3.3.2. Soft law

The fora in which treaty law is developed are in general highly bureaucratised and subject to much diplomatic formality. Often it can be slow and expensive at best, and practically impossible at worst, to conclude treaties in such fora.[1] Once made, treaty law is also (by design) difficult to avoid when circumstances change.[2]

On the other hand the degree of “legalisation” of customary international law is often lower than desirable for purposes of certainty, and its content is more difficult to control, only being susceptible to conclusive determination by a judgment of the International Court of Justice.

Soft law can overcome many of the shortcomings of both these types of hard law.[3] The difference between soft law and hard law is akin to the difference between guiding principles and binding rules. Whereas hard law is consummated through diplomacy, soft law is developed through the exercise of “soft power,” which is characterised by more horizontal power relationships in which consensus can be built, and by the exchange of information rather than the use of threats and rewards.[4]

Soft law is cheaper and easier to establish than hard law, and offers greater scope for the participation of international actors other than states.[5] The flexible and adaptive nature of soft law is also an attraction, since for the private sector voluntary codes of conduct and private arbitration are a “softer touch” than black-letter regulation and national court systems, and for states soft law leaves them more room for “cheating,” and is thus less restrictive of their sovereignty.[6]

Three of the principal forms of soft law are resolutions and declarations of international bodies, codes and model laws, and standards. These will briefly be examined in turn.

3.3.2.1. Resolutions

Resolutions and declarations of intergovernmental meetings such as the General Assembly of the UN and WSIS are by nature not binding in nature. However they are regarded as a form of soft law, used to guide the behaviour of states both internationally and domestically. For example, General Assembly resolutions can be used to establish state practice and opinio juris as a precondition of the recognition of new customary international law,[7] are authoritative on questions within the General Assembly’s competence such as the interpretation of the UN Charter,[8] and can be used as a guide to the interpretation of municipal law.[9]

Pre-eminent in its impact amongst all declarations of the General Assembly, and perhaps amongst all instruments of soft law of any kind, is the Universal Declaration on Human Rights, proclaimed in 1948.[10] Although not binding, the Declaration strongly influenced the first two major treaties on human rights that followed, the International Covenant on Civil and Political Rights,[11] and the International Covenant on Economic, Social and Cultural Rights.[12]

Similar resolutions and declarations are also regularly made by NGOs, such as the International Law Association (ILA) and the Institut de Droit International/Institute of International Law (IIL).[13] The accession of international actors to such documents constitutes them as forms of soft law,[14] which much like resolutions of the General Assembly, can have a similar influence upon the later formation of opinio juris and the development of treaty law. Thus the United Nations’ International Law Commission has acknowledged that these private bodies have “had a considerable effect on the development of international law.”[15]

3.3.2.2. Codes

A code in soft law may take a number of forms. It may simply be a draft treaty; that is, a document that, if it were eventually signed and ratified, would become an ordinary treaty, but in respect of which “the law has not yet been sufficiently developed in the practice of States” for that to occur.[16] The progressive development of international law in this manner is one of the objects of the International Law Commission, which was established by the General Assembly of the UN in 1947 with this as one of its two objects.

Secondly, a code may be a codification of existing law, which was the second object with which the International Law Commission was formed. Codification is “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.”[17] Naturally, the signature and ratification of such a code by states would effect its promotion to hard law and supplant the underlying customary international rules for those states.

Third, a code may be in the form of a recommendation (or a “code of conduct,” “guideline,” etc), which is conceptually much like a resolution, but in a more legalised form similar to that of a treaty. A body may conclude a recommendation rather than a treaty because a treaty is beyond its competence, as in the case of an NGO or the General Assembly of the UN,[18] or because the subject matter of the recommendation is too far in advance of the actual practice of states, as is commonly the case with recommendations of the ILO and WIPO. A good example of this is WIPO’s Joint Recommendation Concerning Provisions on the Protection of Marks, and Other Industrial Property Rights in Signs, on the Internet.[19]

The European Commission can issue non-binding recommendations to member states, in place of its hard law regulations or directives.[20] The EU Commission also issues other soft law instruments to its member states and other EU organs that are not explicitly provided for in the EU treaties, including guidelines and communications.[21]

Fourth, a code may be a model law; this is a somewhat stronger form of a recommendation in that it is intended for direct adoption or incorporation by states into domestic law, with a view to harmonising national legislation. One of the most active intergovernmental bodies engaged in drafting codes of this nature today is UNCITRAL, whose 1996 Model Law on Electronic Commerce[22] formed the basis of Australia’s Electronic Transactions Act 2001 (Cth). Its Model Law on International Commercial Arbitration has also been received into a number of public and private legal systems, including the law of Canada.[23]

UNIDROIT, the International Institute for the Unification of Private Law,[24] is another intergovernmental organisation involved in drafting models laws, as well as other forms of hard and soft law including its codification of contract law, the UNIDROIT Principles of International Commercial Contracts.[25]

Of the four types of codes examined, three of them—draft treaties, recommendations and model laws—offer a template for multi-stakeholder Internet governance, in that while non-state actors are not precluded from drafting them, they are readily able to be received into hard law, whether that be by treaty or by custom. This is not simply a hypothetical observation. For example, the International Commercial Terms (or “Incoterms”) are a code drafted by the International Chamber of Commerce that is almost universally incorporated into transnational commercial contracts, to such an extent that it has arguably begun to evolve into customary international law.[26]

3.3.2.3. Standards

Standards are much like codes in the “recommendation” sense, but may be distinguished from these in that they fall within the standards development sphere of governance, rather than the sphere of public policy governance; in other words, standards are usually documents of technical specification, that do not explicitly (but may implicitly) engage issues of public policy.

The development of international standards is consequently seen as a form of “low politics”; that is, a realm of politics that does not strike at the core security concerns of states.[27] States are therefore more ready to delegate the development of standards to bodies that include non-state members, such as the ISO and ITU, than they would be willing to so delegate matters of “high politics” such as trade or defence policy.

Although treated here as a species of soft law, international standards can also be found in hard law, such as the Metric Convention Treaty,[28] and in customary international law, such as those standards promulgated by specialised agencies such as the ICAO and IMO.[29]

However the majority of international standards—de facto standards as opposed to the de jure standards of hard law[30]—are soft law because of their non-binding nature. This is the category into which Internet standards fall, as whilst it is convenient that all countries in the world use the same DNS root servers, it has never been suggested that China would be in breach of international law for establishing its own servers in competition to those of the official root.[31]

There is no uniform mechanism, analogous to ratification, by which a state is required to adopt an international standard that is not contained in a treaty. It may incorporate the standard by reference in domestic legislation or policy, but equally the state may have no involvement in a country’s adoption of a standard at all, its adoption being purely left to market forces. Neither is there any legal distinction between the adoption of a standard promulgated by a public standards body such as the Codex Alimentarius[32] or the International Organisation of Legal Metrology,[33] and that of an NGO such as IETF or the W3C.

For example, Standards Australia which serves as the peak standards body for Australia is non-governmental, although it receives government funding. As at 2006 there were 6850 published Australian standards, about 2400 of which were referenced in legislation or delegated legislation by Australian governments.[34] ITU standards are also referenced directly in Commonwealth regulations such as the Radiocommunictions Regulations 1993 (Cth). Internet standards of the IETF and W3C are not explicitly specified in any Australian legislation, but have been recognised at an executive level.[35]

Notes

[1]

Negotiations towards a new protocol to the UN Framework Convention on Climate Change, and the stalled Dohor Development Round of WTO talks, provide two contemporary examples.

[2]

Cutler, A C, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003), 23

[3]

Strictly, this section describes what is tautologically described as “non-legal” soft law. “Legal” soft law can in fact include treaties, albeit treaties that are so vaguely worded that they impose no discernible obligations on their signatories: Ferguson, Yale H & Mansbach, Richard W, Between Celebration and Despair: Constructive Suggestions for Future International Theory (1991), 851.

[4]

Slaughter, Annie-Marie, Governing the Global Economy through Government Networks (2000)

[5]

Cutler, A C, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003), 23

[6]

Cutler, A C, Private International Regimes and Interfirm Cooperation (2002), 35

[7]

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Reports 14

[8]

Case Concerning East Timor (Portugal v Australia) [1995] ICJ Reports 90

[9]

They would naturally be less persuasive than a treaty that Australia had actually ratified: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

[10]

General Assembly of the United Nations, Universal Declaration of Human Rights (1948)

[11]

International Covenant on Civil and Political Rights, 16 Dec 1966, 1980 ATS No 23 (entry into force for Australia (except Article 41) 23 Mar 1976)

[12]

International Covenant on Economic, Social and Cultural Rights, 16 Dec 1966, 1976 ATS No 5 (entry into force for Australia 10 Mar 1976)

[13]

See http://www.idi-iil.org/, not to be confused with the International Law Institute, an unrelated American educational institution; see http://www.ili.org/.

[14]

D’Amato, Anthony & Engel, Kirsten, International Environmental Law Anthology (1996), 55–60

[15]

International Law Commission, Introduction—International Law Commission (2006)

[16]

International Law Commission, Introduction—International Law Commission (2006)

[17]

International Law Commission, Introduction—International Law Commission (2006)

[18]

Detter, Ingrid, The International Legal Order (1994), 218–219.

[19]

WIPO, Joint Recommendation Concerning the Protection of Marks and Other Industrial Property Rights in Signs on the Internet (2001)

[20]

Directives are slightly softer than regulations, in that they prescribe a minimum standard that a member state’s laws must adhere to, without dictating their form, and may contain provisions from which a state is permitted to “opt out.”

[21]

Various examples can be accessed at http://europa.eu.int/information_society/topics/telecoms/regulatory/maindocs/comgreen/index_en.htm.

[22]

UNCITRAL, UNCITRAL Model Law on Electronic Commerce (1996)

[23]

Cutler, A C, Canada and the Private International Trade Law Regime (1992), which contains a review of the central role of the private sector in the unification of trade law in Canada.

[24]

See http://www.unidroit.org/.

[25]

UNIDROIT, UNIDROIT Principles of International Commercial Contracts (2004)

[26]

Rowe, Michael C, The Contribution of the ICC to the Development of International Trade Law (1982); but compare van Houtte, Hans, The Law of International Trade (1995) , 151.

[27]

Arend, Anthony C, Legal Rules and International Society (1999), 123.

[28]

Convention Concerning the Creation of an International Office of Weights and Measures, 20 May 1875, 1947 ATS No 22 (entry into force 20 Dec 1875) (Metric Convention)

[29]

These have the force of customary law because the standards in question, such as the IMO’s International Code of Signals, can be considered binding even on states that are not members of the IMO, due to their importance to international air and maritime safety: IMO, International Code of Signals (2003).

[30]

Crocker, D, Making Standards the IETF Way (1993)

[31]

Geist, Michael, China and the Break-Up of the Net (2006)

[32]

See http://www.codexalimentarius.net/.

[33]

See http://www.oiml.org/.

[34]

Productivity Commission, Standard Setting and Laboratory Accreditation (2006), 38

[35]

For example in the Australian Government Web Publishing Guide at http://webpublishing.agimo.gov.au/.