Which Future for the Scholarly Concept of Soft International Law? Editors’ Introductory Remarks

2012 ◽  
Vol 25 (2) ◽  
pp. 309-312 ◽  
Author(s):  
JEAN D'ASPREMONT ◽  
TANJA AALBERTS
Keyword(s):  
International Law ◽  
Public Authority ◽  
Soft Law ◽  
Legal Scholarship ◽  
Binary Nature ◽  
Hard Law ◽  
Deja Vu ◽  
The One ◽  
Déjà Vu

Engaging with a mundane topic like the softness of international law may certainly look surprising to the readership of a journal known for its avowed and constant quest for an intellectually and conceptually rigorous ‘off-Broadway’ scholarship. Why would a journal that tries to establish itself as a leading alternative voice in the field replay a comedy so often staged in mainstream scholarship? It is with the full awareness of such an anticipated feeling of déjà vu that the editors of the Leiden Journal of International Law have decided to open the ensuing pages to an oft-debated topic with the ambition of evaluating the possibility of transcending the traditional pitched battle between opponents and advocates of soft law. It is well known that, after the juvenile success of the concept1 and its embrace by a great number of international scholars, soft law became the object of severe criticisms, resulting in a chasm in the international legal scholarship. Indeed, the debate about soft law came to literally split authors into two camps, firmly pitted against one another. On the one hand, there are the advocates of the notion for whom the binary nature of law is incapable of explaining the complexity of the international exercise of public authority in a pluralized world2 or who see soft law as an instrument of (programming of the) development of hard law.3 These apostles of the notion of soft law are opposed by those who see the notion as redundant because it turns into either hard law or not law at all,4 it is self-serving for the profession,5 it is dangerously deformalizing our instruments of law ascertainment,6 or it is weakening the general authority of law.7 The fierce character of that confrontation originates in soft law's being intrinsically intertwined with one's core and inner understanding of (international) law, thereby making these discrepancies seem irreconcilable.

Soft Law and Other Forms of International Public Authority – The View from Discourse Theory: A Reply to Jaye Ellis

2012 ◽  
Vol 25 (2) ◽  
pp. 373-378
Author(s):  
MATTHIAS GOLDMANN
Keyword(s):  
International Law ◽  
Discourse Theory ◽  
Soft Law ◽  
Invisible College ◽  
Traditional Concept ◽  
Legal Scholarship ◽  
Hans Kelsen ◽  
State Consent ◽  
The One ◽  
Legal Sociology

When the editors of this journal asked me to write a comment on Jaye Ellis's paper, I was immediately fascinated by the prospect of engaging in a rigorous debate, perhaps one as controversial as that between Hans Kelsen and Eugen Ehrlich on legal scholarship and legal sociology about 100 years ago – although I am unable to reach the brilliance of those thinkers, and probably also their level of polemics.1 Now that I have read Jaye's paper, my expectations have somewhat changed. I realize that Jaye and I agree on many important points – points that would have brought large parts of the ‘invisible college’ up in arms a few decades ago. In particular, we agree that legal scholarship should find ways of dealing with the multiplicity of soft-law instruments that look like law because they consist of sometimes quite precise rules; that function like law because they effectively guide the behaviour of states, international organizations, and private entities; and that are therefore not adequately described as ethical, political, or moral rules. We also agree that the traditional concept of international law, which considers state consent as the one and only source of legitimacy, has come under stress since the advent of global governance, particularly because other actors like international bureaucracies or non-state entities play increasingly important, indispensable roles.

scholarly journals “ATOMIC LAW” OR “NUCLEAR LAW”? AN ACADEMIC DISCUSSION REVISITED

2018 ◽  
Vol 5 (3) ◽  
pp. 135-151
Author(s):  
J. Handrlica
Keyword(s):  
Ionizing Radiation ◽  
International Law ◽  
Nuclear Energy ◽  
Popular Literature ◽  
Atomic Energy ◽  
Soft Law ◽  
Legal Scholarship ◽  
National Legislation ◽  
Legal Norms ◽  
Energy Law

The terms “atomic law” and “nuclear law” are regularly being (to a certain part as synonyms) used in both scientific and popular literature to refer to a body of legal norms, governing peaceful uses of nuclear energy and ionizing radiation, as provided by sources of international law (“international atomic law,” or “international nuclear law”), national legislation and a complex body of unbinding norms (soft law). Further, several other variations of these terms are also regularly used (such as “atomic energy law,” “nuclear energy law,” “international nuclear law,” “law of the atomic/nuclear energy,” etc.). This contribution aims to identify the origins of this terminological labyrinth and to deal with the perception of these terms in the legal scholarship. Further, this contribution deals with the recent perception of these terms in the legal science of major States, using nuclear energy for peaceful purposes. This article aims to clarify the existing terminology, which is to large extent being used in the literature without an appropriate explanation. The author pleads for a consequent use of the term “nuclear law” (droit nucléaire, yadernoe pravo, Nuklearrecht, derecho nuclear, diritto nucleare) and presents arguments for such conclusion.

scholarly journals Overcoming the hard law/soft law dichotomy in times of (financial) crises

2012 ◽  
Vol 1 (1) ◽  
pp. 8-14 ◽  
Author(s):  
Rolf Weber
Keyword(s):  
Financial Markets ◽  
Financial Crises ◽  
Dispute Settlement ◽  
Soft Law ◽  
Legal Doctrine ◽  
Organizational Issues ◽  
Hard Law ◽  
Multilateral Agreements ◽  
Recent Financial Crisis ◽  
The One

Traditional legal doctrine calls for hard law to regulate markets. Nevertheless, in financial markets, soft law has a long tradition, not at least due to the lack of multilateral agreements in this field. On the one hand, the recent financial crisis has shown that soft law does not suffice to avoid detrimental developments; on the other hand, a straight call for hard law would not be able to manage the recognized regulatory weaknesses. Therefore, emphasis should be put on the possibilities of combining hard law and soft law; specific areas allowing realizing such kind of “combination” are organizational issues, transparency requirements, and dispute settlement mechanisms.

Money laundering

2016 ◽  
Vol 19 (4) ◽  
pp. 346-375 ◽  
Author(s):  
Emmanuel Ebikake
Keyword(s):  
International Law ◽  
Money Laundering ◽  
Legal Positivism ◽  
Soft Law ◽  
Content Type ◽  
Advantages And Disadvantages ◽  
Hard Law ◽  
The Law ◽  
Law Making

Purpose The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC). Design/methodology/approach This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area. Findings Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically. Research limitations/implications The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study. Practical implications The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law. Social implications The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law. Originality/value The research perspective to the study of ML is theoretical and focuses on the nature of the law.

scholarly journals Déjà vu and the Timequake: Beyond Postmodernism

2014 ◽  
Vol 7 (2) ◽  
Author(s):  
Federico Giordano
Keyword(s):  
Point Of View ◽  
Formal Structure ◽  
The Political ◽  
A Posteriori ◽  
Final Phase ◽  
Aesthetic Movement ◽  
Deja Vu ◽  
The One ◽  
Déjà Vu ◽  
Theoretical Reflection

The aim of this article is to verify how Tony Scott proved to be, throughout his career, a director particularly sensitive to social shifts and to artistic and cultural modifications. He adjusted the content and formal structure of his films according to what seemed to be the most “modern” or suitable way of depicting contemporaneity. When observed in these terms and a posteriori, in his last films Tony Scott can be seen as a director who tried to go beyond postmodernism, addressing himself towards the new movements of post-postmodernism, as with metamodernism, pseudomodernism or digimodernism. Among Scott’s films, the one which seems to be particularly relevant in this sense is Déjà Vu (2006), where the latest artistic point of view of the director is quite well summarized. It is a film that puts into metaphor some of the political problems of our epoch and, above all, through a reflection on time embraces some of the features of postmodernism. In doing so, it surpasses postmodernism, opening towards the new aesthetic movement of post-postmodernism. In such a kind of filmic construction, which entails a theoretical reflection on modernity through images, Scott adopts and confirms the post-postmodernist inclination of the final phase of his body of work.

scholarly journals O Papel do Institut du Droit International e da International Law Association na Codificação das normas do Direito Internacional de Águas: entre hard law e soft law

2018 ◽  
Vol 1 (39) ◽  
Author(s):  
Gildo Manuel Espada
Keyword(s):  
International Law ◽  
International Organizations ◽  
Soft Law ◽  
Water Law ◽  
Hard Law ◽  
The Status ◽  
International Water Law ◽  
International Water ◽  
Droit International ◽  
Vital Resource

RESUMOA importância da água como recurso vital para a humanidade e as disputas sobre o acesso a este recurso são cada vez mais intensas. Aliado a estes factos, acontece que grande parte dos recursos de água do planeta faz parte de recursos hídricos partilhados entre dois ou mais Estados. Este facto fez com que algumas organizações internacionais, mormente o Institut du Droit International e a International Law Association se esforçassem em codificar o Direito Internacional de Águas. Entretanto, apesar de todo o esforço feito, as normas aprovadas não obtiveram o estatuto de hard law, sendo aplicadas na qualidade de normas de soft law. Discutimos aqui a validade e importância de tais normas, no âmbito da Codificação do Direito de Águas. Para tal, fazemos um levantamento bibliográfico que visa o resgate histórico do surgimento do Direito de Águas, e trazemos importantes conceitos aplicáveis à temática. PALAVRAS-CHAVECodificação. Direito. Águas. ABSTRACTThe importance of water as a vital resource for humanity and the disputes over access to this resource are increasingly intense. Together with these facts, a large part of the planet´s water resources are shared between two or more States. These facts have led to a number of international organizations, including the Institut de Droit International and the International Law Association to embark in efforts to codify the International water Law.  However, despite all the efforts made, the rules adopted did not obtain the status of hard law, being only accepted and applied as soft law. We discuss here the validity and importance of such standards, within the framework of the codification of water law. To do this, we make a bibliographical research that aims to review the emergence of Water Law historically, and to bring important concepts applicable to this thematic. KEYWORDSCodification. Law. Water.

scholarly journals Soft Law in Jus in Bello and Jus ad Bellum: What Lessons for Business and Human Rights?

AJIL Unbound ◽  
2020 ◽  
Vol 114 ◽  
pp. 174-178
Author(s):  
Alonso Gurmendi Dunkelberg
Keyword(s):  
Human Rights ◽  
The Other ◽  
Soft Law ◽  
Recent Experience ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Direct Participation ◽  
Business And Human Rights ◽  
Hard Law ◽  
The One

This contribution, rather than focusing on the debates within the Business and Human Rights (BHR) domain itself, offers a comparison between soft law regulation in the BHR context, on the one hand, and in the jus in bello (JIB) and jus ad bellum (JAB) contexts, on the other. Specifically, this contribution looks at the recent experience in JIB and JAB wherein states and other actors have tried to address the indeterminacy of treaty law provisions through soft law proposals that advance a disputed interpretation of hard law, producing legal uncertainty and scholarly debate. I use as examples the 2009 Interpretive Guidance on Direct Participation in Hostilities and the 2012 Bethlehem Principles as a way to extract lessons for the codifying momentum underway in BHR.

We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law

2012 ◽  
Vol 25 (2) ◽  
pp. 335-368 ◽  
Author(s):  
MATTHIAS GOLDMANN
Keyword(s):  
International Law ◽  
Public Authority ◽  
Legal Positivism ◽  
Soft Law ◽  
International Treaties ◽  
The Public ◽  
Legal Studies ◽  
Functional Equivalent ◽  
Public Character ◽  
The Concept Of Law

AbstractThis article surveys contemporary approaches to international soft law, such as various types of legal positivism, legal realism, critical legal studies, and global administrative law. It scrutinizes to what extent the concept of law endorsed by each of these approaches is able to tackle two challenges caused by the spread of soft law as a means of governance: (1) the fact that international soft law is today often the functional equivalent of international treaties and (2) the contestations of the legitimacy of soft law. It concludes that discursive approaches that stress the public character of international law appear very promising, because they link broad concepts of law with considerations of legitimacy. However, since international institutions today exercise public authority not only through soft law or hard law, but also through non-legal instruments like information, the article argues that one ultimately needs to conceptually dissociate the concept of international law from the concept of public authority.

scholarly journals Private International Law in Latin America: from Hard to Soft Law

2011 ◽  
Vol 1 (11) ◽  
Author(s):  
Nuria González Martín
Keyword(s):  
Latin America ◽  
International Law ◽  
Soft Law ◽  
Private International Law ◽  
Hard Law

La codificación en el continente americano es exitosa, y ello es debido a dos factores principales: primero, hay una especialización temática en sus Conferencias Interamericanas Especializadas de Derecho Internacional Privado (CIDIP); el segundo factor es el hecho de que dos importantes etapas se han llevado a cabo, la primera etapa en la que la unificación se logró mediante convenciones (CIDIP I-V), y la segunda etapa en donde la unificación se ha llevado a efecto dejando atrás los instrumentos convencionales y se han elegido otras técnicas de regulación, por ejemplo, el uso de Leyes Modelos (CIDIP VI y VII). Este artículo trata sobre la transición del hard law a soft law.

scholarly journals Soft Law in EU Competition Law and its Judicial Reception in Member States: A Theoretical Perspective

2015 ◽  
Vol 16 (2) ◽  
pp. 223-260
Author(s):  
Zlatina Georgieva
Keyword(s):  
International Law ◽  
Theoretical Perspective ◽  
Soft Law ◽  
The European Union ◽  
Judicial Interpretation ◽  
National Courts ◽  
Hard Law ◽  
Eu Competition Law ◽  
Explicit Reference ◽  
Judicial Discourse

This work draws from accounts on the nature and legal effects of soft law instruments in EU and international law with the ultimate aim to construct a theoretical framework for recognition of EU competition soft law—guidelines, communications, notices, and the like—in the judicial discourse of national courts of the European Union. “Recognition” is used to encompass instances in which the national judiciary either explicitly interprets—that is, agrees or disagrees with—the content of competition soft instruments, or treats their substance in a roundabout, implicit way—without explicit reference to soft law in the judgment proper. This second option is called “the persuaded judiciary scenario.” Importantly, a foundational assumption of the current work is that courts do not transform soft law into hard law when subjecting the former to judicial interpretation/recognition.2

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