Soft Law in the Evolution of International Law

Under traditional international law, the sources for the emergence of law were primarily treaties and customary law. Accordingly, the creation of international rules was a predominantly state-led process. Contemporary international law-making has become a much more complex, dynamic, and, sometimes, contradictory process, with a number of norms, ranging from hard law conventions to soft law instruments, and with a multiplicity of actors participating. Nevertheless, as the long delay in the process that led to the adoption of the UNDRIP clearly shows, ‘the political will of states remains crucial to the law-making activities of non-state actors’.25

In this new scenario, soft law plays an increasingly relevant role, especially in the field of international human rights law. Soft law basically plays three main roles in the progressive development of international law/6 First, soft law instruments can perform an interpretative function, providing useful guidelines to fill gaps and lacunae in existing normative standards. Secondly, soft law can have a crystallizing effect on norms that are in a process of emergence as customary international law, that is, a soft law instrument such as a declaration adopted by a significant majority of states at the UN General Assembly can be the final stage of the formation of a given norm. The third function is a prospective function, since soft law instruments proclaim new rules aimed at generating international consensus so that these new norms can be accepted as legally binding, as either customary law or conventional law. In fact, many human rights treaties were preceded by declarations adopted by the UN General Assembly/7 and in this sense have a performative character/8

The presence of soft law in the current international legal panorama is essentially due to the growing relevance of international organizations in world politics (in particular the UN), the emergence of so-called third-world countries following the process of decolonization, and the progressive participation of a myriad of actors (both state and non-state actors/9 in the norm-creation processes. This has led to [1] [2] [3] [4] [5]

a necessary flexibilization of the methods for forming international law, which had been rooted in legal positivism and Article 38.1 of the Statute of the International Court ofJustice (1945).[6] [7] [8] [9] [10] [11] [12] [13] [14] Soft law is now a well-established legal category, and contemporary international law has to accommodate it within the varied processes for creating and implementing international norms. An in-depth analysis of current practice shows that the legal value of human rights norms is not the key element in promoting compliance with these norms, and in a number of cases formally nonbinding rules have played an even more effective role in encouraging human rights compliance.31

While the role played by soft law in contemporary international human rights law is undeniably relevant, there are also strong reasons to advocate a cautious approach.32 First of all, an anarchic and chaotic proliferation of soft law instruments can undermine the consistency and integrity of international law itself. In this sense, Prosper Weil has affirmed that international law ‘est malade de ses normes’, given that ‘the multiplication of soft instruments is a symptom of the weakness of the international legal system’.33 In Weil’s opinion, there exists a clear ‘normativity threshold’ that serves to distinguish between law and non-law. If that is not the case, and the threshold is not clearly established, international law may become a ‘relative’ legal system.34 Other scholars counter that this threshold cannot be strictly delineated, since there is a grey area between law and non-law within which the resolutions of international organizations play a pre-eminent role, and that the legality-legitimacy dialectic will always be present.35 Accordingly, a certain degree of relative normativity is ‘inevitable’,36 being inherent to every legal system, and soft law can become a vital tool for the interpretation of existing international norms and the formulation of new customary rules and general principles.

The quality of international norms is also a serious concern associated with the increasing role played by soft law. In the context of the emergence of the so-called third-generation human rights in the 1980s, Philip Alston warned against the excessive speed and ease with which new rights were being created through soft law instruments^7 giving rise to a disturbing ‘inflation of rights’^8 The process of legalizing new human rights must be governed by proper reflection, methodological rigour, precision regarding their content, and the participation of the relevant stakeholders.[15] Therefore, the quality of the norm-creation process is a precondition for ensuring its future effectiveness and implementation by avoiding a ‘legal jungle’ of inconsistent norms and divergent interpretations.[16] [17] [18] [19] [20] [21] Ultimately, Alston was proposing a process of ‘quality control’/1 to eliminate, to the extent possible, mere rhetoric and proclamations of wishful thinking.42

Another distinctive feature of soft law is the conflation of law and politics.43 Although international law itself is a highly political process,44 some scholars argue that soft law instruments are sometimes extremely contaminated by political considerations. This situation can lead to the perception of soft law norms as political tools rather than legal instruments, thus affecting their very legal nature. During the 1960s and 1970s, the newly independent countries that emerged from the process of decolonization conceived international law, in particular the UN General Assembly resolutions, as a powerful tool for transforming asymmetric power relations between states. Rene-Jean Dupuy has referred to these soft law norms as a ‘droit de finalite’,45 a set of norms aimed at establishing a new political and economic order at the international level.'[22] [23] [24] This has been eloquently expressed by Professor Carrillo Salcedo:

although their legal value is doubtful, many UN General Assembly resolutions are instruments aimed at promoting changes in the international legal system. Especially if they are adopted by a majority of states, they question existing international law, and send a clear message as to the aspirations of the majority of the international community.'7

As we will see, this is one of the most relevant characteristics of the UNDRIP, since it encapsulates the profound aspirations of the world’s indigenous peoples, thus gaining significant political and moral force. This, in fact, is the source of the considerable legitimacy of this soft law document, ‘rather than its claimed international legal character’.'8 And, as Claire Charters has very rightly stated, ‘the greater the perception of the Declaration on the Rights of Indigenous Peoples’ legitimacy, the greater the likelihood that states will give effect to its provisions’,[25] [26] [27] [28] irrespective of its legal status.

So far, we have analysed the emergence of soft law as a well-established category in contemporary international law, its potential to generate new rules of law, and certain related difficulties. Section 4 will comprise a reflection on the role played by soft law in the progressive recognition of indigenous peoples’ human rights.

  • [1] A. Boyle and C. Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007): 49.
  • [2] 26 While the editors of this volume refer to two main functions of soft law (norm-filling and norm-creating function), I think that the second of these functions can be further divided into the crystallizingand the prospective functions.
  • [3] C. Joyner, ‘UN General Assembly Resolutions and International Law: Rethinking theContemporary Dynamics of Norm-Creation’, California Western International Law Journal vol. 11(1981): 470.
  • [4] A very illuminating analysis of the concept of performativity, from a legal anthropological angle, asapplied to the multifaceted processes around the UNDRIP can be found in I. Bellier, ‘La Performativitede la Declaration des droits de peoples autochtones’, Cultures-Kairos: revue d’anthropologie des pratiques corporelles et des arts vivants no. 4 (2014), .
  • [5] For a reflection on the role that non-state actors play in contemporary international lawsee: Participants in the International Legal System: Multiple Perspectives on Non-state Actors inInternational Law, ed. J. d’Asprement (Abingdon: Routledge, 2011). See also: Non-state ActorDynamics in International Law: From Law-Takers to Law-Makers, ed. M. Noortmann and C. Ryngaert(Farnham: Ashgate, 2010).
  • [6] A. D’Amato, ‘International Soft Law, Hard Law, and Coherence’, Northwestern Public LawResearch Paper, no. 08-01 (2008): 1-31.
  • [7] D. Shelton, ‘Commentary and Conclusions’, in Commitment and Compliance: The Role of Nonbinding Norms in the International Legal System, ed. D. Shelton (Oxford: Oxford University Press, 2000): 449.
  • [8] 32 See the Introduction to this volume.
  • [9] P Weil, ‘Vers une normativite relative en Droit International’, Revue generate de droit international public vol. 86 (1982): 6-9.
  • [10] Weil (1982): 9.
  • [11] A. Pellet, ‘Le Bon Droit et l’ivraie: plaidoyer pour l’ivraie (remarques sur quelques problemes demethode en droit international du developpement)’, in Le Droit despeuples a disposer d’eux memes: meth-odes cTanalyse du Droit International. Melanges offerts a Charles Chaumont (Paris: Pedone, 1984): 488.
  • [12] 36 U. Fastenrath, ‘Relative Normativity in International Law’, European Journal of InternationalLaw vol. 4 (1993): 306.
  • [13] P. Alston, ‘Conjuring up New Human Rights: A Proposal for Quality Control’, American Journalof International Law vol. 78 (1984): 607.
  • [14] S. M. Helmons, ‘Considerations finales’, in Droits de Lhomme et droit au developpement, ed. S. M.Helmons (Bruxelles: Bruylant, 1989): 88.
  • [15] M. Flory, ‘Introduction generale’, in Droits de Phomme et droit au developpement, ed. M. Flory,
  • [16] A. Mahiou, and J. R. Henry (Paris: CNRS, 1984): 13.
  • [17] 'о Weil (1982): 6-7. 'i Alston (1984): 618.
  • [18] R. Ida, ‘Formation des normes internationals dans un monde en mutation: critique de la notionde Soft Law’, in Le Droit international au service de la paix, de la justice et du developpement: MelangesMichel Virally (Paris: Pedone, 1991): 334.
  • [19] J. Donelly, ‘In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development’,California Western International Law Journal vol. 15 (1985): 477.
  • [20] " Makau Mutua has referred to a ‘symbiotic’ relation between international law, human rights,and politics, M. Mutua, ‘Politics and Human Rights: An Essential Symbiosis’, in The Role of Law inInternational Politics, ed. M. Byers (Oxford: Oxford University Press, 2000): 149-75.
  • [21] R. J. Dupuy, ‘Droit declaratoire et droit programmatoire: de la coutume sauvage a la soft law inLThlaboration du droit international public (Paris: Pedone, 1975): 133.
  • [22] The most relevant instrument was the Declaration on the Establishment of a New InternationalEconomic Order, UN Doc. UNGA Resolution 3201 (S-VI), 1 May 1974.
  • [23] J. A. Carrillo Salcedo, Curso de derecho internacional publico (Madrid: Tecnos, 1991): 132.
  • [24] S. Allen, ‘The UN Declaration on the Rights of Indigenous Peoples and the Limits of theInternational Legal Project’, in Reflections on the UN Declaration on the Rights of Indigenous Peoples, ed.S. Allen and A. Xanthaki (Oxford: Hart Publishing, 2011): 225.
  • [25] C. Charters, ‘The Legitimacy of the UN Declaration on the Rights of Indigenous Peoples’, inCharters and Stavenhagen (2009): 280.
  • [26] As one of the key players in the process of adoption of the UNDRIP has underlined, ‘there wasmore or less general agreement on all sides that the UN Working Group on Indigenous Populationsshould in the first instance produce a declaration, eventually to be adopted by the UN GeneralAssembly. The possibility of a convention was also mentioned, but there seemed to be general agreement that this kind of instrument would emerge further down the road, possibly inspired by thedeclaration’, E. I. Daes, ‘The UN Declaration on the Rights of Indigenous Peoples: Background andAppraisal’, in Allen and Xanthaki (2011): 22.
  • [27] Twenty-seven states ratified this convention. Since the adoption of ILO Convention 169,Convention 107 is no longer open for ratification. However, it is still in force in eighteen countries thathave not yet ratified Convention 169.
  • [28] 52 A comprehensive analysis of this convention can be found in, L. Rodrfguez-Pinero, IndigenousPeoples, Post-colonialism and International Law: The ILO Regime (1919—1989) (Oxford: OxfordUniversity Press, 2005).
 
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