Materiales y métodos Modelo hidrodinámico

Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System 21, 23-25 (Dinah Shelton ed., 2000)

A range of opinion exists on the theoretical and practical desirability of soft law. Some authors have long rejected formal distinctions between international law and policy; others acknowledge that the contemporary international law-making pro- cess is complex and deeply layered, that there is a ‘‘brave new world of international law’’ where ‘‘transnational actors, sources of law, allocation of decision function and modes of regulation have all mutated into fascinating hybrid forms. International law now comprises a complex blend of customary, positive, declarative and soft law.’’ From this perspective, drawing a formal distinction between hard and soft obliga- tions is less important than understanding the processes at work within the law- making environment and the products that flow from it.

In an impassioned backlash to the perceived blurring of the binary (positivist) division between law and non-law, other theorists reject outright the notion of law- making through non-binding instruments. The idea of different categories of law is seen to weaken the objectives of stability and certainty, creating a ‘‘gliding binding- ness’’ and even undermining the international rule of law. They uphold the exclusive criteria of formal legal validity listed in Article 38(1) of the Statute of the ICJ . . . strongly reiterating that they are not ‘‘some esoteric invention but rather they pro- vide criteria by which the actual expectations and commitments of States can be tested.’’ Klabbers [one of the critics of soft law as a distinct category of international law] argues for the redundancy concept of soft law, asserting that to denote an instru- ment as ‘‘soft law’’ is to impute legal character to it, albeit of a different nature (or degree) than that of hard law. This necessarily raises difficult questions about further legal consequences, such as whether violation of a principle of soft law amounts to an internationally wrongful act and thus incurs responsibility that can be imputed to the state, or whether it has some other ‘‘softer’’ consequence? Klabbers asserts that:

. . . [I]f it could be claimed that soft law leads, in its application, to either hard law (hard responsibility, hard sanctions) or to non-law (no responsibility and no sanctions), soft law loses its distinctiveness, and therewith its reason of existence.

. . . [Klabbers considers that]

Our binary law is well capable of handling all kinds of subtleties and sensitivities; within the binary mode, law can be more or less specific, more or less exact, more or less determinate, more or less serious, more or less far-reaching; the only thing it cannot be is more or less binding.

. . . The concept of international soft law thus remains controversial. On an overtly political level, acceptance of normative standards articulated through soft forms of law-making entails recognition that the rigid control of states over that process is weakening. Yet public international law is not alone in seeking a variety of techniques and devices for changing, predicting, and monitoring behavior. Social systems utilize both binding principles and substrata of non-binding principles that are not and need not be incorporated within formal law-making processes, but still create normative standards and expectations of appropriate behavior. Indeed the priority accorded to law and legal sanction by western societies is not universal; other cultures readily employ non-legal forms of social control. Domestic legal systems avail themselves of diverse means of regulating conduct. Some are widely applicable, others appertain to societal sub-groups, often in forms of self-regula- tion, for example through codes of conduct of professional associations. Similar distinctions are inherent in European Community law-making. That international law has progressed in a similar fashion may be a sign of a maturing system breaking free of the limitations of exclusive law-making through treaty and custom and recognizing a decline of the consensual system.

In Section I of this chapter, Professor Lipson outlined some of the reasons states might prefer treaties to less formal agreements. In the following excerpt, Professor Dinah Shelton suggests some of the reasons why actors may prefer soft law over treaties or other forms of hard law.

Dinah Shelton, Law, Non-Law and the Problem of ‘‘Soft Law’’

Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System 1, 12-13 (Dinah Shelton ed., 2000)

(1) Bureaucratization of international institutions has led to law that is ‘‘deformalized’’ through programs of action and other policy instruments . . . . Technical details, need for flexibility, and rapid response necessitate per- manent institutions with the competence and mandate to initiate norm-creation, monitor and assist performance, and secure compliance. Where institutions can assess performance, hard law may not be necessary because state behavior is likely to change in response to the assessments. Moreover, international institu- tions generally lack the power to adopt binding instruments and can only have recourse to soft law.

(2) The choice of non-binding norms and instruments may reflect respect for hard law, which states and other actors view cautiously. They may use the soft law form when there are concerns about the possibility of non-compliance, either because of domestic political opposition, lack of ability or capacity to comply, uncer- tainty about whether compliance can be measured, or disagreement with aspects of the proposed norm. . . .

(3) Soft law instruments may be intended to induce states to participate or to pressure non-consenting states to conform. Some environmental treaties . . . have sought to influence the behavior of non-parties, but, in general, treaty rules pre- clude binding non-consenting states. . . .

(7) Soft law generally can be adopted more rapidly because it is non-binding. It can also be quickly amended or replaced if it fails to meet current challenges. Its flexibility extends to implementation and compliance where the dynamic interac- tion of the various actors can play a crucial role. It may be that an increased number of negotiating states makes it more likely that there will be few hard law agreements in the global setting. If this is the case, we would expect to see more soft law on the global than the regional level, and that appears to be the case.

Notes and Questions

1. In what sense can an instrument that is not legally binding qualify as a form of law? Is the very concept of ‘‘soft law’’ a contradiction in terms? Are there any legal consequences to the failure to comply with the terms of a soft law instrument? Does it depend on the specific instrument?

2. Do you agree with critics who argue that blurring the distinction between law and nonlaw through the proliferation of quasi-legal instruments undermines efforts to use law to promote stability and certainty in international relations, and possibly undermines the rule of law itself? What countervailing benefits does soft law offer?

3. Would you expect soft law to be more common in certain issue areas than others? Or is the use of soft law a function of the level of consensus that states share on a particular issue? Or might it depend on the ‘‘structure’’ of the problem states face? Game theory, a form of rational choice analysis that is frequently applied to international relations, suggests that states often encounter both ‘‘coordination’’ and ‘‘collaboration’’ problems. In coordination problems—such as the language airline pilots and air traffic controllers should use in international flights—it is often difficult to reach an agreement. But once an agreement has been reached there are few incentives not to follow the rule. In collaboration problems—such as arms control—there are benefits from following agreed rules, but often potentially greater benefits from noncompliance. Does this suggest a way of understanding when states are more likely to use soft law, and the conditions under which soft law will be as effective as other forms of international law?

4. Are developed and developing countries likely to have different attitudes toward soft law? Consider the following excerpt, written in 1988:

The rapid growth of soft law and complaints about it are, in large part, a concern of the developed countries. Part of it has to do with the deep dissatisfaction that we [in developed countries] feel at the shift of power within formal lawmaking arenas, in which we are a numerical minority. We discover that many of these fora make law we do not like. This law, we insist derisively, is soft. This may be a valid complaint, but those who are making this soft law also have a valid complaint. From their perspective, customary law, which we would consider very hard, is in fact law that is created pri- marily because of the great power that we in the industrial world exercise over others. There are really two sides to the controversy over soft law. It is important, when we criticize it, to appreciate that there are others on the other side of the mirror who are looking at it quite differently.

A Hard Look at Soft Law, Remarks by W. Michael Reisman, 82 Proc. Am. Socy. Intl. L. 373, 377 (1988).

E. The World Bank Guidelines on the Treatment of

Foreign Direct Investment

The following materials continue the story of international efforts to regulate for- eign direct investment and illustrate the ways in which soft law has interacted with both treaties and custom, and in the process contributed to the evolution of legal norms in that area. As you read these materials, consider the role played by each form of international law in dealing with the disputes at issue, the reasons why a particular form seemed appropriate at a particular time, and the interests of the actors involved in emphasizing one form of law over another.

In the late 1970s, the United Nations initiated a series of efforts to generate an international consensus on the treatment of foreign direct investment. But the diver- gence in views between the capital importing and capital exporting countries was then too large to surmount. In 1985, the World Bank considered the possibility of incorporating standards for the treatment of foreign investors into its draft conven- tion for the creation of the Multilateral Investment Guarantee Agency, but again the subject proved too controversial to articulate detailed and meaningful standards.

In 1991, the World Bank decided to try again. The first issue to decide was whether to pursue a convention or a set of nonbinding guidelines. Ibrahim Shihata, Vice President and General Counsel of the Bank and head of the relevant Working Group, describes the options and the Bank’s approach.