Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-23T19:28:18.207Z Has data issue: false hasContentIssue false
  • English
  • Français

Some Reflections on the Relationship of Treaties and Soft Law

Published online by Cambridge University Press:  17 January 2008

A. E. Boyle
Get access Rights & Permissions [Opens in a new window]

Extract

My starting point for this discussion of the relationship between treaties and soft law is the observation that the subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty. The role of soft law as an element in international law-making is now widely appreciated, and its influence throughout international law is evident. Within that law-making process the relationships between treaty and custom, or between soft law and custom are also well understood. The relationship between treaties and soft law is less often explored, but it is no less important, and has great practical relevance to the work of international organisations.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 48 , Issue 4 , October 1999 , pp. 901 - 913
Copyright
Copyright © British Institute of International and Comparative Law 1999

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See generally Baxter, “International Law in Her Infinite Variety” (1980) 29 I.C.L.Q. 549Google Scholar; Chinkin, , “The Challenge of Soft Law: Development and Change in International Law” (1989) 38 I.C.L.Q. 850Google Scholar; Dupuy, , “Soft Law and the International Law of the Environment” (1991) 12 Michigan J.I.L. 420Google Scholar; Sztucki, , “Reflections on International Soft Law”, in de Lege (1992), 365Google Scholar; Elias, and Lim, , “General Principles of Law, Soft Law and the Identification of International Law” (1997) 28 Neths. Ybk. IL 3.Google Scholar

2. See Schachter, , “The Twilight Existence of Non-Binding International Agreements” (1997) 71 A.J.I.L. 296.Google Scholar

3. (1994) I.C.J. Rep. 112.Google Scholar

4. For example an agreement between a state and a multinational company: see Anglo-Iranian Oil Case (1952) I.C.J. Rep. 93.Google Scholar

5. Infra, n.36.

6. Infra, n.40.

7. See Gardiner, , “Revising the Law of Carriage by Air: Mechanisms in Treaties and Contract” (1998) 47 I.C.L.Q. 278.Google Scholar

8. Articles 17 and 23 of the Statute of the Commission do refer expressly to the conclusion of conventions, but other possibilities are left open.

9. The Commission considered the eventual form of its draft articles at its 50th Session in 1998 but deferred a decision on whether to propose a convention or a declaration. It was noted that the dispute settlement provisions in part three of the draft could not be included in a declaration: see Rept. of the I.L.C. (1998), Ch.7, para.224.Google Scholar

10. (1986) I.C.J. Rep. 14.Google Scholar

11. (1996) I.C.J. Rep. 241.Google Scholar

12. (1997) I.C.J. Rep. 7.Google Scholar

13. See Boyle, A. E. and Freestone, D. (eds), International Law and Sustainable Development: Past Achievements and Future Prospects (Oxford, 1999), Ch.1Google Scholar; Sands, (ed.), Greening International Law (London, 1993), Chs.1 and 3.Google Scholar

14. IAEA/INFCIRC/321 (1985).Google Scholar

15. UNEP/GC14/25 (1987).Google Scholar

16. UNEP/WG.120/3 (1985).Google Scholar

17. 1990 Kuwait Protocol for the Protection of the Marine Environment Against Marine Pollution from Land-Gased Sources.Google Scholar

18. See Western Sahara Advisory Opinion (1975) I.C.J. Rep. 12Google Scholar: Nicaragua Case (1986) I.C.J. Rep. 14.Google Scholar

19. Decision II/5, UNEP/OzL.Pro/WG.3/2/2, Annex III (1990).Google Scholar

20. Supra, n.6.

21. UNEP/WG.122/3.

22. Article 4.

23. See Contini, P. and Sand, P. H., “Methods to Expedite Environmental Protection: International Ecostandards”, (1972) 66 A.J.I.L. 37.Google Scholar

24. The preamble to the Convention on Nuclear Safety recognises that internationally formulated safety guidelines “can provide guidance on contemporary means of achieving a high level of safety.”

25. IAEA Safety Series No.110: The Safely of Nuclear Installations (Vienna, 1993)Google Scholar; IAEA Safety Series No.111–F: The Principles of Radioactive Waste Management (Vienna, 1995)Google Scholar; IAEA Safety Series No.120: Radiation Protection and the Safely of Radiation Sources (Vienna), 1996)Google Scholar; IAEA GC (XXXIV)/939: Code of Practice on the Transboundary Movement of Nuclear Waste (1990).Google Scholar

26. E.g. the NUSS codes, IAEA GC (XXXII)/489 (1988).Google Scholar

27. 1982 UN Convention on the Law of Sea, Articles 207–212.Google Scholar

28. (1980) 29 I.C.L.Q. 549.Google Scholar

29. Especially Article 4(1) and (2). The United States' interpretation of these articles was that “there is nothing in any of the language which constitutes a commitment to any specific level of emissions at any time ….” The parties determined at their first meeting in 1995 that the commitments were inadequate and they agreed to commence negotiation of the much more specific commitments now contained in the 1997 Kyoto Protocol.

30. Article 4(7).

31. (1969) I.C.J. Rep. 3.Google Scholar

32. Dworkin, R., Taking Rights Seriously (Oxford, 1977).Google Scholar This argument is developed by Sands, , in, Lang, W. (ed.) Sustainable Development and International Law (London, 1995), Ch.5.Google Scholar

33. See e.g. the International Court's reliance on the principle of sustainable development in the Gabcikovo-Nagymaros Case, on which see Lowe, , in, Boyle, A. E. and Freestone, D. (eds) International Law and Sustainable Development (Oxford, 1999), Ch.2Google Scholar, and Boyle, , “Gabcikovo-Nagymaros Case: New Wine in Old Bottles” (1997) 8 Yearbook of International Environmental Law 13.CrossRefGoogle Scholar

34. See the debate between Sands, and Mann, in Lang, W. (ed.) Sustainable Development and International Law (London, 1995), 53–74.Google Scholar

35. The so-called “Berlin mandate”: Decision 1/CP.1, in Report of the Conference of the Parties on its 1st Session, UN Doc.FCCC/CP/1995/7/Add.1.

36. See Part XV, on which see Boyle, , “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction” (1997) 46 I.C.L.Q. 37Google Scholar; Churchill, R., “Dispute Settlement in the Law of the Sea and Alternatives to it”, in, Evans, M. (ed.) Remedies in International Law: The Institutional Dilemma (Oxford, 1998), 85Google Scholar; Merrills, J., International Dispute Settlement (3rd ed.Cambridge, 1999), Ch.8Google Scholar; Churchill, R. and Lowe, A. V., The Law of the Sea (3rd ed., Manchester, 1999), Ch.19Google Scholar; Sohn, L., Settlement of Law of the Sea Disputes (1995) 10 Int. J. of Marine and Coastal Law 205CrossRefGoogle Scholar; Adede, A., The System for Settlement of Disputes Under the UNCLOS (Dordrecht, 1987)Google Scholar; Brown, E. D., “Dispute Settlement and the Law of the Sea: The UN Convention Regime” (1997) 21 Marine Policy 17.Google Scholar

37. Article 235(1).

38. Articles 216–18, 220.

39. See Adede, , in, Lang, W., (ed.) Sustainable Development and International Law (London, 1995), Ch.8Google Scholar; Birnie, , “Legal Techniques of Settling Disputes: The Soft Settlement Approach”, in, Butler, W. E. (ed.) Perestroika and International Law (Dordrecht, 1990), 177Google Scholar; Gehring, , “International Environmental Regimes: Dynamic Sectoral Legal Systems” (1990) 1 Yearbook of International Environmental Law, 35Google Scholar; Handl, , “Controlling Implementation of and Compliance with International Environmental Commitments: The Rocky Road From Rio”, (1994) 5 Colorado JIELP 327Google Scholar; Kiss, , “Compliance with International and European Environmental Obligations” (1996) Hague Yearbook of International Law 45Google Scholar; Lang, , “Compliance Control in International Environmental Law” (1996) 56 ZaöRV 685.Google Scholar

40. Article 8, and Annex IV, as adopted at Copenhagen in 1992. The process is described in UNEP, Report of the Implementation Committee for the Montreal Protocol, 20th Meeting, UNEP/OzL.Pro/Imp/Com/20/4, paras.24–33, and Yoshida, , “Soft Enforcement of Treaties: The Montreal Non-Compliance Procedure and the Functions of the Internal International Institutions” (1999) 10 Colorado JIELP 95.Google Scholar

41. 1950 European Convention on Human Rights, Article 28 provided that the Commission on Human Rights “shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention.”

42. See Decision 1997/2, in, UNECE, Report of the 15th Session of the Executive Body (1997)Google Scholar, Annex III and Szell, , “The Development of Multilateral Mechanisms for Monitoring Compliance”, in, Lang, W. (ed.), Sustainable Development and International Law (London, 1995), 97.Google Scholar

43. See UNEP, Report of the 7th Meeting of the Parties to the Montreal Protocol, Decisions VII/15–19 (Poland, Bulgaria, Belarus, Russia, Ukraine) UNEP/OzL.Pro.7/12 (1995)Google Scholar; idem, Report of the 8th Meeting, Decisions VIII/22–25 (Latvia, Lithuania, Czech Republic, Russia) UNEP/OzL.Pro.8/12 (1996); idem, Report of the 9th Meeting, Decision IX/29–32 (Latvia, Lithuania, Russia, Czech Republic) UNEP/OzL.Pro.9/12 (1997). For the most recent position see Report of the Implementation Committee for the Montreal Protocol, 20th Meeting, UNTEP/OzL.Pro/ImpCom/20/4 (1998).Google Scholar See generally Werksman, , “Compliance and Transition: Russia's Non-Compliance Tests the Ozone Regime” (1996) 36 ZaöRV 750Google Scholar;, Victor, , The Early Operation and Effectiveness of the Montreal Protocol's Non-compliance Procedure (Vienna, 1996)Google Scholar; Benedick, R., Ozone Diplomacy (London, 1998 edition), Ch.17Google Scholar; Yoshida, O., “Soft Enforcement of Treaties; The Montreal Protocol's Noncompliance Procedures” (1999) 10 Colorado JIELP 95.Google Scholar

44. The problems are discussed in Werksman, , Responding to Non-Compliance Under the Climate Change Regime (OECD, 1998)Google Scholaridem, in, Cameron, , Werksman, , Roderick, (eds). Improving Compliance with International Environmental Law, 85ff.Google Scholar

45. 1992 UNFCC Article 13Google Scholar; 1997 Kyoto Protocol Article 16. For details of the process see 6th Report of the Ad Hoc Working Croup on Article 13 (1998) UN Doc.FCCC/AG13/1998/2.Google Scholar

46. Koskenniemi, , “Breach of Treaty or Non-Compliance?” (1992) 3 Yearbook of International Environmental Law 123.CrossRefGoogle Scholar

47. See for example the Nuclear Weapons Advisory Opinion (1996) I.C.J. Rep. 241Google Scholar, in which some 40 states made written or oral submissions to the court. In contentious cases involving the construction of a multilateral convention all parties to the convention have a right to intervene in the proceedings, and the construction so given will be equally binding on luch states: Statute of the I.C.J., Article 66. It should be noted, however, that an allegation of non-compliance is not necessarily a question of construction.