Hard law versus soft law
The management of common international affairs relies on formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to, or perceive to be in their interest. If one focuses, here, on the former aspects and envisages global governance from the perspective of a rules-based system, what are those rules? Where does one find them?
A usual way to start exploring this issue is to consider what constitutes international law – or in legal terms what are the sources of international law. The classic response to this question can be found in Article 38 of the Statute of the International Court of Justice (ICJ), an Annex to the UN Charter adopted in 1945. Article 38 defines the sources of law that the ICJ shall apply to settle disputes:
- a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states ;
- b. international custom, as evidence of a general practice accepted as law;
- c. the general principles of law recognized by civilized nations ;
- d. subject to the provisions of Article 59 [“The decision of the Court has no binding force except between the parties and in respect of that particular case”], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
International conventions, or treaties, are the most straightforward instruments used by states to consent to limitations of their sovereignty. They become legally binding after a process of signature and domestic ratification. The use of treaties varies across domains of activities. They have proliferated to govern international investment flows, with more than 3,000 bilateral investment treaties currently in force. They have remained rare in the domain of global health or in the domain of finance and banking.
Whereas many treaties are negotiated and developed as a response to specific needs between specific groups of countries (from bilateral to multilateral groupings), they may also be the result of a codification exercise of existing customary law. This has been the case in humanitarian law with the Geneva Conventions or with the Treaty of the Law of the Sea. Treaties that contain provisions coming from international custom have effects beyond their mere signatories (for those provisions). Indeed, international custom, once established, has a universal reach. The difficulty, however, lies in the establishment of a general practice by states, a practice that in addition has to be accepted as law. Evidence of practice and legal acceptance is a demanding requirement, thus limiting the scope of international custom. Proof of practice does not apply however to a specific case of rules – called jus cogens – that benefit from a higher status in international law. These rules are peremptory without any opt-out possibility for states. They include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination
As indicated in Article 38 (d), international court decisions do not create obligations beyond the parties and the specific case at hand, indicating a clear willingness of states to limit judicial delegation. Yet, nothing prevents states to explicitly go beyond this role for international courts, as best exemplified by the case of the European Court of Justice (ECJ) in the European Union (EU). Opinions of that Court are binding upon member states and become part of EU law.
Although the number of rules produced by the instruments listed in Article 38 of the ICJ Statute can already be high, global governance relies on many other rules, albeit most of them with a different legal status. First, one must consider acts by international bodies or organisations created by international treaties. In that category, some acts produce legally binding effects on members. For instance, resolutions of the UN Security Council to prevent its members to conduct some specific transactions with a specific State are legally binding upon the UN membership. Similarly, directives or regulations adopted by the EU (jointly by the Council of Ministers and the European Parliament) are binding upon its members. But many “regulatory” acts of those international bodies lack such legal enforceability power. Consider for instance the World Health Organisation (WHO) Code of Marketing for Breast-Milk Substitutes, the Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises, or the UN Global Compact.
A second, and expanding, category includes “regulatory” acts adopted by non-state actors, be they standard-setting organisations such as ISO (see week 1) or ad-hoc standard-setters, such as WWF and Unilever for MSC (see week 1). As mentioned in week 1, the number of standards developed by non-state actors has exploded in the last 30 years, leading to vivid discussions about their meaning and impact on international law. Standards or codes of conduct established by non-state actors are voluntary and lack legal enforceability at the international level. Yet, given that they may induce significant change of behaviour by those adopting them, they constitute a kind of “soft law” in contrast to the “hard law” nature of instruments listed in Article 38 of the Statute of the ICJ. Both categories are now widely considered as useful complements, rather than competitors, to each other.
© Cédric Dupont