Soft Law Instruments Research Articles

“Journey Beyond Tomorrow”: Navigating Regulation of AI-Powered Cyber Operations in the Realm of the Use of Force

INTRODUCTION. Artificial intelligence (AI) can significantly strengthen cybersecurity systems of States, as well as serve an additional technical means for malicious actions in the so-called cyberspace. Recognizing this, States have started investing in defensive and offensive autonomous cyber capabilities to protect their interests and deter potential adversaries; this has further fuelled the increase in inter-State cyber operations as nations seek to gain a competitive edge in the digital realm. This paper focuses not only on the problems of applying existing norms of international law to situations of malicious use of AI by States, but also on the process of these norms’ interpretation by different actors and, through this interpretation, crystallization of a common (or at least converging) understanding of their applicability. More specifically, this paper examines the path to understanding of how the norms on the use of force apply to AI-enabled cyber operations.MATERIALS AND METHODS. The present study is based on the works of both Russian and foreign specialists on the law of international information security, as well as analysis of documents and materials of groups of governmental experts under the auspices of the United Nations and the positions of States. In addition to general scientific methods (analysis, synthesis, induction and deduction), the theory of transnational legal process is applied to this study, which considers ongoing discussions of relevant issues on various platforms, and, more generally, the interaction of various actors regarding the formation of a pool of rules for responsible use of AI by States through interaction, interpretation and internalization of the interpreted legal ideas and practices into the domestic legal systems.RESEARCH RESULTS. The international efforts to develop a universal set of rules for responsible State behaviour in cyberspace have enjoyed rather modest success. The analysed history of cyber-related debate suggests that the AI-focused discussion for the foreseeable future will progress outside the area of developing a comprehensive treaty framework. Instead, the legal landscape of AI applications will appear to emerge from soft law instruments and private sector initiatives, which would lead to fragmentation of interpretation and State practice.DISCUSSION AND CONCLUSIONS. The complication of inter-State cyber operations by AI technology raises additional questions about the application of international law, in particular its norms on the use of force, to AI-powered cyber incidents. The deployment of lethal autonomous weapons systems and commitment of AI-powered cyber operations could potentially lead to another ‒ this time, AI ‒ arms race, as nations seek to develop and acquire these systems to maintain strategic parity. This could destabilize global security and increase the risk of conflict escalation. This and other political and ethical considerations argue in favor of limiting the discretion of States in the use of AI. However, to date, the incentives for NATO States, China and Russia to agree on an international binding instrument limiting the use of AI for malicious purposes appear illusory. One could argue that corresponding discussions on AI will probably take place outside of the development of an international treaty, given the historical debate surrounding the application of international law in cyberspace and the development of norms governing responsible States behaviour in the use of information and communication technologies. Further analysis of this development, thus, will require examining how transnational norms, such as those emerging from soft law instruments, customary practices, and private sector initiatives, will shape the international legal landscape of the AI application.

Ensuring Pharmaceutical Accountability for Human Rights and Access to Medicines: The Dutch Duty of Care Standard Applied to Pharmaceutical Companies

Abstract To effectively protect the human right to health, the global accountability gap for pharmaceutical companies regarding access to medicines must be addressed. Pharmaceutical companies have no formal obligations under human rights law; however, they do have responsibilities, and some companies (directly or indirectly) undermine the right to health and equitable access to medicines. We propose that pharmaceutical companies can be held accountable for human rights interferences by means of a provision in Dutch tort law containing an ‘unwritten duty of care’, an interpretation which is supported by the international human rights framework and recent Dutch jurisprudence. We propose a concrete example of how this duty could be applied in Dutch courts, which have previously held a private corporation accountable for contributing to dangerous climate change in the Milieudefensie et al. v Royal Dutch Shell case. To establish whether this duty could be applied to pharmaceutical companies, we use the court’s reasoning in Milieudefensie to assess the existence of a global consensus on the need for a pharmaceutical duty of care. We argue that human rights norms and soft law instruments that pharmaceutical companies themselves have endorsed prove that there is a growing consensus regarding the damage associated with excessively priced medicines, and an urgent need to establish a framework for holding pharmaceutical companies accountable for ensuring equitable access to medicines through legal measures.

Enhancing anti-corruption via investment arbitration: from red flags to due diligence

Abstract As the number of corruption allegations in investor–State disputes (ISDS) grows, tribunals must balance their duty to resolve disputes and to render enforceable awards. Given the difficulty of proving corruption, arbitrators increasingly consider red flags to detect it, but still struggle with drawing consequences for corrupt conduct that would serve as an effective deterrent. Our empirical analysis of 92 ISDS cases that involved allegations of corruption reveals that over a quarter of arbitral decisions already utilize a red flags approach, which helps tribunals assess corruption risks and provide circumstantial evidence. This article proposes a novel list of red flags based on the empirical analysis, domestic and international law sources as well as soft law instruments. It then frames a corresponding anti-corruption due diligence mechanism, which can minimize the risks of corruption occurring, bring more predictability to ISDS and disincentivize frivolous allegations of corruption.

Abortion from an International Perspective after the Dobbs case

The American Supreme Court of Justice recently overturned the precedents that legalized abortion in the Dobbs v. Jackson Women’s Health Organization case. This article analyzes whether this decision is consistent with the current status of abortion as established in International Human Rights Law (IHRL), according to its classical sources (treaties and customary law). Since no treaty includes a right to abortion and there is no consistent practice among states to legalize abortion, various soft law instruments are discussed to clarify the consensus on this issue. These instruments include the agreements reached at the World Population Conferences, the Fourth World Conference on Women of 1995, and the pronouncements and case law of human rights mechanisms (treaty monitoring bodies and regional courts). This analysis shows that the arguments and conclusions in the Dobbs case are consistent with what states have agreed to internationally on the matter.

Preferential Personal Income Tax Regimes in the European Union: A New Form of Permitted (Harmful) Tax Competition?

The aim of this contribution is to examine whether the current normative framework of the European Union is adequately equipped to deal with the potentially harmful effects of the so-called preferential personal income tax regimes (PPITRs). For that purpose, after providing an overview of these special tax measures within the EU landscape, the article analyses whether these regimes could be considered a new form of harmful tax competition under the international soft law instruments developed by the OECD and European Union. It is highlighted that these instruments at present do not cover personal income tax rules, although the effects of PPITRs can be as harmful as those of preferential corporate income tax regimes. With regard to other EU instruments (State aid rules, fundamental freedoms and the fundamental right to equality), it is concluded that they are not adequate to tackle in a systematic way the potential harmful effects of special tax regimes targeting individuals. To remedy this hiatus, a proposal is made to extend the mandate of the EU Code of Conduct and adapt the currently applicable criteria under the Code to enable it to capture harmful PPITRs.

Peculiarities of achieving the sustainable development goals in interaction wit private international law

Regrettably, the triple global catastrophe of pollution, natural loss, and climate change coexists with the global socioeconomic problems of poverty and inequality. Temperatures are increasing at an unprecedented rate; biodiversity is disappearing swiftly, with potentially dire consequences for all of us; and pollution is becoming a global issue, killing millions of people annually and continuing to worsen. There is no normative vacuum in which the 169 targets and 17 Sustainable Development Goals (SDGs) were born or placed. They are based on international law and designed to be compliant with the commitments made in a number of soft law instruments and international agreements. There is, of course, a connection between international law and the SDGs. What kind of relationship do they have? How much and how may the SDGs and international law complement one another to improve systems integration .In an effort to leverage the relationship for global sustainability, this paper investigates these issues from two angles. First, do the SDGs play a key role in bringing together different international organizations to work toward the ultimate goal of sustainable development? Most international institutions function in relative isolation and may pursue conflicting interests since they are engrossed in their respective mandates and goals. Goal-setting, as a governance technique to prioritize, motivate, and provide direction, has been proposed by some observers as a way to improve the overall performance of current institutions in fostering sustainable development. Insofar as providing consistency to an otherwise divergent and even inconsistent set of institutional arrangements, how effective are the SDGs likely to be? Second, is it conceivable that international law will aid in the integrated implementation of the SDGs? The SDGs themselves have come under fire for lacking consistency, even though they pride themselves on being “integrated and indivisible. This is a problem since the Millennium Development Goals (MDGs) experience has demonstrated that achieving these governance goals on their own could have unforeseen consequences. While certain MDG targets were achieved, the MDGs’ spirit was not. Then, despite its fragmented structure, how and to what degree may international law integrate the SDGs and aims and aid in the achievement of long-term sustainable development.

Business and human rights as Swedish foreign policy: The soft implementation of international regulatory norms

AbstractThis article aims to explain why national governments choose soft policies in the domestication of international norms even when those norms may explicitly call for harder measures. The article achieves this aim by exploring domestic adoption of National Action Plans (NAPs) for implementing the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs are an international soft law instrument that calls for a mix of voluntary and mandatory policies to promote human rights due diligence, and NAPs are soft domestic policy instruments that lack the bindingness of mandatory due diligence legislation now found in several states. Most governments with NAPs have adopted them specifically as foreign policies, treating them not as regulatory initiatives but as tools for enhancing national reputations. Using a range of primary and secondary sources, the article constructs a case study of Sweden to explain why governments might opt for softer implementation of the UNGPs in the form of NAPs. It draws several conclusions: (1) governments may emulate the approach to domesticating international regulatory norms that is promoted by international organisations; (2) support from domestic actors motivates norm implementation, and the policy style selected is likely to reflect power constellations in the state and, under consensus‐based governance systems, the lowest common denominator of actor preferences; and (3) path dependency following institutional venue selection influences the type of policy developed and adopted. These findings shed new light on the reasons why international policy norms are implemented in ‘softer’ ways than perhaps intended by their architects.

Corporate governance codes: A controversial efficiency?

The pursuit of good governance by companies confronts a fundamental challenge: defining what constitutes “good governance”. Existing corporate governance codes and their implementation documents fall short of offering a clear answer to this crucial question. Despite the establishment of a reference framework years ago, the focus has shifted from defining the objectives of good governance to a consensus on the means of achieving these objectives. Unfortunately, this consensus often absolves stakeholders from providing detailed explanations. Achieving effective good governance necessitates a shift in focus towards the underlying goals of governance structures. Two potential approaches emerge in this context. While many companies rely on codes without explicitly outlining their objectives, there is a compelling case for urging or mandating them to articulate the purposes of the governance methods they employ in their reports. This level of specificity has the potential to enhance the reflective qualities of the transparency process, fostering a more comprehensive understanding of the governance landscape. Beyond merely discussing the objectives of corporate governance, the pursuit of good governance necessitates the implementation of instruments whose efficacy transcends reliance solely on market discipline. The aim is not to undermine the imperatives of transparency and justification. Instead, the intention is to recognize that these elements, while essential, do not independently ensure the effectiveness of soft law instruments, such as governance codes. Nowadays, it is crucial to assess the extent to which traditional corporate governance codes respond to the needs of companies in the era of digitalization and sustainability. Therefore, conducting a critical analysis of the existing corporate governance codes will contribute in shedding light on the gaps of these instruments to come up with recommendations for improvements. Aims and objectives: This article will focus on the following areas: Defining the role and purpose of corporate governance codes in enhancing corporate performance and accountability and discussing the challenges and limitations of corporate governance codes, including compliance issues and enforcement challenges. Presenting empirical evidence on the impact of corporate governance codes on corporate behavior and analyzing, through the principle of comply or explain, whether code adherence leads to improved corporate governance practices and financial performance. Discussing emerging trends in corporate governance and offering recommendations for improving the effectiveness of corporate governance codes.

Climate Litigation in Indonesia: Lessons from the Royal Dutch Shell Case

This article compares the concept of unlawful act in the Indonesian and Dutch Civil Codes, with specific attention to the notorious decision of the Milieudefensie et al v. Royal Dutch Shell Case. Therein, the Dutch Court applied unwritten law under Article 6:612 of the Dutch Civil Code, calling for reduction in carbon emissions through policy changes by the Shell group. The use of unwritten law allowed for a comprehensive assessment of legal bases, including international soft law instruments, such as the United Nations Guiding Principles on Business and Human Rights. Inspired by such a decision, this article aims to unveil the readiness of Article 1365 of the Indonesian Civil Code in entertaining a similar case. It compares the approach taken in the Milieudefensie et al. v. Royal Dutch Shell Case with pertinent decisions by the Indonesian court concerning the implementation of Article 1365 of the Indonesian Civil Code. Furthermore, it focuses on two prongs of civil liability that are necessary for establishment: 1) unwritten law; and 2) causality. By doing so, this article aims to contribute to the evolving realm of climate litigation, specifically within the framework of civil law.

The precautionary approach and challenges posed by mega‐constellations

AbstractThe advent and continuing deployment of mega‐constellations has brought new challenges, particularly increased risk of collision, proliferation of space debris, reduced numbers of launch windows and obstruction to astronomical observation. The precautionary approach, which is becoming part of customary international law, is instrumental in addressing these challenges. Although precautionary measures are incorporated in international treaties and soft law instruments regarding outer space, a full application of the precautionary approach is necessary to balance the need of innovation and the sustainable use of outer space. To this end, operators of mega‐constellations must keep the approach in mind and comply with its substantive obligations once it is triggered, including suspension of activities, risk assessment, mitigation and prevention, and notification and information. The possibility of new deployment of mega‐constellation being frozen at some point makes the equitable distribution of satellite orbits and radio frequencies a pressing issue.

Preserving the Rule of Law Through Transnational Soft Law: The Cooperation and Verification Mechanism

This contribution reflects on the role of soft law instruments to address the rule of law crisis, a topic of high relevance in the context of this special issue. Indeed, the EU-15 enlargement towards the ‘periphery’ proceeded also through soft law instruments, perceived to allow greater flexibility in monitoring. Soft law – or rules of conduct that have no legally binding force but may have legal and practical effects (Snyder 1993, 64) have been considered inappropriate by the literature in dealing with the regulation of values in EU law. However, a closer look at the career of soft law issued for Romania under the Cooperation and Verification Mechanism appears to suggest a more nuanced picture. Whilst time is not yet ripe for a full assessment of the effectiveness of the tools, there are signs that show that the reports issued by the Commission within the Cooperation and Verification Mechanism process have had an influence in fostering change. They did so by catalysing litigation and, as a result, informing and fuelling an institutional dialogue on the rule of law at the transnational level.

CISG in the digital world digital economy: data, products, and assets

Abstract This article focuses on the question of whether the United Nations Convention on Contracts for the International sale of Goods (CISG) applies to the new digital world: a world where exchange or a combination of computer programs, licenses, software, and data as well as services are part of the new digital economy. These are new phenomena that are not regulated at all, or under-regulated, in domestic legal systems where courts and scholars struggle to accommodate these new digital realities in the already existent rules and traditional contract categories and to find appropriate solutions for mixed contracts for goods and services by an expanded interpretation of the traditional rules. By contrast, a recent tendency is observed at an international level either to review the already existent uniform law instruments in order to see whether they can cover the digital economy, or to create new soft law instruments. The CISG is not immune to the ‘danger’ that soft law instruments recently drafted to cover some transactions of the digital economy might create the wrong impression that the CISG, a hard law instrument, cannot cover them.

Tackling the environmental cost of digital technology: Some reflections on a soft law instrument on sustainability in contracts

Abstract This article explores the convergence of digital innovation and its negative consequences (such as e-waste) with modern sustainability goals by looking at contracts. Specifically, it discusses the use of sustainability contract clauses (SCCs) in business contracts as an expression of corporate social responsibility and of self-regulation. It suggests that there is potential in promoting the use of sustainable obligations in the electronics supply chain (the generator of the fastest growing waste source). As little guidance exists on sustainable obligations, this article discusses the possibility of establishing a new soft law instrument that could tackle some of the described legal challenges in the current use of SCCs. In doing so, it reflects on the possible issues of the proposed instrument.

Korporativno upravljanje privrednim društvima u vlasništvu države

This paper analyses the rules on corporate governance which are provided for by the Law on Management of State-Owned Companies. At the beginning, the complexity of regulating this issue is indicated as well as the existence of soft law instruments at the international level which influenced the Serbian legislator. Then, the specifics of the new legal regime regarding state-owned company’s bodies are presented in the central part of the paper. First, special rules which refer to the state representatives in the general meeting of shareholders are presented, followed by those which refer to supervisory board members and finally those which refer to the directors. Bearing in mind that the provisions of the Law on Public Enterprises remain relevant for certain companies, the solutions regarding corporate governance provided by that Law are presented as well. At the end of the paper, it is assessed that the legal regime has certainly been approved but certain shortcomings are noted as well.

Article: A Change in the Law or A Guideline from the EU VAT Committee? Evaluating Soft Law Instruments for Clarifying EU VAT Law Through the Lens of Legitimacy

In addition to amendments to the European Union (EU) value added tax (VAT) statutory law and the case law of the Court of Justice of the European Union (CJEU), various types of soft law have increasingly been used in recent years to elucidate the essence of EU VAT provisions. These include the guidelines issued by the EU VAT Committee which is a body explicitly enshrined in the EU VAT Directive. This article is aimed at discussing the significance of the EU VAT Committee guidelines from a legitimacy perspective. It will be demonstrated that they do not correspond to the ideals of inclusive governance that have long been advocated at the Union level and thus generally show deficits in input legitimacy. Some recent examples relating to the amended special scheme for small- and medium-sized enterprises (SMEs) will be utilized to argue that the EU VAT Committee guidelines can only be considered to have a certain level of output legitimacy. They can thus be useful as a legal opinion that national authorities and courts should take into account when interpreting and applying EU VAT law. However, they must therefore comply with the mandate of the EU legislature enshrined in Article 398 paragraph 4 of the EU VAT Directive. Value added tax (VAT), EU VAT law, EU VAT Committee, soft law, legitimacy, rule of law, interpretation of law, SME scheme, Amending Directive (EU) 2020/285

Promoting Food Security through the Multilateral Trading System: Assessing the WTO’s Efforts, Identifying its Gaps, and Exploring the Way Forward

The Covid-19 pandemic and the conflict in Ukraine have unveiled the vulnerabilities of global food systems, resulting in food shortages, price spikes, and worsening food security. The World Trade Organization can play a key role in addressing these challenges through its developed body of rules. Its regulatory framework on agriculture, however, is affected by shortcomings and asymmetries that pose challenges to the long-term achievement of secure and sustainable food systems. Despite extensive negotiations among countries in the Committee on Agriculture ahead of the 12th Ministerial Conference, few concrete proposals were made to reform trade rules on agriculture. Additionally, the 12th Ministerial Conference itself failed to produce satisfactory results with respect to food security. The ongoing stalemate in agricultural negotiations since the outbreak of the Covid-19 pandemic indicates the need for a new, holistic approach to address food security at the World Trade Organization, particularly in preparation for the upcoming 13th Ministerial Conference in 2024. This approach should be informed by equity considerations and grounded in the notion of sustainable development and the human right to food. While a comprehensive reform of the Agreement on Agriculture informed by this approach is the ultimate goal, it is unlikely to occur in the short- to medium-term due to disagreement among countries on how to reform the three pillars of the Agreement. Therefore, an incremental approach could be adopted by prioritising issues for which short- to medium-term reforms are more likely to garner consensus, such as sustainable agricultural production, and by employing soft law instruments. The latter favour a flexible approach and promote cooperation and trust among countries.

International Nuclear Security Law: The Use of ‘Soft Law’

Abstract International nuclear security law includes treaties such as the Convention on the Physical Protection of Nuclear Material and its amendment (A/CPPNM), as well as a series of soft law instruments, such as the International Atomic Energy Agency’s (IAEA) Nuclear Security Series (NSS). These treaties and law instruments function as guidelines providing policy direction and ensuring that the various nuclear facilities are properly protected. Traditionally, soft law has been typified by its flexibility and normativity. However, within the field of nuclear security law, nuclear security is mainly assessed using instruments that are properly implemented by relevant regulatory authorities or operators (in the case of soft law instruments), and regulatory bodies are given the authority to order operators to comply with mandatory instruction on the level of municipal law. This delegation of authority is necessitated by the potentially serious consequences of nuclear and radioactive material, as well as the associated facilities and activities. When the provisions of such instruments are transposed into municipal law, they somewhat function as hard laws despite having originated in international soft law. This is because nuclear security is a sensitive topic intimately related to national security. In conclusion, this unique combination of legally binding instruments and non-legally binding ones, which are often converted into legally binding documents as per municipal law in the case of Japan, enables robust control over nuclear security while also providing sufficient flexibility to ensure that a variety of nuclear facilities can fully adapt to the conditions required to protect these facilities.

ЭТИЧЕСКОЕ И ПРАВОВОЕ ИЗМЕРЕНИЕ ТЕХНОЛОГИЙ ИСКУССТВЕННОГО ИНТЕЛЛЕКТА: ИГРА ПО ПРАВИЛАМ И БЕЗ

Artificial intelligence (AI) is called the end-to-end, closing and most discussed technology of the 21st century. Along with issues of the effectiveness of technologies, ideas about a better life as a result of their implementation, there are pressing questions about how to regulate and manage them in terms of justice, the safety of society, its individual groups and future generations. Yet at the same time besides growth in the number of new Al-based products and their widespread use, there are issues of reliable AI, security and control of potential risks up for debates. In this regard, the beginning of the 2020s is marked with the search for optimal regulatory tools in the field of AI. Academic structures, universities and institutions for development, along with governments and business community in the broad sense, are key platforms for discussing the social implications of new technologies, as well as the tools and mechanisms for their regulation. The materials of such discussions were taken as the basis for this study - these are two panel discussions (2022 and 2023), which were held at Tomsk State University as part of the International Congress “Language, Culture and Technological Transits: New Facets of the Human”. The study was conducted using the focus group method. The list of participants for the panel discussions was formed in a similar way, so as, on the one hand, to preserve the interdisciplinary contour of the discussion due to the nature of AI technologies and, on the other hand, to provide a comparison of the two discussions and consisted of representatives of leading companies developing AI, researchers in the field of law, philosophy, ethics and sociology, academic structures represented by vice-rectors. Representatives of business and academia included participants in government councils and intergovernmental groups on AI development. Questions for discussion included the following blocks: co-production of technology and society in relation to AI, changing concepts of risk and benefit; issues of regulation of digital and AI technologies, ethical dilemmas in the AI era and ways to solve them; maintaining a balance of interests and building trust in the field of AI development. The dilemmas of “government - governance” of AI as well as options for social and business responses to the use of AI were considered. Based on the results of a qualitative analysis of the expert discussion, we can conclude that, under turbulence in the AI technology itself, ethics becomes the basis that provides an opportunity to dialogue and development of optimal norms and rules at this stage for all players involved. Moreover, variability and flexibility of these norms and rules are being observed. Ethics as an instrument of soft law comes forward with a self-regulation mechanism, which is evidence-based and which builds up public confidence and fosters the development of AI technologies. The authors declare no conflicts of interests.

Dynamic References To International Soft Law Agreements: Flexibility With Limits

The European Union relies increasingly on non-binding international agreements as a blueprint for its legislation on direct taxation. This implies converting a flexible soft law instrument into hard law that is subsequently difficult to amend due to the unanimity principle. A nascent trend to ensure that such Union legislation nevertheless stays in sync with future developments of the underlying soft law agreement are dynamic references to the latter. However, the scope for this approach is limited by the requirements of sufficient democratic legitimacy and legality of taxation, and respect for the institutional balance of the Union. Dynamic references to international soft law standards should therefore primarily be used as a source of interpretation or illustration for the concretization of already executable rules in the relevant EU legal act. They do not normally allow to incorporate also amendments and supplements of the original soft law agreement, unless additional safeguards exist that ensure compliance with the aforementioned Union law principles – at the expense of the desired flexibility, however. In this regard, the better approach would be the conferral of delegated powers upon the Commission to ensure a timely yet controlled alignment of the relevant Union tax legislation with new soft law standards. soft law, dynamic reference, democratic legitimacy, legality of taxation, institutional balance

The role of soft law instruments in framing and implementation of the European Neighbourhood Policy

The role of soft law instruments in framing and implementation of the European Neighbourhood Policy