid down in Art. 38 of the ICJ-Statute it seems, therefore, to be most appropriate to characterize the numerous relevant norm-generating activities of non-state actors as a contribution to an international opinio iuris” (p. 328).

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                                                                                                                                                                                                        • Klabbers, Jan. “Institutional Ambivalence by Design: Soft Organizations in International Law.” Nordic International Law Journal 70 (2001): 403–421.

                                                                                                                                                                                                          DOI: 10.1163/15718100120296647Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                          Treats organizations including the Organization for Security and Co-operation in Europe, the World Trade Organization, and the International Organization for Standardization in a brilliant critique of the emergence of soft law in such organizations; associates “the intentional creation of soft organizations to more general discussions on regulation and deregulation,” concluding “that ironically, too much “softness’ has already resulted in calls for a “hardening” of those “soft” creatures” (p. 403). Available online for purchase or by subscription.

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                                                                                                                                                                                                          • Muchlinski, Peter T. “‘Global Bukowina’ Examined: Viewing the Multinational Enterprise as a Transnational Law-Making Community.” In Global Law without a State. Edited by Gunther Teubner, 79–108. Aldershot, UK: Dartmouth, 1997.

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                                                                                                                                                                                                            Refers to how the shelved UN draft code of conduct on transnational corporations “never acquired the status even of ‘soft law,’ [is] in itself, part of the story of home state lobbying before the UN to have the Draft Code abandoned” (p. 91).

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                                                                                                                                                                                                            • Peters, Anne, Till Förster, and Lucy Koechlin. “Towards Non-state Actors as Effective, Legitimate, and Accountable Standard Setters.” In Non-state Actors as Standard Setters. Edited by Anne Peters, Till Förster, and Lucy Koechlin, 492–562. Cambridge, UK: Cambridge University Press, 2009.

                                                                                                                                                                                                              DOI: 10.1017/CBO9780511635519.019Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                              All the contributors agree that nonstate standard settings lead to questions concerning the boundaries used in legal, sociological, and political analysis. They consider that “despite the multiple NGO activities, . . . [e]ven in those areas where NGOs have had greatest impact, states control the agenda and the access to the law-making arenas” (p. 494).

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                                                                                                                                                                                                              • Roberts, Anthea, and Sandesh Sivakumaran. “Law-Making by Non-state Actors: Engaging Armed Groups in the Creation of International Humanitarian Law.” Yale Law Journal of International Law 37 (2012): 107–152.

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                                                                                                                                                                                                                Provocative study on the role of armed groups in law creation, suggesting mechanisms (unilateral declarations, hybrid treaties, and possibly quasi custom) for giving them opportunities to recognize existing obligations or undertake new ones, but stating that “this terminology is not intended to suggest that these instruments are quasi-binding or akin to soft law” (p. 144).

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                                                                                                                                                                                                                Areas of Soft Law

                                                                                                                                                                                                                Many areas covered by soft law were previously regarded as falling within national jurisdictions and that states sought to address through collective action, as Chinkin 1989 (cited under General Overviews) and Gruchalla-Wesierski 1984–1985 (cited under Concept and Definitions) have argued. However, Danilenko 1993 notes: “it is clear that endorsement of ‘soft law’ results in an unprecedented expansion of the concept of law into areas of normative regulation which have never been considered as to the law proper” (p. 20). For these reasons, states will avoid legal obligations and they will retain discretion over the interpretation of the obligations they undertake when adapting them to their national interest. Shelton 2000 considers that “Subject matter has an impact on the choice of binding or non-binding norms, although less, perhaps, than expected” (p. 555). Many scholarly studies concentrate on a single field or a single instrument because of its suitability as a soft law example or because, as Hilary Charlesworth points out, the specialized fields of international law differ in “the priority that they accord to different sources and the approaches they take to them” (Charlesworth 2012, p. 189). Shelton 2000 is a volume in which the contributors highlight the extent to which soft law is present throughout international law, the high degree of which leads to a diminution of the obligations of that law.

                                                                                                                                                                                                                • Charlesworth, Hilary. “Law-Making and Sources.” In The Cambridge Companion to International Law. Edited by James Crawford and Martti Koskenniemi, 187–202. Cambridge, UK: Cambridge University Press, 2012.

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                                                                                                                                                                                                                  Clearly points out that “specialized fields of international law, such as trade law, human rights law, the law of armed conflict or environmental law, also differ in the priority that they accord to different sources and the approaches they take to them” (p. 189).

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                                                                                                                                                                                                                  • Chinkin, Christine M. “The Challenge of Soft Law: Development and Change in International Law.” International and Comparative Law Quarterly 38.4 (1989): 850–866.

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                                                                                                                                                                                                                    A concise article that points out that many of the new areas of international law covered by soft law, referring to international economic law, were previously regarded as falling within domestic jurisdiction and that “the outcome has been to limit the domestic jurisdiction exception and consequently the notion of economic self-determination” (p. 854). Available online for purchase or by subscription.

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                                                                                                                                                                                                                    • Danilenko, Gennady M. Law-Making in the International Community. Leiden, The Netherlands: Martinus Nijhoff, 1993.

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                                                                                                                                                                                                                      Danilenko notes: “It is clear that endorsement of ‘soft law’ results in an unprecedented expansion of the concept of law into areas of normative regulation which have never been considered as to the law proper. At best the relevant regulations had only been qualified as a stage in the process of law-creation” (p. 20).

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                                                                                                                                                                                                                      • Shelton, Dinah. “Introduction: Law, Non-law and the Problem of Soft Law.” In Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Edited by Dinah Shelton, 1–18. Oxford: Oxford University Press, 2000.

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                                                                                                                                                                                                                        A must-read introduction and conclusions to a collective study that considers that the “subject matter of international concern similarly has expanded, paralleling developments within states . . .” (p. 6). See also the editor’s concluding note, “The Role of Non-binding Norms in the International Legal System,” in which Sheldon notes that soft law “has an impact on the choice of binding or non-binding norms, although less, perhaps, than expected” (p. 555).

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                                                                                                                                                                                                                        International Economic Law

                                                                                                                                                                                                                        Schwarzenberger 1966 offers a guide to navigate through the topic of soft international economic law in reminding us that international economic law relies on its substantive reciprocity, which determines that “international law can be developed unostentatiously and effectively on constructive lines” (p. 6). Therefore, soft law offers room for maneuver and flexibility at the same time as it favors enforcement and compliance, even as it deals with the same problems as hard law. Many scholars approach international economic soft law in stating that what is important is not to determine whether soft law is “law” but to ascertain whether it plays a definable role in international economic relations. Thus, Gruchalla-Wesierski 1984–1985 affirms that it does: “Economic soft law addresses matters that cannot be confined to the territory of any one state. It attempts to outline when states should act independently and when they should cooperate to deal with these matters” (p. 45). Christine Chinkin argues that the “expansion of subject matter to encompass an overall development of a New International Economic Order is one reason for the many contradictions in the area” as well as the “many different international and regional arenas with the development of international economic law upon their agenda. The different participants in the negotiation and formulation processes of such instruments and their diverse backgrounds and goals make uniformity improbable” (Chinkin 1989, pp. 854–855). Furthermore, soft law can serve as an instrument to enable developing countries to change the economic order, as Seidl-Hohenveldern 1980 affirms. Alain Pellet points out one of the reasons for its relevance: “in contemporary international economic relations, it is also related to the rebalancing of economic power relations in the world” (Pellet 1992, p. 331). In the case of commercial law, Gabriel 2008 points out that soft law instruments serve two important functions not satisfied by treaties: They can achieve the goal of uniform or, at least, harmonized laws by providing general principles and, because of their nonbinding effect, they can accommodate local law. Teubner 1997 considers that lex mercatoria is mostly soft law, but not weak law. This is not a deficiency but a typical characteristic of global law. Teubner notes: “It compensates for the lack of global enforceability; making it more flexible and adaptive to changing circumstances; . . . Stability comes from softness” (p. 21). In the section International Financial Regulation, more specific attention is paid to soft law and its role in international finance, a field in which soft law plays a major role, such as with respect to trade and investment, as studied in Bjorklund and Reinisch 2012.

                                                                                                                                                                                                                        • Bjorklund, Andrea K., and August Reinisch, eds. International Investment Law and Soft Law. Cheltenham, UK: Edward Elgar, 2012.

                                                                                                                                                                                                                          DOI: 10.4337/9781781003220Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                          In this collective work, scholars and practitioners examine the development of soft law instruments in international investment law and the feasibility of a “codification” of this sector of international economic law.

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                                                                                                                                                                                                                          • Chinkin, Christine M. “The Challenge of Soft Law: Development and Change in International Law.” International and Comparative Law Quarterly 38.4 (1989): 850–866.

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                                                                                                                                                                                                                            An important article that, after providing an analysis of the challenges that soft law raises, assesses the international economic law with respect to soft law, in particular the instruments that conform to the New International Economic Order. Available online for purchase or by subscription.

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                                                                                                                                                                                                                            • Gabriel, H. D. “The Advantages of Soft Law in International Commercial Law: The Role of UNIDROIT, UNCITRAL and the Hague Conference.” Brooklyn Journal of International Law 34 (2008): 654–672.

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                                                                                                                                                                                                                              Argues that the growing presence of soft law instruments in this field serve two important functions not met by treaties or conventions: They can achieve the goal of uniform or, at least, harmonized laws by providing general principles and, because of their nonbinding effect, they can accommodate local law (pp. 654–655) Available online for purchase or by subscription.

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                                                                                                                                                                                                                              • Gruchalla-Wesierski, Tadeusz. “A Framework for Understanding ‘Soft Law.’McGill Law Journal 30.1 (1984–1985): 37–88.

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                                                                                                                                                                                                                                Thought-provoking study developing a framework for examining economic soft law as well soft law as it pertains to other subjects. The focus is on economic relations, “which is an area where numerous forces impel states to seek collective action, even though they do not wish to subject themselves to enforceable legal obligations” (p. 43).

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                                                                                                                                                                                                                                • Pellet, Alain. “Contre la tyrannie de la ligne droite: Aspects de la formation des normes en droit international de l’économie et du developpement.” Thesaurus Acroasium 19 (1992): 291–356.

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                                                                                                                                                                                                                                  An important study on soft law and its role in international economic law and the law as regards international development, pointing out that one of the reasons for its relevance is that “in contemporary international economic relations, it is also related to the rebalancing of economic power relations in the world” (p. 331).

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                                                                                                                                                                                                                                  • Schwarzenberger, Georg. The Principles and Standards of International Economic Law. Leiden, The Netherlands: A. W. Sijthoff, 1966.

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                                                                                                                                                                                                                                    Even though not dealing directly with the notion of soft law, this work provides important insights in understanding the self-evident important feature of international economic law: its substantive reciprocity, which determines that “international law can be developed unostentatiously and effectively on constructive lines” (p. 6).

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                                                                                                                                                                                                                                    • Seidl-Hohenveldern, Ignaz. Recueil des Cours. Vol. 163 (1979–II), International Economic “Soft Law.” The Hague: Martinus Nijhoff, 1980.

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                                                                                                                                                                                                                                      A reference work examining the political and economic rationale for soft law, namely, developing countries require new rules for international economic relations. The author criticizes soft law shortcomings since such law cannot help to resolve conflicts between developed and developing nations, disputes that can be settled only by adoption of uniform rules applied worldwide.

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                                                                                                                                                                                                                                      • Teubner, Gunther. “‘Global Bukowina’: Legal Pluralism in the World Society.” In Global Law without a State. Edited by Gunther Teubner, 3–28. Aldershot, UK: Dartmouth, 1997.

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                                                                                                                                                                                                                                        Considers that lex mercatoria, the transnational law of economic transactions, is mostly soft law, but not weak law. This is not a deficiency, but a typical characteristic of global law. “It compensates for the lack of global enforceability; making it more flexible and adaptive to changing circumstances; . . . Stability comes from softness” (p. 21).

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                                                                                                                                                                                                                                        International Financial Regulation

                                                                                                                                                                                                                                        Brummer 2012 notes: “International financial law comprises what is in many ways a unique form of economic governance” because “unlike international trade and monetary affairs, when international laws are made by formal international organizations, regulatory coordination arises through interagency forums with at best, ambiguous legal status” (pp. 116–117). Brummer argues that “dominant explanations for soft law’s prevalence as a coordinating mechanism for financial regulators have borrowed from two broader theories about the use of soft law: ‘contractarian’ analyses, which characterize soft law as a risk-mitigation device, and ‘soft power’ theories, which interpret soft law as an essential facilitator of ongoing, productive coordination and cooperation” (p. 116). In any case, in this field, as Gold 1983 affirms, soft law is “an expectation that the states accepting these instruments will take their content seriously and will give them some measure of respect” (p. 443). Arner and Taylor 2009 considers that the current framework of international financial regulation is based primarily on soft law international standards and organizations and, despite its shortcomings, that framework serves to improve coordinating the supervision of cross-border financial institutions, including enhanced cooperation on enforcement actions (p. 4). Levit 2005 highlights how soft law serves to incorporate transnational legal process, transgovernmental networks, and private lawmaking in the international legal taxonomy. The Basel Accords on Capital Adequacy are a good example of the prevalence of soft law in financial regulation. Implementation of the accords is analyzed in Verdier 2012.

                                                                                                                                                                                                                                        • Arner, Douglas W., and Michael Taylor. The Global Financial Crisis and the Financial Stability Board: Hardening the Soft Law of International Financial Regulation? AIIFL Working Paper 6 (2009). Hong Kong: University of Hong Kong, 2009.

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                                                                                                                                                                                                                                          Examines the Financial Stability Board (FSB) and its “soft law” regime as a substitute for “hard law.” Concludes that, even if greater institutional backing for the FSB were achievable without a hard law solution, it is unlikely the board will be able to deliver improvements to the crisis management arrangements.

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                                                                                                                                                                                                                                          • Brummer, Chris. Soft Law and the Global Financial System: Rule Making in the 21st Century. Cambridge, UK: Cambridge University Press, 2012.

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                                                                                                                                                                                                                                            Elegantly written analysis of the international financial system after the global crisis, answering why soft law dominates this system and arguing that international financial regulation “is bolstered by various disciplining mechanisms that render it, under certain circumstances, more coercive than traditional theories of international law predict” (p. 116).

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                                                                                                                                                                                                                                            • Gold, Joseph. “Strengthening the Soft International Law of Exchange Arrangements.” American Journal of International Law 77 (1983): 443–489.

                                                                                                                                                                                                                                              DOI: 10.2307/2201074Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                              Characterizes soft law as “an expectation that the states accepting these instruments will take their content seriously and will give them some measure of respect” and that is not deprived of its quality as law because failure to observe it is not in itself a breach of obligation (p. 443). Available online for purchase or by subscription.

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                                                                                                                                                                                                                                              • Levit, Janet K. “A Bottom-Up Approach to International Law-Making: The Tale of Three Trade Finance Instruments.” Yale Journal of International Law 30 (2005): 125–209.

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                                                                                                                                                                                                                                                Adopting a so-called bottom-up approach to international lawmaking, Levit examines the challenges to the prevailing international legal frameworks in order to incorporate transnational legal process, transgovernmental networks, and private lawmaking in an effort to locate soft law in the international legal taxonomy.

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                                                                                                                                                                                                                                                • Verdier, Pierre-Hugues. “US Implementation of Basel II: Lessons for Informal International Lawmaking.” In Informal International Lawmaking. Edited by Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, 437–467. Oxford: Oxford University Press, 2012.

                                                                                                                                                                                                                                                  DOI: 10.1093/acprof:oso/9780199658589.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                  Thorough and clear analysis of the background to the Basel Accords, focusing on the problems of transposition and implementation by the national authorities, drawing lessons for the debate on accountability of informal international lawmaking.

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                                                                                                                                                                                                                                                  Human Rights

                                                                                                                                                                                                                                                  Shelton 2000 considers that “in the field of human rights, soft law usually preceded hard law in the past, helping to build consensus on the norms. Thus, the Universal Declaration of Human Rights led to the two Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights” (p. 555). But it also considers that “the situation has changed now that the ‘easy’ topics on which there was widespread consensus have been completed and there are fewer treaties being concluded on the global level. Instead, the United Nations increasingly adopts declarations without subsequent treaties. At the same time, regional institutions continue to formulate legal obligations, with concomitant efforts to secure compliance, perhaps because it is easier to achieve consensus in the shared culture of regional systems and also to agree upon stronger institutions; human rights courts exist only on the regional level. Regional adoption of soft norms also has an important role” (p. 555). The Panel of the American Society of International Law on “Hardening Soft Law: Implementation of the Guiding Principles on Internal Displacement” (Beyani 2008) examines the case of soft law inspired by hard law to develop by analogy a new regime to apply to displaced persons following the hard law regime for refugees. Panelists address different problematic issues, pointing out that what was controversial about the principles was not their content but the process by which they were developed by individual experts outside the intergovernmental process. As Boyle and Chinkin 2007 considers, in the case of the UN General Comments on Human Rights Conventions, these comments “might be understood as a form of delegated soft law since they supplement the limited jurisprudence under UN human rights treaties and contribute to their status as ‘living instruments’” (p. 217). In the field of labor standards, Blanpain and Colucci 2004 explores the feasibility of advancing human rights by means of the most relevant soft law instruments. Shelton 1997 also studies compliance with soft law based on experience in the field of human rights.

                                                                                                                                                                                                                                                  • Beyani, Chaloka. “The Politics of International Law: Transformation of the Guiding Principles on International Displacement from Soft Law to Hard Law.” American Society of International Law Proceedings 102 (2008): 187–201.

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                                                                                                                                                                                                                                                    Assesses how “these Guidelines represent the use of soft law as a means of constructing a coherent framework of reference in which disparate aspects of hard international law deriving from IHL, human rights, and refugee law by analogy are brought to bear on protection of internally displaced persons in international law” (p. 194).

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                                                                                                                                                                                                                                                    • Blanpain, Roger, and Michele Colucci. The Globalization of Labour Standands: The Soft Law Track. The Hague: Kluwer Law International, 2004.

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                                                                                                                                                                                                                                                      This book does not reflect on the concept of soft law but examines the main instruments of soft law with respect to labor standards and their impact on multinational enterprises. Distinguishes four tracks or ways of advancing fundamental rights—namely legal, voluntary, promotional, and commercial—and the links among them.

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                                                                                                                                                                                                                                                      • Boyle, Alan E., and Christine Chinkin. The Making of International Law. Oxford: Oxford University Press, 2007.

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                                                                                                                                                                                                                                                        This reference work considers that the UN General Comments on Human Rights Conventions might be understood as a form of “delegated soft law since they supplement the limited jurisprudence under UN human rights treaties and contribute to their status as ‘living instruments’” (p. 217).

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                                                                                                                                                                                                                                                        • Shelton, Dinah. “Compliance with International Human Rights Soft Law.” Studies of Transnational Legal Policy 29 (1997): 119–143.

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                                                                                                                                                                                                                                                          Poses questions about soft law, methodology, and what is known and not known concerning compliance with human rights soft law. Assesses the role of soft law as the ultimate or intermediate expression of international consensus of human rights norms, studying the main instruments at the international and regional levels.

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                                                                                                                                                                                                                                                          International Environmental Law

                                                                                                                                                                                                                                                          As De Sadeleer 2002 comments, “abounding in declarations, resolutions, and guidelines, international environmental law is a favored discipline for the use of soft-law instruments” (p. 312). Soft law reflects, according to Kiss and Shelton 2007, “the will of the international community to resolve a pressing global problem over the objections of one or a few states causing the problem, while avoiding the doctrinal barrier of their lack of consent to be bound by the norm” (p. 9). Thus, Shelton points out “in the environmental field, statements of principles coming from global conferences have stimulated the conclusion of both legally binding and non-binding instruments, with peaks of regulation following the Stockholm and the Rio Conferences . . .” (p. 555). Soft law serves as a “trendsetter for the expanding content of international law” as Drumbl 2010 affirms (p. 3), and is in the inception of hard law, despite the difficulties arising when moving from soft law to the binding principles of international law via customary international law or via treaty-making processes, as studied in Birnie, et al. 2009; Bodansky, et al. 2007; and Dupuy 1991. The case of the Rio Declaration is a clear example of an instrument “overtly intended to initiate new law for the international community of States,” as Boyle and Freestone 1999 points out, and “for this reason many of its provisions are formulated in normative and obligatory terms, although the declaration is formally non-binding. It marks the emergence of developing countries as a real and substantial influence on the making of international environmental law . . .” (p. 69). Juste Ruiz 2011, emphasizes, among the sociological, political, and legal reasons for the emergence of soft law, the law-making ability of international organizations, the divergent interests of developed and developing countries, and the evolution of science. Soft law also serves to update hard law and fill in gaps in that law because as Boyle and Chinkin 2007 (cited under International Law-Making Process) notes, environmental soft law sets “detailed rules or more general standards of best practice or due diligence to be achieved by the parties in implementing their obligations. These ‘eco-standards’ are essential in giving hard content to the open-textured terms of framework environmental treaties” (p. 218). Also see General Overviews.

                                                                                                                                                                                                                                                          • Birnie, Patricia, Alan Boyle, and Catherine Redgwell. International Law and the Environment. 3d ed. New York: Oxford University Press, 2009.

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                                                                                                                                                                                                                                                            New edition of a seminal reference work on international environmental law that analyzes the concepts of hard law and soft law and the difficulties arising when moving from soft law to the binding principles of international law via customary international law.

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                                                                                                                                                                                                                                                            • Bodansky, Daniel, Jutta Brunnée, and Ellen Hey, eds. The Oxford Handbook of International Environmental Law. New York: Oxford University Press, 2007.

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                                                                                                                                                                                                                                                              Soft law as a main feature of international environmental law is studied by various authors in different chapters: Toope in addressing formality and informality; Beyerlin inexamining the different types of norms in international environmental law, including policies, principles, and rules; Dupuy in exploring the relationship between soft law and customs.

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                                                                                                                                                                                                                                                              • Boyle, Alan E., and David Freestone, eds. International Law and Sustainable Development: Past Achievements and Future Challenges. New York: Oxford University Press, 1999.

                                                                                                                                                                                                                                                                DOI: 10.1093/acprof:oso/9780198298076.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                Considers that the “Rio Declaration is overtly intended to initiate new law for the international community of States; for this reason many of its provisions are formulated in normative and obligatory terms, although the declaration is formally non-binding. It marks the emergence of developing countries as a real and substantial influence on the making of international environmental law . . .” (p. 69).

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                                                                                                                                                                                                                                                                • De Sadeleer, Nicolas. Environmental Principles: From Political Slogans to Legal Rules. Oxford: Oxford University Press, 2002.

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                                                                                                                                                                                                                                                                  The author provides valuable reflections on the status of environmental principles when they are set out in soft law texts and points out, “abounding in declarations, resolutions, and guidelines, international environmental law is a favored discipline for the use of soft-law instruments” (p. 312).

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                                                                                                                                                                                                                                                                  • Drumbl, M. A. “Actors and Law-Making in International Environmental Law.” In Research Handbook of International Environmental Law. Edited by Malgosia Fitzmaurice, David M. Ong, and Panos Mercuris, 3–25. Cheltenham, UK: Edward Elgar, 2010.

                                                                                                                                                                                                                                                                    DOI: 10.4337/9781849807265Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                    Characterizes soft law as a “trendsetter for the expanding content of international law” (p. 3) even though it defines it as a “law-like behavior that falls outside the principal sources of law identified in Article 38(1)” (p. 14). It highlights the role of the United Nations as a locus of soft law-making activity (p. 19).

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                                                                                                                                                                                                                                                                    • Dupuy, Pierre-Marie. “Soft Law and the International Law of the Environment.” Michigan Journal of International Law 12 (1991): 420–435.

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                                                                                                                                                                                                                                                                      An excellent reference article criticizing but accepting the paradoxical and ambiguous category of soft law because “albeit indirect, the legal effect of ‘soft’ law is nevertheless real, not merely a new term for an old (customary) process; it is both a sign and product of the permanent state of multilateral cooperation . . .” (p. 435).

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                                                                                                                                                                                                                                                                      • Juste Ruiz, José. “Orígenes y evolución del derecho internacional del medio ambiente.” In Derecho internacional del medio ambiente: Una visión desde Iberoamérica. Edited by Francesco Sindico, Rosa María Fernández Egea, and Susana Borrás, 3–30. London: Cameron May, 2011.

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                                                                                                                                                                                                                                                                        Reference volume from the Spanish academy characterizing international environmental law by its soft construction as well as the predominance of soft law over hard law. Among the sociological, political, and legal reasons for the emergence of soft law, the author emphasizes the law-making ability of international organizations, the divergent interests of developed and developing countries, and the evolution of science.

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                                                                                                                                                                                                                                                                        • Kiss, Alexandre, and Dinah Shelton. Guide to International Environmental Law. Leiden, The Netherlands: Martinus Nijhoff, 2007.

                                                                                                                                                                                                                                                                          DOI: 10.1163/ej.9781571053442.1-329Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                          The last work authored by Kiss together with Shelton, a must-read landmark volume in which the authors praise soft law as reflecting “the will of the international community to resolve a pressing global problem over the objections of one or a few states causing the problem, while avoiding the doctrinal barrier of their lack of consent to be bound by the norm” (p. 9).

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                                                                                                                                                                                                                                                                          Law of the Sea

                                                                                                                                                                                                                                                                          With respect to the law of the sea, soft law has served as a means to achieve those legislative developments that the international community felt were necessary but which never obtained the consent of the required states. Since the United Nations Convention on the Law of the Sea (UNCLOS) was adopted, soft law has extended into these fields in which consensus has been achieved by finding common ground for legislation, however fragile, as studied in Buzan 1981 and Gamble 1985–1986. Boyle 1999 sees a codification of previous soft law in some of the provisions of the UNCLOS provisions as well as in other conventions of the law of the sea. As Lugten 2006 affirms, “The purpose of soft laws is to draw attention to a problem, suggest appropriate behavior to deal with this problem, and provide a transition period for states to adopt behavioral change between the interstitial period of non-mandatory obligations of soft law and the development of hard law instruments” (p. 162). Thirty years after the adoption of UNCLOS, some problems have arisen that demand new legal responses. And issues have appeared especially with respect to those provisions related to environmental protection, which are equally soft, as pointed out in Klein 2005. Edeson 1999 points out in the case of fishing in the high seas regime that the solution to dealing with contentious issues has been found in issuing exhortatory statements, such as can be found in the Rio Declaration, the Declaration of Cancún, and General Assembly resolutions, that, on occasion, have had much greater impact than their actual legal status would suggest. As Lugten 2006 shows, the Food and Agricultural Organization (FAO) enacts soft law fishery instruments with sufficient “teeth” by transitioning either to a treaty reached by renegotiation or to a custom obtained by adherence of states. In the case of the port state control, Fajardo 2007 argues soft law incorporates as voluntary the mandatory measures foreseen for the flag state’s international conventions on maritime safety and protection of the marine environment, and yet, port states have reached a greater degree of compliance and effectiveness than flag states. In the case of the softer normativity within UNCLOS, it sometimes leads to a judicialization of the solutions as a last resort to fill in the gaps in missing consents, which has been a very creative solution, as analyzed in Treves 1999.

                                                                                                                                                                                                                                                                          • Boyle, Alan. “Some Reflections on the Relationship of Treaties and Soft Law.” International and Comparative Law Quarterly 48.4 (1999): 901–913.

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                                                                                                                                                                                                                                                                            Takes the 1982 UNCLOS as an example to show how some treaties give binding force to soft law instruments by incorporating them by implied reference into the terms of a treaty, since soft law “impliedly incorporating recommendations and resolutions of IMO, as well as treaties such as the 1973 MARPOL Convention” (p. 906). Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                            • Buzan, Barry. “Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea.” American Journal of International Law 75.2 (1981): 324–348.

                                                                                                                                                                                                                                                                              DOI: 10.2307/2201255Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                              Valuable work noting the unexpected result that some elements of UNCLOS have had a soft law nature, depending on “the level of agreement that can be achieved on a scale running from soft (definition and elaboration of issues), through medium (establishing principles, norms, guidelines, recommendations, and suchlike), to hard (conventional law)” (p. 345). Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                              • Edeson, William. “Closing the Gap: The Role of ‘Soft’ International Instruments to Control Fishing.” Australian Yearbook of International Law 20 (1999): 83–104.

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                                                                                                                                                                                                                                                                                Offers a most interesting approach in combining the experiences of scholars and practitioners in seeking to trace the evolution of regimes governing fishing throughout the range of soft law instruments that accompany hard law. Concludes that some of the functions of some regimes are to “reveal the stages in the development of concepts and principles such as the precautionary approach” (p. 83). Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                • Fajardo del Castillo, T. “El control por el estado del puerto: Cambios de rumbo en el derecho internacional del mar.” In Mares y océanos en un mundo en cambio: Tendencias jurídicas, actores y factores. Edited by José Manuel Sobrino Heredia, 401–426. Valencia, Spain: Tirant Lo Blanch, 2007.

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                                                                                                                                                                                                                                                                                  Concludes that soft law on port state control incorporates as voluntary the mandatory measures foreseen for the flag state’s international conventions on maritime safety and protection of the marine environment, and yet, port states have reached a greater degree of compliance and effectiveness than flag states.

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                                                                                                                                                                                                                                                                                  • Gamble, J. K. “The 1982 United Nations Convention on the Law of the Sea as Soft Law.” Houston Journal of International Law 37 (1985–1986): 37–47.

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                                                                                                                                                                                                                                                                                    Well-argued study on soft law developing its definition “to sharpen some of the tenets of soft law while providing a different vantage about the strengths and weaknesses of the law contained in the MBC” (p. 37). Concludes that the focus should be on the softness of law and not on soft law. Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                    • Klein, Natalie. Dispute Settlement in the UN Convention on the Law of the Sea. Cambridge, UK: Cambridge University Press, 2005.

                                                                                                                                                                                                                                                                                      DOI: 10.1017/CBO9780511494376Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                      Interesting study arguing that “provisions in Part XII of the Convention are indeed of soft law, imposing very flexible standards that are not conducive to third party settlement” (p. 152). Nevertheless, even though they are not strictly enforceable, the hortatory aspects of these obligations must not be ignored so as to avoid rendering the provisions entirely otiose.

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                                                                                                                                                                                                                                                                                      • Lugten, G. L. “Soft Law with Hidden Teeth: The Case for a FAO International Plan of Action on Sea Turtles.” Journal of International Wildlife Law and Policy 9 (2006): 155–173.

                                                                                                                                                                                                                                                                                        DOI: 10.1080/13880290600728179Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                        Even though poorly implemented, soft laws seem to be the last resort to protect the marine environment. Lugten examines how the FAO enacts soft law fishery instruments with sufficient “teeth,” acquired by transitioning to either a treaty reached by renegotiation or a custom obtained by adherence of states. Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                        • Treves, Tullio. “The Settlement of Disputes according to the Straddling Stocks Agreement of 1995.” In International Law and Sustainable Development: Past Achievements and Future Challenges. Edited by Alan E. Boyle and David Freestone, 253–270. New York: Oxford University Press, 1999.

                                                                                                                                                                                                                                                                                          DOI: 10.1093/acprof:oso/9780198298076.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                          Among the means of settlement of disputes, Treves praises nonbinding mediation or conciliation as these instruments “may in practice be more efficient because it may be easier to indicate the terms of a possible agreement, although the parties would not be bound by such terms” (p. 260).

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                                                                                                                                                                                                                                                                                          Arms Control

                                                                                                                                                                                                                                                                                          Dinah Shelton states that “multilateral arms control involves efforts to place limits on the quality and quantity of weapons of war” (Shelton 2000, p. 465; cited under General Overviews). She points out that in this field “it might be expected that non-binding norms would have little role to play, but the reality is that they serve both as precursors to binding agreements and as subsequent norms to fill in the technical gaps where complex technical regulation is required” (pp. 465–466). These functions have been amply developed in the “soft law forum” of the United Nations General Assembly, as Shaffer and Pollack 2011 put it. Lawmaking in arms control has involved both soft law and hard law in areas such as nuclear weapons or land mines, as analyzed in den Dekker 1998 in the case of arms control in the former Yugoslavia. In the case of nuclear weapons, Kellman 2000 examines the complex relationship existing between hard law and soft law in guaranteeing control over nuclear materials and in preventing the proliferation of nuclear weapons. Gualtieri 2000 studies nonbinding key decisions taken by weapons control supplier groups to restrict transfers of specific technology. Williamson 2003 concentrates on developments from creation of soft law instruments to enactment of hard law in the field of anti-personnel land mines. Joyner 2006 argues that soft law facilitates the creation of loose frameworks that can be strengthened over time, depending on the will of the actors involved. Thus, the European Union has moved beyond its initial soft law code of conduct to a legalization of its regime, as studied in Marrero Rocha 2011. In all these cases, the definition of soft law found in Meyer 2009 can be applied since these soft law instruments find their legal effect in separate legal instruments, namely in both international treaties and domestic law.

                                                                                                                                                                                                                                                                                          • den Dekker, G. “The Law of Arms Control, and Sub-regional Arms Control in the Former Yugoslavia: ‘Hard’ Law in a ‘Soft’ Law Context.” Netherlands International Law Review 45.3 (1998): 363–388.

                                                                                                                                                                                                                                                                                            DOI: 10.1017/S0165070X00002229Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                            This work assesses the subregional arms control measures that have been established pursuant to provisions of the General Framework Agreement for Peace in Bosnia and Herzegovina, concluding that finally “the security context of arms control has induced states into concluding treaties and into establishing treaty-based supervisory mechanisms” (p. 372). Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                            • Gualtieri, David S. “The System of Non-proliferation Export Controls.” In Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Edited by Dinah Shelton, 467–485. Oxford: Oxford University Press, 2000.

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                                                                                                                                                                                                                                                                                              Gualtieri focuses on the nonbinding export control guidelines as developed and applied by “supplier groups” to block international trade in weapons-related technologies, although he concludes that this system and these groups must be made legitimate in the eyes of the developing world, responding to principles of universality, transparency, and democracy.

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                                                                                                                                                                                                                                                                                              • Joyner, Daniel. Non-proliferation Export Controls: Origins, Challenges and Proposals for Strengthening. Aldershot, UK: Ashgate, 2006.

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                                                                                                                                                                                                                                                                                                Praises the fact that “soft legalization makes agreements possible under circumstances that might otherwise cause negotiations to fail – a large number of states, divergent preferences, varying levels of consensus across different sub-issues and varying levels of state capacity” (p. 444).

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                                                                                                                                                                                                                                                                                                • Kellman, Barry. “Protection of Nuclear Materials.” In Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Edited by Dinah Shelton, 486–504. Oxford: Oxford University Press, 2000.

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                                                                                                                                                                                                                                                                                                  After assessing the development of the regime on nuclear materials through hard and soft law instruments, Kellman concludes by pointing out that with respect to control of these materials the choice in favor of soft law reflects the premise: “Function dictates legal form” (p. 505).

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                                                                                                                                                                                                                                                                                                  • Marrero Rocha, Immaculada. “El régimen de comercio de armas convencionales de la Unión Europea.” Revista de Derecho Comunitario Europeo 40 (2011): 669–700.

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                                                                                                                                                                                                                                                                                                    Assesses the European Union’s arms control regime from its inception as a soft law instrument to its final hard law version. The author points to the lessons learned in this process that can serve as a model for international initiatives.

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                                                                                                                                                                                                                                                                                                    • Meyer, Timothy. “Soft Law as Delegation.” Fordham International Law Journal 32 (2009): 888–942.

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                                                                                                                                                                                                                                                                                                      Defining soft law “as those obligations that, while not legally binding themselves, are given some legal effect through separate legal instruments,” Meyer uses the Nuclear Suppliers Group Guidelines as measures that meet that definition in constituting instruments that are not legally binding on states, but giving content to legally binding obligations in the Nuclear Nonproliferation Treaty and domestic legislation (p. 888).

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                                                                                                                                                                                                                                                                                                      • Shaffer, Gregory C., and Mark A. Pollack. “Hard versus Soft Law in International Security.” Boston College Law Review 52 (2011): 1147–1241.

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                                                                                                                                                                                                                                                                                                        Assesses interactions of hard law and soft law regarding two issues of international security law: the legality of the threat or use of nuclear weapons and the legality of the use of force under the “responsibility to protect” doctrine. Concludes that soft law has been misused to undermine fundamental norms of the international legal system.

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                                                                                                                                                                                                                                                                                                        • Williamson, Richard L., Jr. “Hard Law, Soft Law, and Non-law in Multilateral Arms Control: Some Compliance Hypotheses.” Chicago Journal of International Law 4 (2003): 59–82.

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                                                                                                                                                                                                                                                                                                          Williamson notes that concluding arms control agreements does not guarantee compliance with them, and, after comparing soft law and hard law compliance in different scenarios and circumstances, he defends the idea of supporting international treaties with soft law and non-law measures. Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                                          Enforcement and Compliance

                                                                                                                                                                                                                                                                                                          Dinah Shelton states that “at first glance it is not apparent that studying compliance with soft law is different from studying compliance with treaties or customary law” (Shelton 2000, p. 119). In fact, compliance with soft law instruments can be driven by factors similar to those that compel compliance with treaty or customs, as noted in Brown Weiss 2000, and as Baxter 1980 remarks, even though soft law is “complied with in fact but not under the coercion of the principle of pacta sunt servanda or any other rules of customary international law” (p. 566). Shelton 2000 notes that compliance levels show a wide range of degrees of compliance even within a single instrument, and Brown Weiss 2000 examines the factors that help to explain the differences in compliance, namely the content of the norm and its legitimacy. Shelton 2006 (cited under the Sources of International Law), considers “institutional monitoring supervisory mechanisms, and follow-up may be even more important in the context of non-binding norms, where the compliance pull attributable to law is missing” and “states have been asked to submit reports on compliance with declarations and programs of action, in a manner that mimics, if not duplicates, the mechanisms utilized in treaties” (p. 319). Among the means to compel compliance, there seems to be little doubt that, in principle, countermeasures are available to a state in response to another state’s noncompliance with soft law, as noted by Gruchalla-Wesierski 1984–1985 (p. 84), and even though Seidl-Hohenveldern 1980 considers that the “state affected by such non-observance would not be authorized by international law to resort to reprisals” (p. 205). Although, Boyle 1999 affirms that soft law is not enforceable through binding dispute resolution, he gives examples representing “some of the gradations on a spectrum of possibilities, which shade ultimately into dispute avoidance, but in this category it is the character of the dispute resolution process which determines whether we have hard or soft law” (p. 902).

                                                                                                                                                                                                                                                                                                          • Baxter, Richard R. “International Law in ‘Her Infinite Variety.’” International and Comparative Law Quarterly 29.4 (1980): 549–566.

                                                                                                                                                                                                                                                                                                            DOI: 10.1093/iclqaj/29.4.549Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                            Asserts the fact of soft law as “complied with in fact but not under the coercion of the principle of pacta sunt servanda or any other rules of customary international law.” Moreover, he argues: “States do set up by agreement machinery of co-operation and co-ordination which does not have the complexity of international organisations . . .” (p. 566). Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                                            • Boyle, Alan E. “Some Reflections on the Relationship of Treaties and Soft Law.” International and Comparative Law Quarterly 48.4 (1999): 901–913.

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                                                                                                                                                                                                                                                                                                              Posits that, in the case of the soft law provisions of the law of the sea, the problem lies in whether they are enforceable through binding dispute resolution systems. Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                                              • Brown Weiss, Edith. “Conclusions: Understanding Compliance with Soft Law.” In Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Edited by Dinah Shelton, 535–553. Oxford: Oxford University Press, 2000.

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                                                                                                                                                                                                                                                                                                                A must-read work on compliance with, and commitment to, soft law. Explains compliance by means of theories about informal social norms and examines the factors affecting compliance, concluding that compliance with both soft law and hard law is affected by the intent and capacity of state and nonstate actors.

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                                                                                                                                                                                                                                                                                                                • Gruchalla-Wesierski, Tadeusz. “A Framework for Understanding ‘Soft Law.’McGill Law Journal 30 (1984–1985): 37–88.

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                                                                                                                                                                                                                                                                                                                  Concludes that “the essence of an enforceable norm is its objectivity” and “the objective portion of the norm that sanctions against a non-complying party may be justified” (p. 86). The author considers that as soft law has a much greater subjective component than harder law, its enforceability is limited.

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                                                                                                                                                                                                                                                                                                                  • Seidl-Hohenveldern, Ignaz. Recueil des Cours. Vol. 163 (1979–II), International Economic “Soft Law.” The Hague: Martinus Nijhoff, 1980.

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                                                                                                                                                                                                                                                                                                                    A reference work examining follow-up procedures to quasi adjudication to be applied to soft law instruments, criticizing most especially enforcement that “will be almost too strong a word for the following-up of States attitudes concerning ‘soft law’” (p. 205).

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                                                                                                                                                                                                                                                                                                                    • Shelton, Dinah. “Editor’s Concluding Note: The Role of Non-binding Norms in the International Legal System.” In Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Edited by Dinah Shelton, 554–556. Oxford: Oxford University Press, 2000.

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                                                                                                                                                                                                                                                                                                                      Shelton concludes that “the considerable recourse to and compliance with non-binding norms appears to represent a maturing of the international system” (p. 556).

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                                                                                                                                                                                                                                                                                                                      New Modes of Governance

                                                                                                                                                                                                                                                                                                                      Mörth 2004 insightfully considers that the interdependency among the members of the international society and the global civil society has led to an increasing demand for governance without government by means of a new regulatory mode, soft law. Soft law is considered as a component of the new governance. New governance leads to new law, so “various ‘soft’ or non-binding mechanisms may be used to develop normative commitments that eventually lead to the creation of ‘hard law’ either through judicial interpretation or statutory innovation,” as Trubek and Trubek 2005 notes (p. 7). Héritier 2003 argues that the political capacity and policy effectiveness of the new modes of governance depend on the particular type of problem dealt with in the policy-making process. Shaffer and Pollack 2010 criticizes the interactions of hard law and soft law in a fragmented international legal system, where they serve not only as alternatives or complements, but also as antagonists; thus, when they compete, it may lead to a reduction of legal certainty and predictability, especially where there is distributive conflict between powerful states. The interactions between the concept of governance in the European Union and the concept of soft law are thoroughly analyzed in a 2007 special issue of the Columbia Journal of European Law as well as in Héritier and Rhodes 2010 and in Diedrichs, et al. 2010. One of the most successful research projects on soft law is the New Modes of Governance Project, financed by the European Commission through its Sixth Action Programme. The scholars involved, the coordination of whom has been undertaken by the European University Institute and its Robert Schuman Centre for Advanced Studies, working in seminars and conferences, have produced interesting and thought-provoking articles. These works are available online on the project website, which constitutes a reference source of the best literature on the subject. Other projects have been undertaken but the results have produced little of noteworthy interest, merely echoing the products of past debates.

                                                                                                                                                                                                                                                                                                                      • Diedrichs, Udo, Wulf Reiners, and Wolfgang Wessels. “New Modes of Governance: Policy Developments and the Hidden Steps of EU Integration.” In New Modes of Governance in Europe: Governing in the Shadow of Hierarchy. Edited by Adrienne Héritier and Martin Rhodes, 19–46. New York: Macmillan, 2010.

                                                                                                                                                                                                                                                                                                                        DOI: 10.1057/9780230306455Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                        Considers that “the growing use of soft law has been widely identified as a way of steering without coercion, leaving broad ranges of autonomy to EU institutional actors, member states and private actors with regard to the implementation of measures and to their individual adjustment to common objectives” (p. 24).

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                                                                                                                                                                                                                                                                                                                        • Héritier, Adrienne. “New Modes of Governance in Europe: Increasing Political Capacity and Policy Effectiveness?” In The State of the European Union: Law, Politics and Society. Edited by Tanja A. Börzel and Rachel A. Cichowski, 105–126. Oxford: Oxford University Press, 2003.

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                                                                                                                                                                                                                                                                                                                          Argues that the political capacity and policy effectiveness of the new modes of governance depend on the particular type of problem dealt with in the policy-making process. Soft law and non-binding instruments can do this.

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                                                                                                                                                                                                                                                                                                                          • Héritier, Adrienne, and Martin Rhodes, eds. New Modes of Governance in Europe: Governing in the Shadow of Hierarchy. New York: Macmillan, 2010.

                                                                                                                                                                                                                                                                                                                            DOI: 10.1057/9780230306455Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                            Extended version of the final report presented to the European Commission and edited by the two scientific directors of the NEWGOV project. In chapter 2, “Governing in the Shadow of Hierarchy: New Modes of Governance in Regulation” (pp. 48–74), Adrienne Héritier and Dirk Lehmkuhl argue that the political capacity and policy effectiveness of the new modes of governance depend on the particular type of problem dealt with in the policy-making process.

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                                                                                                                                                                                                                                                                                                                            • Mörth, Ulrika, ed. Soft Law in Governance and Regulation: An Interdisciplinary Analysis. Cheltenham, UK: Edward Elgar, 2004.

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                                                                                                                                                                                                                                                                                                                              Provides excellent insight into the new governance without government that results from the new interdependent global society that uses soft law as a regulatory framework. Examines controversial issues such as the relationship between soft law and democracy and meta organizations.

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                                                                                                                                                                                                                                                                                                                              • New Modes of Governance Project.

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                                                                                                                                                                                                                                                                                                                                Scholars and students will find the contributions from participants in this project very valuable. It has been labeled an “excellent project” by the European Commission’s independent evaluators.

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                                                                                                                                                                                                                                                                                                                                • Shaffer, Gregory C., and Mark A. Pollack. “Hard vs. Soft: Alternatives, Complements, and Antagonists in International Governance.” Minnesota Law Review 94 (2010): 706–799.

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                                                                                                                                                                                                                                                                                                                                  Thorough analysis criticizing the interactions of hard law and soft law in a fragmented international legal system where they serve not only as alternatives or complements, but also as antagonists. Thus, when they compete, it may lead to a reduction of legal certainty and predictability, especially where there is distributive conflict between powerful states.

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                                                                                                                                                                                                                                                                                                                                  • Special Issue: Narrowing the Gap: Law and New Approaches to Governance in the EU. Columbia Journal of European Law 13.3 (2007).

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                                                                                                                                                                                                                                                                                                                                    Includes articles stemming from a conference held in London in 2006 to examine how the increasing use of “new governance” in the European Union has affected the understanding of law and the role of law.

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                                                                                                                                                                                                                                                                                                                                    • Trubek, David, and Louise Trubek. “Hard and Soft Law in the Construction of Social Europe: The Open Method of Coordination.” European Law Journal 11.3 (2005): 343–376.

                                                                                                                                                                                                                                                                                                                                      DOI: 10.1111/j.1468-0386.2005.00263.xSave Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                                      Argue that social dialogue can be considered as a new governance approach as it relies on bargaining by private actors to set norms, not the traditional EU route based on European Commission initiative, European Parliament co-decision, and European Council approval. Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                                                                      International Relations and Other Disciplines

                                                                                                                                                                                                                                                                                                                                      Soft law has drawn interest among scholars working in international relations and other disciplines such as political science and sociology in its status as a component of the new governance. As Mörth 2004 points out, the literature on the origins of the concept of soft law “indicates that it has been used in close connection with the real world events and processes” and that “it was created at a time when political scientists and international legal scholars needed new concepts in order to make sense of a changing world” (p. 5). As the contributors to Trubek, et al. 2005 affirm, the literature in international relations “offers a variety of general explanations for why soft law might be preferable to hard law in some circumstances” (p. 10). A lively debate was launched on this topic among contributors to a special issue of International Organization titled Legalization and World Politics. In this issue, Abbott, et al. 2000, based on the authors’ conception of legalization, seek to create “common ground for political scientists and lawyers by moving away from a narrow view of law as requiring enforcement by a coercive sovereign” (pp. 402–403). The authors attribute three dimensions to legalization: obligation, precision, and delegation. Abbott and Snidal 2000, following a rationalist perspective, consider that hard law is “precise and that delegate[s] authority for interpreting and implementing the law,” while soft law “begins once legal arrangements are weakened along one or more of the dimensions” (p. 421). In the next issue of International Organization, Finnemore and Toope 2000 offers alternatives to legalization from a constructivist approach; the authors, in any event, acknowledge the importance of soft law as an element in the debate. The contributors to Trubek, et al. 2005 propose a hybrid theory that brings together rationalist and constructivist approaches to soft law and hard law in considering that “the rationalist account suggests that soft law is a way to allow Member States to avoid hard decisions and defer making choices that, it is alleged, hard law would require. On the other hand, the constructivist story indicates that use of soft law measures like the OMC may be a better way to bring about those very decisions and facilitate the hard choices rationalists think are being deferred. Since reality probably reflects a mix of these two motives and effects, it seems clear that we need a synthetic approach to soft law that would integrate elements of these two perspectives” (pp. 30–31).

                                                                                                                                                                                                                                                                                                                                      • Abbott, Kenneth W., Robert O. Keohane, Andrew Moravcsik, Anne Marie Slaughter, and Duncan Snidal. “The Concept of Legalization.” International Organization 54 (2000): 401–419.

                                                                                                                                                                                                                                                                                                                                        DOI: 10.1162/002081800551271Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                                        The authors write from an international relations approach in this useful article that introduces a framework of analysis that has been adopted by many legal scholars and political scientists as a means by which to approach soft law. The authors distinguish hard law from soft law along a “multidimensional continuum” ranging from hard law through multiple forms of “soft legalization to the complete absence of legalization” (pp. 401–402).

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                                                                                                                                                                                                                                                                                                                                        • Abbott, Kenneth W., and Duncan Snidal. “Hard and Soft Law in International Governance.” International Organization 54 (2000): 421–456.

                                                                                                                                                                                                                                                                                                                                          DOI: 10.1162/002081800551280Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                                          Provides perhaps the most fully developed version of the functional approach applied to soft law and governance; considers that the major advantage of soft law is greater flexibility in the face of uncertainty. Soft law produces lower negotiating costs and greater opportunity for compromise when state preferences are deeply diverse.

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                                                                                                                                                                                                                                                                                                                                          • Finnemore, Martha, and Stephen Toope. “Alternatives to ‘Legalization’: Richer Views of Law and Politics.” International Organization 55.3 (2000): 743–758.

                                                                                                                                                                                                                                                                                                                                            DOI: 10.1162/00208180152507614Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                                            In response to Abbott, et al. 2000, in the subsequent issue of International Organization, the authors offer alternatives to legalization from a constructivist approach; in any event, they acknowledge the importance of soft law as an element in the debate. Available online for purchase or by subscription.

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                                                                                                                                                                                                                                                                                                                                            • Mörth, Ulrika. “Introduction.” In Soft Law in Governance and Regulation: An Interdisciplinary Analysis. Edited by Ulrika Mörth, 1–9. Cheltenham, UK: Edward Elgar, 2004.

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                                                                                                                                                                                                                                                                                                                                              Assesses how the literature on the origins of the concept of soft law “indicates that it has been used in close connection with real world events and processes,” pointing out that “it was created at a time when political scientists and international legal scholars needed new concepts in order to make sense of a changing world” (p. 5).

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                                                                                                                                                                                                                                                                                                                                              • Trubek, David M., Patrick Cottrell, and Mark Nance. “‘Soft Law,’ ‘Hard Law,’ and European Integration: Toward a Theory of Hybridity.” Jean Monnet Working Paper 02/2005. New York: Jean Monnet Program, New York University School of Law, 2005.

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                                                                                                                                                                                                                                                                                                                                                Surveys international relations theory on soft law in examining EU sectors as case studies. Concludes that there are two major lacunae: a failure to create an integrated approach to soft law itself and a lack of a unified theory on the relation of soft law to hard law, which the authors call hybridity.

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