Implications of Opting for a Legal, Positivist Conception of Soft Law
In opting for a definition that is tied into the established framework of international law, certain factors that are sometimes cited as soft law parameters must be viewed in light of the requirements for the development of international law. For example, that a set of norms influences behaviour does not alone indicate the soft law character of those norms, as there are plenty of other types of norms that influence behaviour that are in no sense legal. Consideration also has to be given to author, addressee, formulation, and acceptance by states in terms of practice and sense of legal obligation. Thus, a set of human rights guidelines developed by NGOs and subsequently implemented by corporations, without more (e.g. state acceptance, involvement, regulation), would not qualify as soft law, irrespective of the intended or actual impact they had on changing the behaviour of the target audience.
This brings us to the issue of non-state actors. It is well-established that international law may impose legal obligations and confer legal rights on non-state actors. However, states remain the exclusive authors!8 of international law. Thus, rules formulated by NGOs, academics, and other non-state actors cannot be soft law if they are not already in the process of incubationd9 The texts that they produce would not be soft law instruments as the authors are not endowed with any law-making power. Nonetheless, such rules and texts may have a relationship with soft law. They may reflect existing soft law norms or contribute to the development of new soft law norms by influencing state practice and opinio juris. The texts produced by these non-state actors could also be subsequently adopted in an intergovernmental setting, potentially converting them into soft law instruments. Indeed, in practice, there is substantial input by non-state actors in the development of soft law instruments, and some such instruments find their origins in meetings convened by nonstate actors.
Thus, while such rules and texts would not qualify as soft law or soft law instruments as defined in this chapter, they are potentially highly relevant to the generation and use of soft law. As such, and to this extent, they constitute part of the subject matter examined in this volume.
Finally, and as noted in this chapter, law is excluded from this definition of soft law. However, just as there will be different views as to whether a norm has gained sufficient traction to enter the realm of soft law, so will there be different views at the other end of the spectrum—as to whether, and at what point, a norm has passed from the realm of soft law into law.2° Indeed, much of the work undertaken by the authors focuses on precisely this point.
And, again, to say that soft law is not law, is not to say that it is irrelevant to legal analysis. As will be amply demonstrated in the chapters of this volume, soft law can and does have legal effects.21
- 2° A contemporary example of such difference of views is reflected in the US letter to the ICRC following the publication of the latter’s Study on Customary International Humanitarian Law. See: ‘Joint letter from John Bellinger and William Haynes to Jakob Kellenberger on Customary International Law Study’, International Legal Materials vol. 46 (2007): 9. (‘The Study’s summary states: “It appears that the United States is a ‘persistent objector’ to the first part of this rule. In addition, France, the United Kingdom and the United States are persistent objectors with regard to the application of the first part of this rule to the use of nuclear weapons.” However, the weight of the evidence—including the fact that ICRC statements prior to and upon conclusion of the Diplomatic Conference acknowledged this as a limiting condition for promulgation of new rules at the Conference; that specially affected States lodged these objections from the time the rule first was articulated; and that these States have made them consistently since then—clearly indicates that these three States are not simply persistent objectors, but rather that the rule has not formed into a customary rule at all.’)
- 21 See the Introduction to this volume and: J. d’Aspremont, Formalism and the Sources of International Law (Oxford: Oxford University Press, 2011): 149.