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Soft law and its legal effects

A corollary to their norm-creating and norm-filling roles is that soft law instruments can potentially be recognized as having greater legal value and give rise to legal obligations. This can happen either through soft law instruments bearing direct legal effects (in very specific contexts), or seeing some of the provisions contained in soft law instruments ‘harden’, generally through the emergence and recognition of a rule of CIL.

As per the first scenario, there is a possibility for soft law to carry direct legal effects.[1] [2] [3] [4] [5] This is usually contingent, however, on the particular institutional context of an instrument’s adoption. Soft law instruments adopted within international organizations, for example, will have direct legal effects within the organization itself. It will be part of the organization’s legal framework and will be considered binding as far as its internal affairs are concerned, even if it is not directly binding for its member states.35

Soft law instruments, or, more specifically, particular provisions within one, can also potentially integrate the realm of hard law and give rise to legal obligations. This can happen if they are recognized as part of the body of CIL, itself a direct source of internationally binding obligations.36 In fact, a soft law instrument can be linked through various ways to the development of a customary practice and its recognition as law. It can do so through fostering consistent state practice (by providing a focal point and establishing common norms in a given issue-area), or providing evidence of opinio juris (the belief that a norm conveys a legal obligation)^7 the two constitutive elements for the recognition of CIL.38 Soft law can also influence the formation and recognition of CIL by encouraging states to define and formalize the content of existing customary practices.

In this respect, the UDHR, the first UNGA declaration (which also acted as a precursor to binding covenants in the international legal order), constitutes a precedent of a great magnitude. Indeed, even though it has been clearly adopted as a non-binding, aspirational document, some of its provisions have since been increasingly recognized as reflecting the state of CIL[6] [7] [8] [9] [10] [11] and considered binding erga omnes.40 Furthermore, since the UDHR is at the heart of the UN human rights system, its provisions mention, in a relatively general way, rights that were subsequently detailed in other soft and hard instruments. The argument being made that the UDHR is part of the body of CIL is then sometimes used as a basis to claim that other documents detail rights which should equally be recognized as CIL.41

The links between UNGA resolutions and the formation and recognition of CIL have been at times enhanced by International Court of Justice decisions. Indeed, there are precedents in the Court’s history where it directly considered soft law instruments in its evaluation of the presence of CIL. In the landmark Nicaragua case, for instance, the ICJ suggested that consensus on an UNGA resolution on a matter can contribute to proving opinio juris and establishing the presence of a norm of CIL.42 Again, the Court established that the consent of member states to a resolution of a declaratory nature can constitute a mark of acceptance of the validity of the substantive rules it contains. In the case of Resolution 2625, it remarked that ‘the adoption by States of this text affords an indication of their opinio juris as to customary international law on the question’.43 Such views are not uncontest- ably accepted in the international legal community^ but they certainly constitute precedents that fuel uncertainty regarding the legal status of soft instruments, even when initially adopted in a non-legally binding form.

Finally, beyond the realm of usual CIL, provisions contained in a soft law instrument can be given stronger legal value and give rise to legal obligations if they were deemed to reflect in substance general principles of law45 or jus cogens,[12] [13] as recognized within the sources of international law by the Statute of the International Court of Justice.

As seen, soft law can carry or lead to the recognition of binding obligations for its parties in various ways. This highlights the potential fluidity between soft and hard law, and the possibility that the distinctiveness of the former gradually becomes less salient as it gains similar attributes to the latter. In this respect, both categories could appear redundant, and the distinction, useless. There is, however, a major difference warranting the distinctiveness of those categories, and it is rooted in the degree of certainty regarding the legal effects of the instrument: while hard law is (by definition) creating legal obligations, the possibility for soft law to lead to the same outcome is acknowledged, but by no means automatic. The key difference is thus the uncertainty regarding soft law’s potential legal effects, a point to which we now turn.

  • [1] Without the need for it to be first recognized by a court or transposed in a binding instrument.
  • [2] T. Gruchalla-Wesierski, ‘A Framework for Understanding Soft Law’, McGill Law Journal vol. 30(1984): 52.
  • [3] 36 As recognized in Art. 38 of the ICJ Statute: ‘international custom, as evidence of general practiceaccepted as law’. United Nations, Statute of the International Court ofJustice (24 Oct. 1945), .
  • [4] H. Hannum, ‘The Status of the Universal Declaration of Human Rights in National andInternational Law’, Ga. J. Int’l & Comp. L. vol. 25 (1995): 321—2.
  • [5] In fact, some analysts go even further in their treatment of soft law’s links with CIL, suggestingthat the attitude of a state towards the adoption of a soft law instrument (at the voting stage) could notonly show evidence of opinio juris (voting in favour as evidence of that state’s belief that the instrumentreflects the status of customary norms), but also evidence of that state’s practice in accordance withthe emerging norm (voting in favour as evidence of ‘state practice’). See e.g.: discussion in E. Voyiakis,‘Voting in the General Assembly as Evidence of Customary International Law?’ in Reflections on theUN Declaration on the Rights of Indigenous Peoples, ed. S. Allen and A. Xanthaki (Oxford: Hart, 2011).This paper takes the more widely accepted view that voting behaviour can form potential evidence ofopinio juris, rather than of state practice per se. Still, notwithstanding the debate on the role of votingbehaviour in the formation of CIL, there is still a strong case to be made that voting towards the adoption of a soft law instrument can at least constitute a unilateral act giving rise to expectations that thestate will behave accordingly. When a state participates in the adoption of a soft law instrument, theinstrument will legitimize conforming conduct by establishing the presumption that acts conformingto the provisions of the instrument are done in good faith. Gruchalla-Wesierski (1984): 62.
  • [6] The UN Treaty Collection website notes: ‘Some instruments entitled “declarations” were not originally intended to have binding force, but their provisions may have reflected customary internationallaw or may have gained binding character as customary law at a later stage. Such was the case with the1948 Universal Declaration of Human Rights.’ See also: V. Lowe, International Law (Oxford: OxfordUniversity Press, 2007): 93; Hannum (1995): 321—6. The latter reviews multiple positions, from bothacademic research and diplomatic history, in support for provisions of the UDHR constituting CIL.Accounts are not unanimous, as not every actor is ready to ascribe customary law value to the whole ofthe document, but there is overwhelming support to the effect that the UDHR, in large parts, providesstrong evidence of CIL. Some would argue, in that regard, that there is a stronger case to be made forcivil and political rights than for its provisions on economic, social, or cultural rights.
  • [7] 4° I.e. even on states that did not necessarily consent to its adoption initially (apart from situationswhere a state would place itself in the position of ‘persistent objector’). See e.g.: O. Elias, ‘PersistentObjector’, in Max Planck Encyclopedia of Public International Law (Oxford: Oxford UniversityPress, 2009).
  • [8] 41 As Felipe Gomez Isa notes in the case of the UNDRIP, it is important to distinguish between thelegal value of an instrument itself, and that of the substantive rights it contains. For an exploration ofthe links between provisions of the UNDRIP and existing CIL see his chapter in this volume.
  • [9] 42 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica) (Merits) [1986] ICJ Rep. 14 (Nicaragua): 188.
  • [10] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States ofAmerica) (Merits) [1986] ICJ Rep. 14 (Nicaragua): 191.
  • [11] Voyiakis reports on criticism of the decision on the grounds that the ‘Nicaragua methodologyfails to note that States can support or oppose a given GA Resolution on different grounds and on thebasis of very different views as to whether that Resolution reflects or ought to reflect customary international law’. Voyiakis (2011): 220.
  • [12] ‘General principles of law recognized by civilized nations’ in the wording of the ICJ Statute.
  • [13] 46 I.e. ‘peremptory norm of general international law’. Vienna Convention on the Law of Treaties(adopted on 23 May 1969, entered into force 27 Jan. 1980) 1155 UNTS 331.
 
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