5. Soft Law in International Law-Making

2014 ◽  
pp. 118-136 ◽  
Author(s):  
Alan Boyle
Keyword(s):  
International Law ◽  
Soft Law ◽  
Law Making

The Institutionalization of a Process

2016 ◽  
Vol 13 (2) ◽  
pp. 308-340
Author(s):  
Gloria Fernández Arribas
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
International Organization ◽  
Soft Law ◽  
Decision Making Process ◽  
Main Task ◽  
Kimberley Process ◽  
Law Making

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

9. Law-Making Processes

2020 ◽  
pp. 181-203
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
International Law ◽  
International Organizations ◽  
Soft Law ◽  
The Icj ◽  
General Principles Of Law ◽  
Law Making

Custom and treaties constitute the two most important formal sources of international law, that are also envisaged in Article 38 of the ICJ Statute. In addition, Article 38 refers to general principles of law recognized in domestic systems. This chapter examines these three formal sources of international law as well as some others, in particular unilateral acts of States and binding decisions of international organizations. In addition, it discusses equity and soft law and examines some mechanisms of identification and development of international law, such as jurisprudence, doctrine, and codification.

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.

To the question of the transfer of the «soft law» concept on the national legal systems level

2015 ◽  
Vol 3 (3) ◽  
pp. 112-116
Author(s):  
Александр Демин ◽  
Alyeksandr Dyemin
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Empirical Data ◽  
Turning Point ◽  
Soft Law ◽  
International Level ◽  
Legal Systems ◽  
Data Collation ◽  
Domestic Law ◽  
Law Making

Initially, the concept of «soft law», its development, the accumulation of empirical data collation and analysis were carried out as part of the science of international law. The turning point is that «soft law» issue is no more limited by international level. Of course, the «soft law» phenomenon has actually not been explored to the same extent at the level of domestic law systems, than as it has been in the international law. At the same time, it seems profitable to use the «soft law» concept in relation to those various instruments that have a domestic character, which are not formally part of the official source system of law, but which are important for law-making and law enforcement.

scholarly journals Some Reflections on the Relationship of Treaties and Soft Law

1999 ◽  
Vol 48 (4) ◽  
pp. 901-913 ◽  
Author(s):  
A. E. Boyle
Keyword(s):  
International Law ◽  
Soft Law ◽  
Practical Relevance ◽  
International Organisations ◽  
Starting Point ◽  
Relationship Of ◽  
The Relationship ◽  
Law Making

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.

5. Soft Law in International Law-Making

2018 ◽  
Author(s):  
Alan Boyle
Keyword(s):  
International Law ◽  
Customary Law ◽  
Soft Law ◽  
Alternative View ◽  
Regulatory Regime ◽  
Technical Standards ◽  
Hard Law ◽  
State Practice ◽  
Legal Character ◽  
Law Making

From a law-making perspective the term ’soft lawʼ is in most cases simply a convenient description for a variety of non-legally binding instruments used in contemporary international relations by States and international organizations. Soft law in this sense can be contrasted with hard law, which is always binding. Non-binding soft law instruments are not law per se, but may be evidence of existing law, or formative of the opinio juris or State practice that generates new customary law. They may additionally acquire binding legal character as elements of a treaty-based regulatory regime, or constitute a subsequent agreement between the parties regarding interpretation of a treaty or application of its provisions. Other non-binding soft-law instruments are significant mainly because they are the first step in a process eventually leading to conclusion of a multilateral treaty, or because they provide the detailed rules and technical standards required for the implementation of a treaty. An alternative view of soft law focuses on the contrast between ’rulesʼ, involving clear and reasonably specific commitments which are in this sense hard law, and ’normsʼ or ’principlesʼ, which, being more open-textured or general in their content and wording, can thus be seen as soft even when contained in a binding treaty. It is a fallacy to dismiss soft law because it does not readily fit a theory of what is ‘law’: properly understood, it can and does contribute to the corpus of international law-making.

Law-Making by Non-State Actors

2019 ◽  
Author(s):  
Timothy Masiko ◽  
Mary E. Footer
Keyword(s):  
International Law ◽  
Soft Law ◽  
General Function ◽  
Highly Qualified ◽  
International Court Of Justice ◽  
International Court ◽  
State Actors ◽  
The Law ◽  
International Conventions ◽  
Law Making

International law is a set of norms that covers the general procedures and institutions for the conduct of international relations. Its general function is to safeguard international peace, security, and justice in relations between states. As its name suggests, it is concerned with relationships between states, and that makes states the main actors or subjects of international law. As international law continues to evolve, however, the subjects of international law have broadened and changed. This has inevitably led to an evolution in the law-making process. Classically international rules could only be made by states, mainly by treaty or through international custom. More recently, the sources of law have expanded, as have the makers of international law. The classical sources of international law, stated in Article 38(1) of the Statute establishing the International Court of Justice (international conventions, international custom, general principles of law, and judicial decisions and teachings of highly qualified publicists), remain relevant, and new sources, principally ‘soft law,’ are gaining ground. In addition, non-state actors (NSAs) are becoming increasingly relevant, not just as subjects of international law but as participants in the law-making process. NSAs include international organizations, international and domestic judicial and quasi-judicial bodies, hybrid bodies, Civil Society, the private sector, and others. While previously and indeed currently in many spheres of international law international rules were only enforceable by and against states, it is increasingly common for NSAs to enjoy rights of audience before courts and tribunals, and also to participate in the law-making progress in various capacities. This has been through the creation of new customary international law, laying down new rules through the determination of disputes, the operation of soft law, and even the conclusion of treaties that bind states. The readings below start from a more general coverage of law-making to specific works about law-making by NSAs. They have been selected, as far as possible, to blend classical writings with current and recent research on the subject of law-making. Wherever possible, they include writings by practitioners in their relevant areas, such as judges and academics or legal counsel in and before judicial bodies. A note on terminology: many publications use the term “lawmaking” rather than “law-making”. Where in the original title of the publication the word “lawmaking” is used or else the words “law” and “making” appear disjunctively, it has been retained; otherwise, the word “law-making” is used.

Formation of Customary International Law and General Principles

2008 ◽  
Author(s):  
Pierre-Marie Dupuy
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Customary Law ◽  
Soft Law ◽  
International Protection ◽  
Technical Problems ◽  
Normative Concepts ◽  
The One ◽  
The Relationship ◽  
Law Making

The customary law status of a rule depends on whether the principle has been referred to, or put into operation, in a treaty, in a soft law instrument, in judicial or semi-judicial decisions, or in other expressions of state practice. This article starts with some preliminary observations on customary law-making in international environmental law, and then assesses the ‘banality’ of the customary law-making process in the field of the international protection of the environment – that is, the fact that this process is analogous to the one in general international law. It also reviews a series of theoretical and technical problems in proving the existence of customary environmental law, namely, the relationship between treaties and custom; the relationship between ‘soft law’ and custom; and the relationship between general principles, normative concepts, and custom. The article concludes by considering the problematic nature of the constantly ongoing law-making process in the absence of a legislator for environmental protection.

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