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‘Soft Law Instruments’

This definition of soft law is, and is intended to be, broad. It is not limited to norms derived from any particular source, formulated by any particular actor, or set forth in any particular type of instrument.

According to this understanding of soft law then, there are no instruments that are soft law as such. The rules reflected in a UN General Assembly Declaration, for example, may be soft law, and the form and provenance of such instruments may provide the necessary degree of support to establish the soft law character of the norms contained therein, but the instrument itself would not be soft law.

Nonetheless, the term ‘soft law’ is commonly used as a descriptor for certain types of instruments, including, but not limited to, normative statements in formally non-binding texts adopted by states in a multilateral setting. In addition, as this study focuses on the way in which soft law is being used, much of the practice surveyed involves recourse to codifications and other instruments as evidence to support or promote the existence of the relevant norms.

The term ‘soft law instruments’ then may be understood as referring to any instrument with normative content that by its form and provenance provides support sufficient to establish the minimum threshold of traction for at least some of the norms contained therein to be regarded as soft law.

There is an extensive catalogue of instruments that may be deemed to have at least some evidentiary weight as soft law. Of particular significance in the field of human rights, there are resolutions and other pronouncements of representative organs of IGOs (including declarations, principles, rules, and guidelines),[1] opinions of experts (or anyone else for that matter) that have been endorsed by states directly or through IGO organs/5 ad hoc intergovernmental processes for the elaboration of standards,[2] [3] [4] [5] [6] and treaty body jurisprudence (including general comments/recommendations, views, enquiries).!7 One might also include in this category decisions of regional and international courts and quasi-judicial bodies, in relation to those that are not parties to the particular dispute. Each of these types of instruments reflects at least some of the factors identified here.

  • [1] See Felipe Gomez Isa’s chapter in this volume.
  • [2] See the chapters by Stephanie Lagoutte, Christoph Good, Debra Long and Rachel Murray, andMegan Bradley and Angela Sherwood in this volume.
  • [3] See the chapters by Peter Vedel Kessing and Bruce Oswald in this volume.
  • [4] See the chapters by Kasey McCall-Smith and Matyas Bodig in this volume.
  • [5] This would include of course those entities empowered by states to create new rules of international law. While intergovernmental organizations increasingly engage in law-making, their authorityto do so can and must be traced back to states.
  • [6] This proposal of rules, or interpretations thereof, by academics and other non-state actors must bedistinguished from the use of academic writings ‘as subsidiary means for the determination of rules oflaw’, within the meaning ofArt. 38(1)(d) of the ICJ Statute. The latter are not sources of internationallaw, but merely provide evidence of what the rules are, with the rules themselves having their legalfoundation in Art. 38(1)(a)—(c).
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