156
conventions, there are many other examples of international soft law such as the
resolutions and declarations frequently adopted by the United Nations General
Assembly, and most “action plans,” “statements of intent,” “codes of conduct,”
and “guidelines.”
While soft law obligations are frequently criticized for have “no teeth,” they
have the advantages of:
(a) providing States greater flexibility in fulfilling commitments;
(b) being more readily agreed to by States; and
(c) creating goals to which governments may be held accountable to by domestic political actors.
For example, it is unlikely that the USA would have accepted hard law
requirements under the Paris Agreement because of opposition within the legislative branch of its national government. However, the US commitments had,
and have, clear political consequences.
Many international obligations are rooted in established or “customary” practices, referred to as customary international law. The International Law
Commission states that customary international law is “unwritten law deriving from
practice accepted as law. It remains an important source of public international law”
(ILC 2018). How customary law is understood and accepted differs between States.
Customary law is frequently referred to by courts, jurists, legal scholars, diplomats,
and governments as a source of international law. International treaties often seek to
codify customary law to bring about formal, clear, and broad agreement about
such law.
Both hard and soft international law are frequently (but not always) expressed in
international treaties. The 1980 Vienna Convention on the Law of Treaties defines a
treaty as “an international agreement concluded between States in written form and
governed by international law.”
Treaties that can be considered hard law typically include provisions on how a
State consents to be bound by the agreement; territorial scope of and reservations to
the agreement; how it enters into force; monitoring compliance and consequences
of non-compliance; allowing other States to join the agreement; and revoking or
modifying (amending) the agreement.
Many international agreements and declarations include non-binding (i.e., soft
law) normative statements and goals (that is desirable behaviors, practices, outcomes and objectives) which, over time, can become customary law, and, ultimately,
hard law either domestically or internationally.
Note that it is customary to refer to independent countries as “Nation States” or
simply “States.” The use of the word “State” in this Chapter should not be confused
with sub-national regions in certain countries like Australia, Brazil, Mexico, and the
USA. States are considered “sovereign” in that their governing body of the State has
supreme, or ultimate, authority for political decision-making within the territory of
the State. There exists a diverse array of relationships between the governing bodies
of States and the people who are citizens of the State, some democratic in nature,
some not.
A. Belinskij et al.
conventions, there are many other examples of international soft law such as the
resolutions and declarations frequently adopted by the United Nations General
Assembly, and most “action plans,” “statements of intent,” “codes of conduct,”
and “guidelines.”
While soft law obligations are frequently criticized for have “no teeth,” they
have the advantages of:
(a) providing States greater flexibility in fulfilling commitments;
(b) being more readily agreed to by States; and
(c) creating goals to which governments may be held accountable to by domestic political actors.
For example, it is unlikely that the USA would have accepted hard law
requirements under the Paris Agreement because of opposition within the legislative branch of its national government. However, the US commitments had,
and have, clear political consequences.
Many international obligations are rooted in established or “customary” practices, referred to as customary international law. The International Law
Commission states that customary international law is “unwritten law deriving from
practice accepted as law. It remains an important source of public international law”
(ILC 2018). How customary law is understood and accepted differs between States.
Customary law is frequently referred to by courts, jurists, legal scholars, diplomats,
and governments as a source of international law. International treaties often seek to
codify customary law to bring about formal, clear, and broad agreement about
such law.
Both hard and soft international law are frequently (but not always) expressed in
international treaties. The 1980 Vienna Convention on the Law of Treaties defines a
treaty as “an international agreement concluded between States in written form and
governed by international law.”
Treaties that can be considered hard law typically include provisions on how a
State consents to be bound by the agreement; territorial scope of and reservations to
the agreement; how it enters into force; monitoring compliance and consequences
of non-compliance; allowing other States to join the agreement; and revoking or
modifying (amending) the agreement.
Many international agreements and declarations include non-binding (i.e., soft
law) normative statements and goals (that is desirable behaviors, practices, outcomes and objectives) which, over time, can become customary law, and, ultimately,
hard law either domestically or internationally.
Note that it is customary to refer to independent countries as “Nation States” or
simply “States.” The use of the word “State” in this Chapter should not be confused
with sub-national regions in certain countries like Australia, Brazil, Mexico, and the
USA. States are considered “sovereign” in that their governing body of the State has
supreme, or ultimate, authority for political decision-making within the territory of
the State. There exists a diverse array of relationships between the governing bodies
of States and the people who are citizens of the State, some democratic in nature,
some not.
A. Belinskij et al.