Soft Law Standards Research Articles

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

Corporate Accountability by Treaty: The New North American Rapid Response Labor Mechanism

For several decades, civil society has sought to impose greater responsibility on companies for cross-border social wrongs. Multiple legal subfields and initiatives have emerged to take on this work: corporate social responsibility (CSR); business and human rights (BHR); responsible business conduct codes; environment, social, and governance (ESG) standards; and corporate due diligence schemes, among them. These many projects have culminated in national legislation across a range of jurisdictions imposing reporting and compliance requirements on companies, as well as in the development of soft law standards. Despite these efforts, international treaty initiatives to create binding obligations on companies and to require them to adopt certain human rights principles have made limited progress.

IMPLEMENTATION OF SOFT LAW RELATING TO OUTER SPACE INTO DOMESTIC LAW

Space law is clearly oriented towards creation of soft law instruments and their subsequent implementation directly into national law. However, it is not an ideal method for regulating the peaceful use of outer space. At least a few problematic issues should be noted. Firstly, the lack of scrutiny by parliaments with regard to soft law standards accepted by States. Secondly, the multiplicity of soft law documents on the same subject matter – especially in the case of space debris (IADC, UN, ISO or ESA), which may not be fully identical. Thirdly, developments in space technology mean that existing soft law standards may nevertheless be outdated in practice. Fourthly, the creation of new soft law is not always a quick process. However, implementation of international soft law relating to outer space into domestic law ensures that international norms are binding under national law. It thus strives to guarantee both the development and the effectiveness of international space law, despite the absence of new treaty regulations.

AI Enables the Control of Public Finances: US Federal Government Initiatives

Abstract In this article, the authors assesses the scope of the use of artificial intelligence technology in the management of the US federal public finance system in the years 2019–2022, with particular emphasis on public finance control. This assessment is indispensable in answering the question of whether artificial intelligence, which is a relatively new technology, is used in the area in question, and to what extent, and most importantly whether, it enables the US federal administration to control public finances. In order to answer this question, a holistic review was carried out of American law standards from the last decade and government documents that directly regulate the issue of artificial intelligence, including the definition of artificial intelligence adopted for the first time in American law, but also a number of other hard law and soft law standards. Law files that are directly or indirectly related to AI. The above allowed the determination of the scope of the political and legal approach to artificial intelligence in the United States of America, as well as the extraction of many conclusions about the use of artificial intelligence and the challenges facing its development. In the opinion of the author, the added value of this publication is the preliminary answer to the question of whether artificial intelligence can change the paradigm of the essence of managing the public finance system.

Advancing Queer-inclusive International Human Rights Law Education in Nigerian Classrooms through Indigenous Storytelling: Stories from a Law Classroom at Eko (Lagos, Nigeria)

ABSTRACT This study grounds itself in contact theory and imagined contact theory to argue that contact and simulated/imagined contact with queerness contributes to the eradication of homophobic prejudices. Using international human rights soft law – the African Commission on Human and People’s Rights’ Resolution 275 on the protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity – for its persuasive effect, this study seeks to centre the importance of attitude-focused work in the advancement of queer rights as well as in the engagement with queer-inclusive soft law standards in Nigeria, and more specifically in Nigerian universities. Based on an empirical storytelling intervention conducted at the University of Lagos, this study seeks to demonstrate the potential of the joint use of indigenous storytelling and Resolution 275 as attitude-focused and empathy-driven advocacy tools for advancing queer rights in Nigeria, In doing so, the study contributes to reimagining soft law and queer rights advocacy in terms of pedagogies as well as queer Nigerian classrooms as sites for queer rights advocacy.

The importance of implementing soft law standards in legal and constitutional matters in the European Union system – the case of Poland

In today’s dynamic world, where global challenges bring new, often previously unknown aspects, there is an urgent need to adapt the legal framework to contemporary realities. In this context, the European Union, as one of the most complex and integrated legal systems in the world, must constantly evolve to respond effectively to the challenges posed by modern society. One of the key elements of this adaptation is the implementation of soft law standards in the legal and constitutional framework of the European Union. The concept of soft law refers to norms and principles that, although not binding in the traditional sense, influence the shaping of legal practice and constitute an important tool for the interpretation and implementation of hard legal norms. In the context of the European Union, whose structure is based on a complex legal system covering both Community and national law, understanding and proper application of soft law becomes a key issue to maintain unity and effectiveness of action. This article will focus on analyzing the importance of implementing soft law standards in the context of the legal and constitutional system of the European Union. Both theoretical and practical aspects will be considered, showing how norms of this type influence the shaping and development of European law. Moreover, the article will attempt to assess the effectiveness of these standards in the context of the changing political and social realities that the European Union must currently face.

Internet of Things and the Implication of Legal Risks and Solutions

So far the Internet has been conceived as the network of people connected to one another. Recently, a lot of things works in connection with one another connected via the Internet. Thus this Internet is called Internet of Things(IoT). The things include not only the electronic devices for personal use such as smartphones and notebooks but also the variety of home appliances, cars, airplanes and even the satellite in the space. The things in the IoT are working based upon the most important two technologies, which are Artificial Intelligence and 5G Telecommunication Technology. Though IoT can be defined a bit differently by scholars and institutions, it is a common understanding that AI and 5G Telecommunication are the key elements. On one hand IoT’s capacity to sense, collect, analyze the informations and make decisions in a very high speed and effective way, makes possible the smart home, smart factory, smart city and even the smart government. On the other hand, it may also generate high risk and problems that it makes personal information leak and misused, person’s privacy is invaded, and even the national security can be threatened.
 The goals of benefiting IoT at the same time protecting people from the risks caused by IoT could be achieved through variety of efforts including setting up appropriate policies and enacting rules and regulations. This article addressed the alternative solutions for the achievement of the goals such as making soft laws, implementing governance process, and the application of blockchain. In sum, with all the pros and cons, this article strongly recommends people (including corporations, consumers, and other groups and associations), as the members of the community they belong to, that they adopt their own soft law best fit for their purpose and community environment to regulate themselves first and to make the soft law to regulate the society general as a de facto binding rules. While doing so we may go through the governance process to harmonize the conflicting interests of the constituents of the society and also adopt the new technology such as blockchain to strengthen the practicability of the soft law at the same time.
 Any soft law standards regarding the IoT should be purported to assure individuals that their data will not be misused or hacked, and that they facilitate trust and communication, and avoid the premature and heavy-handed stifling of innovation. Soft law can help these technologies proliferate while giving people the confidence that, contrary to the current belief, the benefits of the IoT far outweigh the risks. Soft law for IoT can be enhanced by convening a multistakeholder process, as one of the public governance process, to develop best practices for protecting the privacy and security of IoT data, including implementing security by blockchain solutions for the IoT.

European Standards of Judicial Governance: From Soft Law Standards to Hard Law

European Standards of Judicial Governance: From Soft Law Standards to Hard Law

‘Soft Law’, Informal Lawmaking and ‘New Institutions’ in the Global Counter-Terrorism Architecture

Abstract This article assesses the increasingly important and diverse role undertaken by a range of ‘soft-law’ counter-terrorism instruments since September 2001. It starts from the proposition that states increasingly use soft-law standards to regulate in the counter-terrorism, countering violent extremism and preventing violent extremism arenas. The article identifies a broad range of soft-law instruments and assesses their normative and practical importance for states. In parallel, the analysis identifies and maps a range of new institutions and entities producing such norms, paying particular attention to their membership, legal basis, terms of reference and working methods. The role and importance of these new institutions is broadly addressed. The article argues that soft-law production in counter-terrorism has weakened human rights protections across the globe and provided cover for sustained rights violations in multiple national contexts. As a result, human rights norms are not meaningfully included in the creation and implementation of these norms. The article pays particular attention to the lack of pathways for human rights standards to be meaningfully integrated, accounted for and benchmarked in the creation of counter-terrorism soft law. It identifies the ways in which new institutions have inter alia been established precisely to avoid the normative and institutional application of these standards to the counter-terrorism norm creation process. The article starts to trace the movement of some ‘soft-law’ norms to hard-law standards, illustrating the dense relationship between ‘hard’ and ‘soft’ law in the counter-terrorism arena.

Business, Human Rights and Climate Due Diligence: Understanding the Responsibility of Banks

Under the 2011 UN Guiding Principles on Business and Human Rights (UNGPs), banks, like all businesses, have a responsibility to respect human rights and to carry out human rights due diligence. Although climate due diligence is not explicitly included in the UNGPs, tackling an enterprise’s direct and indirect climate change impacts is arguably a dimension of the corporate responsibility to respect human rights and should form part of the human rights due diligence process. At present, it is unclear how such responsibility applies to banks, whose contribution to climate change is mostly indirect. This article addresses the research question: how should the law be interpreted to form a coherent climate due diligence standard for banks? To address it, the article first maps out the climate responsibility of banks under international soft law standards and assesses privately developed guidance. It then elucidates the emerging concept of climate due diligence, reading climate change responsibilities into the now well-established corporate responsibility to respect human rights as authoritatively elaborated in the UNGPs. Finally, it explains how such normative standard applies to banks and unpacks the key elements that a bank’s climate due diligence process should include.

Special Economic Zones Facing the Challenges of International Taxation: BEPS Action 5, EU Code of Conduct, and the Future

ABSTRACT Corporate taxation and particularly corporate tax incentives that jurisdictions introduce in special economic zones have not, until recently, been subject to extensive international regulation. Only in the last decade has a regime of soft law standards and European Union measures with extraterritorial effect been constructed. This article explains how the Base Erosion and Profit Shifting Action Plan developed by the Organisation for Economic Co-operation and Development (OECD) and the European Union Code of Conduct for Business Taxation interact with corporate tax incentives in special economic zones. Empirical evidence from Latin American and Caribbean jurisdictions shows that this emerging international regime began having an impact on special economic zone laws beyond the OECD and European Union Member States. An analysis of ongoing negotiations on the further developments of the international tax regime permits the cautious conclusion that the regulation of SEZs may in the future be affected in a more fundamental manner by international norms. Thereby, the article shows that special economic zones’ unilateralism in corporate taxation may be slowly receding in contrast to other areas of international economic governance.

The Implementation in Canada of the UN Standard Minimum Rules for the Treatment of Prisoners: A Practitioner’s Perspective

Abstract This article provides a practitioner’s view of the extent to which the 1955 UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) have been utilized in Canada. The author reviews how the SMRs are being used by national authorities, civil society organizations and criminal law practitioners in Canada and presents reflections as to how the SMRs could be better utilized to ensure that prisoners’ rights are protected in Canada. The SMRs, which, as revised in 2015, are often referred to as the Nelson Mandela Rules, are not in themselves binding upon states. However, they do carry weight: this is evidenced by the UN human rights bodies which have invoked the SMRs as a minimum universal standard in interpretations of binding international legal standards in their decisions and comments. Furthermore, the SMRs (traditionally classified as ‘soft law’) provide key stakeholders with useful and practical guidelines on all aspects of prisoners’ rights. This article argues that the SMRs are being utilized to a degree in Canada, but that there is room for improvement. Canada is, in general, rather insular in its application of soft law standards. The Canadian courts have ruled, for example, that the SMRs are not binding in the domestic context. Thus, within the context of litigation, compliance with the SMRs is a challenge. Furthermore, a lack of legal literacy and training in prisoners’ rights in general and in the SMRs more specifically is evident in Canada. The author’s view is that legal training on the SMRs for criminal law practitioners and the judiciary would be one significant step towards more effective utilization of the SMRs in Canada.

AI Soft Law and the Mitigation of Product Liability Risk

Artificial intelligence systems present various types of risks, but are generally not subject to comprehensive government regulation at this time. Soft law measures such as private standards have been developed to fill this governance gap, but a major limitation of such standards is that they are not directly enforceable, and so many companies may not comply with them. This article examines the thesis that compliance with soft law standards may provide some protection from product liability, thus providing additional incentive for companies to adopt and comply with such standards. Using U.S. case law as the focus of analysis, compliance with private standards does not provide an absolute shield against liability, but can provide persuasive evidence of due care that can diminish liability risks in most U.S. state jurisdictions. Conversely, while failure to abide by soft law standards does not automatically result in liability, it can provide probative evidence that a company has not exercised due care, and thus should be held liable. Moreover, compliance with soft law standards can provide an effective defense against punitive damages in many States if a company’s AI system does harm people or property and is held liable for compensating such damages. These findings suggest that protecting against such liability provides a powerful incentive for companies to comply with soft law standards.

Specialty: Arresting an elusive ‘right’ in European extradition law

Specialty (a near-universal rule of extradition law whereby a person extradited cannot be prosecuted or punished for matters other than those for which they were extradited) is viewed traditionally as a tool to protect the sovereignty of the extraditing state, rather than as an individual right. A review of international material shows a dispute as to the existence of a rule or principle of specialty in customary international law and emphasises themes such as enforceability and standing of individuals to plead violations. Against that backdrop, the European situation is characterised by the presence of broad specialty rules which are not always implemented in legislation by requesting states, leading to refusal of extradition in some cases. Arguably, combinations of the EU law duty of conforming interpretation and European human rights law principles may offer tools to overcome such situations, approaching protection of specialty ‘rights’ whatever the original doctrinal rationale. If they do not, and international cooperation is further undermined by ineffective specialty protection, EU legislation or the development of soft law standards may be a useful way forward.

Postmortal Issues of Smolensk Tragedy Against the Obligations of Art. 2 of European Convention on Human Rights

Abstract The main aim of the study is to analyze posthumous problems that concern the victims of the Smolensk disaster in the context of positive obligations of the state. The first element of the analysis will concern the standards of dealing with the bodies of disaster victims as soon as they occur. The second aspect will include the obligation to notify of death along with other obligations and information on victims. Then, issues related to the transport of corpses and the opening of coffins will be described, and finally the regulations regarding uninterrupted burial. The analysis of the above issue presented in the work will be carried out taking into account regional human rights protection standards and the ECtHR’s judicial practice. Both soft and hard law standards will be included in the analysis.

Corporate Social Responsibility between Self-Regulation and Government Intervention: Monitoring, Enforcement and Transparency

The existing rules and standards on corporate social responsibility can best be described as a hybrid legal architecture, where various regulatory approaches maintain a friendly coexistence. This type of multilevel rule-making is sometimes perceived to be complicated and not very effective because it is often said to leave some areas of economic activity unregulated and, in any case, unenforced. Given this difficulty, it becomes evident that the interaction between the different regulatory strategies currently in place, ranging from self-regulation to government intervention, has to be analyzed in more detail. Scholars have often argued that there is a governance gap because public international law only provides for certain rights, but no obligations, for transnational companies. What scholars sometimes miss, however, is that the law, although indirectly, does in fact already regulate corporate behavior with regard to human rights, labor, the environment and anti-corruption. In this article, I identify and describe various monitoring, enforcement and transparency mechanisms through which international soft law standards are backed up by national public and private law rules. The importance of this is that it will help us better understand what the role of the law is in the status quo with regard to corporate social responsibility. Corporate social responsibility, regulatory theory, transnational governance, legal theory, business and human rights, business and the environment

Corporate Social Responsibility between Self-Regulation and Government Intervention: Monitoring, Enforcement and Transparency

The existing rules and standards on corporate social responsibility can best be described as a hybrid legal architecture, where various regulatory approaches maintain a friendly coexistence. This type of multilevel rule-making is sometimes perceived to be complicated and not very effective because it is often said to leave some areas of economic activity unregulated and, in any case, unenforced. Given this difficulty, it becomes evident that the interaction between the different regulatory strategies currently in place, ranging from self-regulation to government intervention, has to be analyzed in more detail. Scholars have often argued that there is a governance gap because public international law only provides for certain rights, but no obligations, for transnational companies. What scholars sometimes miss, however, is that the law, although indirectly, does in fact already regulate corporate behavior with regard to human rights, labor, the environment and anti-corruption. In this article, I identify and describe various monitoring, enforcement and transparency mechanisms through which international soft law standards are backed up by national public and private law rules. The importance of this is that it will help us better understand what the role of the law is in the status quo with regard to corporate social responsibility.

The Juridification of the UK’s Counter Terrorism Prevent Policy

The U.K. policy of “Prevent” aims to stop people becoming involved in, or supporting, terrorism. In common with many CVE policies worldwide, Prevent has remained controversial in its conception, delivery, and impact. A formal review is now underway, so it is opportune to ask, “Whither Prevent?” This paper will examine briefly the justifications for Prevent, but the main thesis is that the juridification of Prevent is a beneficial trend in the U.K. Juridification is depicted as: the legislative production of ever more extensive and elaborate instruments; the expansion of judicial oversight; and the administrative (bureaucratic) application of soft law standards. Juridification is here invoked in order to enhance the legitimacy of the policy of Prevent through explicit improvements in its modes of operation and through offering modes of challenge where the principles of constitutionalism are contravened. If Prevent can be improved in these ways, then its application can be refined to address more effectively and efficiently the threat of terrorist attacks, especially given that the originators or observers of these threats are invited under the Prevent policy to cooperate by consent in the enterprise of counter terrorism.

The ‘Acquis’ of the Council of Europe in the Sphere of Disaster Preparedness and Response

The article discusses institutional and standard-setting initiatives of the Council of Europe aimed at enhancing the effectiveness of its members states’ actions when responding to natural or man-made disasters. Although the Statute of the Council of Europe itself is silent on tasks in this regard, the organization’s agenda in disaster preparedness and response was developed inter alia through the EUR-OPA Major Hazards Agreement of 1987 (a so-called ‘enlarged partial agreement’), as well as soft-law standards and the jurisprudence of the European Court of Human Rights on the positive obligations of states under Article 2 of the European Convention on Human Rights (the right to life). The article studies the Council of Europe’s activities in this sphere, while noting – in a comparative perspective – the most important developments in international cooperation aimed at disaster prevention and response within the European Union, the Organization of Security and Co-operation in Europe, as well as the United Nations and the International Federation of Red Cross and Red Crescent.

Capturing Commitment in Informal, Soft Law Instruments: A Case Study on the Basel Committee

ABSTRACT The present article investigates the legal nature of the Basel Committee on Banking Supervision and seeks to identify the legal effects of the acts produced by the committee under public international law. It reassesses the most influential contemporary theories that have endeavoured to describe and capture the increasing trend towards ‘de-formalization’ of international law, of which the Basel Committee, with its peculiar composition and standard-setting activities, is generally considered as one of the most significant examples. The articles comes to the conclusion that the Basel Committee’s normative outputs cannot be qualified as legal acts or legal facts under international law as they are best described as the results of flexible and informal standard-setting activities developed by domestic regulators at the international level, with a view to inducing compliance by national legislators and stakeholders. The lack of a formal ‘pedigree’ under international law has not undermined their effectiveness; on the contrary, it can be considered a peculiar feature of a successful model of transnational cooperation where soft law standards have been translated into domestic legislation.