International Soft Law Research Articles

Curbing Supply-Chain Human Rights Violations Through Trade and Due Diligence. Possible WTO Concerns Raised by the EU Conflict Minerals Regulation

The recent adoption of the EU Regulation laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflictaffected and high-risk (CAHR) areas constitutes an important step to curb particularly heinous crimes connected to the so-called ‘conflict minerals’ supply chains. The EU measure is remarkable insofar it incorporates an international soft-law instrument, the Due Diligence Guidance for Responsible Supply Chain of Minerals from CAHR Areas, and makes it mandatory for EU importers. Importers are under a mandatory obligation to engage in supply chain due diligence to avoid dealing in conflict minerals, and thus regulating upstream entities. This contribution assesses the relation between such a regulatory strategy and provisions of WTO law. It assesses whether the EU bears responsibility for possible detrimental impact stemming from the incorporation of the OECD Guidance and from the delegation of certain regulatory tasks to economic operators. Subsequently, it evaluates the status under international law of the OECD Guidance, and discusses whether its status can justify possible detrimental impact stemming from the EU regime.

Structuring transnational interests: the second-order effects of soft law in the politics of global finance

ABSTRACTInternational soft law has become a hallmark of global economic governance: networks of official and private ‘governors’ create standards, best practices and norms. Research often frames these efforts as solutions to perceived problems arising from globalization. Yet the narrow focus on the rulemaking process – coordination, distributive implications and implementation – misses second-order political repercussions. Giving special attention to the interaction between international soft law and the political landscape of business advocacy, this article offers an alternative account of the relationship between transnational rules and powerful actors. We argue that transnational informal institutions are not only sites of cooperation that resolve the economic policy concerns of the day, but are also sources of policy feedback that can transform the political landscape. To illustrate the potential empirical traction of these arguments, we examine the critical case of the Basel Committee on Banking Supervision and the Institute of International Finance (IIF). The IIF went from being a struggling organization with no regulatory agenda or lobbying skills to the world's most influential financial industry advocate directly engaging transnational forums. We find that second-order effects of soft law were a primary cause of the IIF's transformation. Our study has major implications for research on global governance as we highlight the political ramifications and temporal effects of informal institutions for business representation.

Soft law as a condition for the development of trust in international arbitration

ABSTRACT: The present text is the transcription of the author’s inaugural speech at the XII International Arbitration Conference of Rio de Janeiro, on May 10th, 2016. The author’s goal is to illustrate how international arbitration has progressively incorporated a self-legitimacy sourced in the needs of a societas mercatorum who runs quicker than any State normativity. It is from that international arbitration selflegitimation image that the autor proposes to debate the different soft law instruments as being part of this non-State normativity, strengthening the international arbitration procedure as a tool of international commerce, and not a result of central authorities. Based on this analysis, the author addresses – and answer – the most recent criticism towards the IBA Guidelines, maybe one of the most important – and true metaphor – of international arbitration soft law.

The Institutionalization of a Process

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.

Measures of Non-Repetition in Transitional Justice: The Missing Link?

The international transitional justice soft law framework breaks the obligations of states to combat impunity and provide reparation into a number of discrete tasks, including truth-seeking/telling, accountability, and reparations for victims. The most amorphous of these tasks is ‘guarantees of non-repetition.’ While the basic idea is clear - whatever measures are needed to prevent a recurrence of the serious human rights violations or international crimes committed in the past - the content of this idea has been unduly narrowed over the years. In practice, it generally means vetting or restructuring of security forces, and measures to increase the independence and effectiveness of the formal judiciary. The chapter explores the possibility of expanding the view of what is meant, to encompass a more transformative non-repetition of the conditions likely to lead to renewed conflict. It looks at several attempts to do just that, through peace accords, truth commission recommendations or other means. It briefly considers the Philippines and Colombia as examples of how such an approach might work. It explores whether, given the risks of a broad “transformative” approach, a more fulsome view of measures of non-repetition could serve to both expand and appropriately limit the concept.

Treatment of Foreign National Prisoners in the Ethiopian Federal Prison

Although deprivation of liberty often to a certain degree forms an obstacle to the enjoyment of other rights too, this does not as such mean that authorities are permitted also to deny those rights to prisoners. Several international soft law instruments confirm this. Principle 5 of the United Nations Basic Principles for the Treatment of Prisoners (1990) states: ‘Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights and United Nations covenants’. Moreover, the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) affirms in Rule 57 that ‘the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation’. The principle that prisoners retain all rights apart from the right to liberty can also be found in several regional soft law instruments. For example, Rule 2 of the European Prison Rules 2006 states: ‘Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody’. More specific is Principle VIII of the recently approved Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008)8: ‘Persons deprived of liberty shall enjoy the same rights recognized to every other person by domestic law and international human rights law, except for those rights which exercise is temporarily limited or restricted by law and for reasons inherent to their condition as persons deprived of liberty’. And in the Kampala Declaration on Prison Conditions in Africa (1996) the second Recommendation on Prison Conditions declares ‘that prisoners should retain all rights which are not expressly taken away by the fact of their detention’. Furthermore, those regional instruments demand, in various formulations, that the suffering inherent in imprisonment shall not be aggravated by the regime in prison. Rule 5 of the European Prison Rules 2006 even specifies: ‘Life in prison shall approximate as closely as possible the positive aspects of life in the community’. In the case of FDRE government, the 1995 constitution guarantees that detained persons shall be treated with due respect to their dignity. Moreover, the federal prison Commission was established pursuant to Proclamation No. 365/2003, to implement judicial decisions and to undertake the functions of the custody, reformation and rehabilitation of prisoners as part of the contribution to crime prevention. Ethiopia also domesticated standards for the treatment of prisoners.

Arbitral Tribunal Power to Disqualify Unethical Counsel

In specific matters of conflicts of interest ethical issues in connection with the parties' legal representatives could occur in the course of arbitration proceedings. The purpose of this paper is to identify and investigate the current status of the arbitral tribunals and arbitral institutions power to sanction counsel’s misconduct in the event of conflicts of interest. Parties have a fundamental right to choose the counsel and in the same time the right to an independent and impartial tribunal, therefore the source of the arbitral tribunal power to disqualify a counsel is a hot topic. There are no express provisions granting arbitrators such power, only soft law instruments, but which have no binding effect as long as the parties do not agree on them. For these reasons, two renowned cases where international arbitral tribunals have dealt with the subject are examined. Developing “truly transnational” ethical rules and their implementation by the arbitral institutions might be a solution. Arbitral tribunals are establishing this issue on the basis of the undertaken and applied international soft law (professional guidelines) which gained credibility and popularity and also became accepted international standards in the arbitration field.

A Firm‐Driven Approach to Global Governance and Sustainability

This Article analyzes the emerging roles of multinational corporations in global governance, focusing on the unique challenges of environmental regulation. In response to the shortcomings of traditional state-centered regulation, MNCs increasingly participate in two alternate forms of rulemaking: (i) international soft law; and (ii) self-regulation through private rules and standards. To address concerns about the participation of MNCs in these public and private forms of rulemaking, this Article outlines a regulatory framework based on the concept of corporate-regulatory feedback loops, or CRFLs. CRFLs consist of feedback loops between MNCs, regulators, and other governmental entities that enhance the visibility, identification, and internalization of social costs and the potential collective gains of sustainability practices and policies. CRFLs preserve the firm- and industry-specific flexibility of voluntary corporate initiatives while facilitating the formalization and institutionalization of such initiatives into norms and legal rules. We apply the theoretical components of our model to the German Sustainability Code, a voluntary multi-stakeholder initiative that coordinates with the German government, and suggest various means to overcome implementation challenges that may arise in the establishment of other public-private regulatory regimes that incorporate CRFL principles.

Transboundary data protection and international business compliance

This paper assesses the effectiveness of the EU data protection reform for EU residents' privacy in the cloud. It starts off by examining the potential threats of forum shopping for Binding Corporate Rules (BCRs) and discusses the ongoing challenges for enforcing BCRs for processors in cloud services. It also covers the insufficient protection of EU data against foreign surveillance. It proposes ways of eliminating those threats by considering cloud services ‘risky activities’ for both controller and processor as per the Privacy Risk Assessment obligation present in the General Data Protection Regulation (GDPR). Offering a solution to the challenges so identified, the author refers to international soft law and the ongoing debate on its applicability to private enterprises, summarized within the UN ‘Protect, Respect and Remedy’ Framework. Comprehensive privacy-enhancing policies, rather than stricter data protections laws, are crucial to effective data protection in the EU in the age of global cloud computing. The shortcomings of the GDPR, in particular relating to foreign authorities accessing EU data, may be effectively resolved by a flexible combination of legal and extra-legal tools.

The Development of International Norms to Enhance Space Security Law in an Asymetric World

Space security is becoming an increasing important and challenging issue for the international space law. This paper discusses how, in lieu of hard international norms found in the form of treaties, custom, and adjudicatory decisions, soft international law norms are being developed. This is attributable to the emerging organization of space activities in which States have asymmetric interest. To cope with this law is evolving through the development of soft norms both through the international incidents methodology and through the development of political agreements.

An appraisal of United Nations and other money laundering and financing of terrorism counter‐measures

PurposeThe purpose of the paper was to examine the challenges inherent in harnessing the UN and other AML counter‐measures, paying particular attention to the United Nations Resolutions on countering financing of terrorism and why the UN Security Resolutions have not been easy to invoke. As regards other AML counter‐measures, the paper examined the legal status of soft law instruments, articulating the possible reasons why they are easy to implement.Design/methodology/approachThe paper was written by the analysis of UN and other AML counter‐measures – which were evaluated in the gaze of how they have been implemented across states. While states are under an obligation to implement UN AML counter‐measures such as international treaties and soft law instruments, private banks as non‐state actors have exploited some loopholes in the law to flaunt them. This has undermined the efficacy of global AML counter‐measures. Many banks have been fined for violating UN sanctions on countries like Iran and Sudan. These examples were utilized in appraising the current UN and other AML counter‐measures across states.FindingsThe findings of the paper were compelling in demonstrating that global anti‐money laundering laws are often emasculated by the fact that they are implemented in the realm of international law. International law manifests itself within independent member states' vested strategic self‐interests. In the event of conflicts, national self‐interests will prevail. But again, money laundering is an opportunistic crime because it generates both synergies and externalities and the response of individual states often depends on how it is affected by it. It is wrong to assume as doing things in the realm of international law is not as easy as it is presumed to be.Research limitations/implicationsIt would have been better to carry out interviews so as to corroborate secondary data sources used in writing this paper. But due to some constraints, this option was not possible. It would also have been better to undertake the analysis of data based on a large sample of countries rather than cherry picking. While implementing AML counter‐measures in the realm of international law is necessary to foster international co‐operation, there are still some loopholes that need to be paid more attention.Originality/valueThe paper was written, analysed and evaluated based on the most recent literature on implementation of UN and other AML counter‐measures across countries. It also utilized the recent cases involving violations of UN AML counter‐measures by banks on sanctioned countries such as Iran and Sudan.

The Norms of International Soft Law in the Legal System of the Russian Federation

The norms of international “soft law” (ISL) have explicitly gained a certain importance in the legal system of the Russian Federation. Although soft law does not have legal force, its norms have become widespread within the framework of domestic jurisdiction. The present article reflects the outcome of the holistic legal analysis of the impact of ISL as a regulatory instrument on different component parts of the domestic legal system, such as positive law, law-enforcement practice, legal theory, legal consciousness of non-state actors. A conclusion has been formulated about the development of a definite tendency that the international component part of the Russian legal system is not only limited to “the universally-recognized norms of international law and international treaties and agreements”, as it is stated in part 4 of article 15 of the Constitution of the Russian Federation. An increasingly important role is played by international norms of a non-legal nature. This appears outstanding in view of the peculiarities of “soft law”.

POSITIVE OBLIGATIONS AND THE INTERNATIONAL CRIMINAL TRIBUNALS’ LAW OF DETENTION: FUNDING FAMILY VISITS AND THE ICC PRESIDENCY'S NGUDJOLO DECISION

This article addresses the issue of whether the international criminal tribunals are under an obligation to fund family visits for indigent detainees. It examines the concept of positive obligations and its relation to the detention situation and describes the practice of funding family visits as it has developed at the International Criminal Court. It further analyses relevant developments in the Court’s case law. It argues that the Court is indeed obliged to fund family visits. In this regard, the mere recognition of a detainee’s right to family visits in the tribunals’ legal frameworks andin international soft-law penological standards can be said to inadequately reflect the particularities of international detention.

Eksperyment medyczny przeprowadzany na organizmie ludzkim – aspekty prawa międzynarodowego, europejskiego i krajowego

The article is designed to provide readers with a legal context of medical experimentation. Medical research involving humans needs careful regulation. Although international law, European law, and domestic law are usually described as separate sources of law, they are increasingly interdependent. Their interaction produces a layering effect of laws that address medical experimentation. The paper begins with an overview of the content of soft international law. In the next section, the author addresses the issue of hard law, i.e. the Geneva Conventions, provisions of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine is the subject of analysis in the third part of the paper. The next section discusses selected issues related to regulations of European Union law. At the national level, the Polish Constitution provides for a medical research principle. In order to provide deeper insight, the next part of the analysis is based on domestic criminal law. The final section discusses the role of the physician in medical research in light of the norm included in the 1996 Act on the professions of the physician and dentist.

On the Comparative Foundations of Principles in International Law: The Move Towards Rules and Transparency in Fiscal Policy as Examples

This chapter argues that principles in international law have their basis in comparative and analogical reasoning. It provides a taxonomy of principles ranging from general principles of law to soft legal principles and structural principles which are devoid of normative significance. The classification of principles in international law depends on the extent to which they find confirmation in domestic and/or international law and to which their extrapolation to the international level might be suitable. In this regard, international soft law codifications like the UNCTAD Principles on Promoting Responsible Sovereign Lending and Borrowing might corroborate the formation of principles in international law. The chapter analyzes this process by using two examples from the field of fiscal policy: Substantive fiscal policy rules on debt or deficit ceilings; and rules on fiscal transparency. In both respects, the UNCTAD Principles strengthen important trends in domestic fiscal policy and fosters the emergence of an array of principles of varying legal character.

The Use of Tax Treaties and Treaty Shopping: Determining the Dividing Line

This article explores the dividing line between the appropriate use of tax treaties and treaty shopping in international tax law. To this end, the author considers international soft law, tax treaties, national law, and the judicial doctrines that have been developed within national legal systems.

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

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

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.

Human rights gaps in the Palestinian criminal system: a United Nations role?

The Palestinian Authority has no obligation under human rights treaties. The authority is not required, as such, to report to the United Nations treaty-bodies. People under Palestinian jurisdiction cannot resort to these bodies for remedies. Yet the Authority should not be left treating some four-million individuals without international supervision. Such supervision could be based on the general and customary law, soft international law, and the applicable domestic law in Palestine. This article evaluates the existing substantive criminal law, as a case-in-point regarding human rights deficiencies in the areas under the jurisdiction of the Palestinians. It offers ways of potential international monitoring over the Palestinian Authority's human rights performance. It provides an analysis with a view to bringing the Palestinian criminal system in line with international law. It focuses on the role that can be played by the United Nations human rights mechanisms, including the Special Procedures and the High Commissioner for Human Rights. The article tracks criminal law under five themes: capital punishment; torture; ‘honour’ crimes; security crimes; and restrictions on the freedom of association.

Testing the Global Financial Transparency Regime1

How can we tell whether rules that apply in theory actually do so in practice? Realists argue that the gap between what formal rules proscribe and their effectiveness may be particularly wide at the international level. Furthermore, dominant states may impose costly standards on others that they themselves choose not to implement. To test these propositions, the article assesses the effectiveness of international soft law standards prohibiting anonymous participation in the global financial system by seeking to break these standards. The findings indicate that the prohibition on anonymous corporations is relatively ineffective and is flouted much more in G7 countries than in tax havens. The article contributes to and extends the work of realist scholars in international political economy, both in their skepticism of formal rules and focus on the effects of power. Evidence is drawn from the author's solicitations and purchases of anonymous shell companies from 45 corporate service providers in 22 countries.