Abstract
This chapter looks at international soft law against the background of broader issues about the normativity of law. It explores the ways in which “institutional normativity” operates across legal systems with special focus on the relationship between different constructs of validity. The chapter develops a narrowly defined “core” concept of validity that reflects the minimum conditions for providing effective normative guidance in institutional settings. This concept revolves around the idea that validity establishes a mediated relationship between the legitimacy of law and the internal processes of legal practices. The chapter argues that more specific constructs of validity are political constructs that reflect the concrete political and institutional dynamics of particular legal practices. This point about the coexistence of different constructs of legality and legal validity is demonstrated by an analysis of the relationship between international law and modern state law. The chapter characterise the proliferation of international soft law as one manifestation of the tensions that this coexistence brings about. The growing volume and significance of international soft law has a lot to do with a constraining model of legality in domestic legal systems which have a spillover effect on international law. Soft law often needs to fill normative spaces that have been made hard to access for hard international law. For a more concrete analysis, issues about international soft law in the field of human rights law are picked out. Using the General Comments of the UN Committee on Economic, Social and Cultural Rights as an example, the chapter looks at the legitimacy problems that the proliferation of soft law generates.
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Notes
- 1.
For this reason, the current piece is primarily a legal theoretical effort, not really a contribution to international law scholarship.
- 2.
See in the present volume, von der Pfordten, Validity in Positive Law: A Mere Summary Concept, section 3.
- 3.
See especially in the present volume Westerman, Validity: The Reputation of Rules; Hage, What Is Legal Validity? Lessons from Soft Law; von der Pfordten, Validity in Positive Law: A Mere Summary Concept. I am probably more distanced from Paolo Sandro’s ontological account of validity. See Sandro, Unlocking Legal Validity: Some Remarks on the Artificial Ontology of Law.
- 4.
Similarly, Pauline Westerman writes that ‘soft law acquires status from its marriage to hard law.’ See her contribution in this volume, Westerman, Validity: The Reputation of Rules, section 6.
- 5.
Most importantly, I set aside how my account presupposes a very specific interpretive methodology. See Bódig (2013a), pp. 120–123.
- 6.
- 7.
My terminology has its origins in John Searle’s Speech Acts. See Searle (1969), p. 54 (conditions for ‘successful and non-defective performance’) and p. 94 (‘unsuccessful’ acts).
- 8.
I rely here on Frederick Schauer’s profound analysis of how rules are linked with their ‘rationale’, ‘justification’ or even ‘generating justification.’ See Schauer (1991), pp. 5, 26, 53 and 74.
- 9.
In a similar context, Andrei Marmor speaks about ‘identity related’ reasons (where the addressee’s reason to φ partly depends on the identity of another agent who suggests, requests, or orders the addressee to φ). See Marmor (2011), p. 62.
- 10.
My views on this point owe a lot to Neil MacCormick. See MacCormick (2008), p. 11.
- 11.
I use the concept of ‘institution’ in a relatively narrow sense. I talk of institutionalization in relation to social practices where interaction among the participants is at least partly organized around public and explicit rules and/or fixed role constructions. The term ‘institution’ itself applies to the set patterns of interaction among the participants—e.g. set procedures (like an election) or normatively constructed and interconnected social relations (like marriage or the relationship between a principal and her agents).
- 12.
That would lead to theoretical trouble e.g. when making sense of civil disobedience.
- 13.
Elsewhere, I characterize this way of distinguishing between ‘external’ and ‘internal’ justification in law. See Bódig (2010), pp. 131–134.
- 14.
Only a few legal theorists dispute this. Michael Moore is one of them. See Moore (2000), pp. 155–167.
- 15.
Elsewhere, I call this ‘false normativity’. See Bódig (2013b), pp. 216–217. It is one of the typical features of legal practices that people are, on occasion, forced to act in ways that cannot be adequately justified. In this sense, institutional normative practices incur a moral cost that is a matter of legitimate concern for all participants at all times.
- 16.
This connection is actually a conceptual prerequisite: without it, validity could not serve as a proxy for the success of the normative claims.
- 17.
This indicates that my conceptualization resonates with the (very) useful distinction Jaap Hage draws between ‘internal’ and ‘external’ validity claims in his chapter. See Hage, What Is Legal Validity? Lessons from Soft Law. It is clear that the sense of validity I capture here covers only internal validity claims.
- 18.
For a brief but instructive account of the consolidation of law in the state, see Tamanaha (2017), pp. 107–108.
- 19.
Berman saw this pattern in how the medieval canonists looked at the relationship between natural law and the prevailing customs of medieval polities. See e.g. Berman (1983), pp. 145–146.
- 20.
This is how Berman famously characterized the life of the law in medieval Europe. See e.g. Berman (1983), p. 215.
- 21.
In a similar context, Neil Walker characterizes the authority claims of (state) law as ‘magisterial’. See Walker (2010), pp. 31–32.
- 22.
It is worth noting that that this model has alternatives. State law can be envisaged as only one of the mechanisms for exercising sovereignty. The sovereign may choose to rely on it (because that is what good governance demands) but may legitimately exercise extra-legal authority (without legal accountability) when necessary. This model is reflected in early modern theories of absolutism. See Bódig (2002), pp. 282–285. The basic idea is also there in Carl Schmitt when he argues that sovereignty must precede the legal order, and can be manifested in decisions that are not subject to legal criteria. See Schmitt (2006). What I claim is that the model I am outlining is dominant and spreading—because this is what underlies constitutional democracy.
- 23.
For the distinction, see Börzel and Risse (2013).
- 24.
On this, I agree with Jean d’Aspremont. See d’Aspremont (2011).
- 25.
See World Summit Outcome, GA Res. 60/1., 16 September 2005, ss. 138–140. By entertaining the possibility that the sovereignty of a state can be overridden by the international community (if it is unable or unwilling to discharge its responsibility to protect its population against the most egregious international crimes), the responsibility to protect doctrine offers a template for reworking the very concept of sovereignty. If sovereignty is directly tied to inherent duties toward citizens, it becomes something that can be earned and squandered. And international law, instead of treating state sovereignty as the very ground for its own normativity, may lay claim to setting rules on the conditions under which sovereignty is won or lost. Of course, this conceptual possibility was already implicit in the way human rights obligations were made part of the UN Charter, and also the way in which the Vienna Convention on the Law of Treaties limited the treaty-making powers of states (Articles 53 and 64).
- 26.
As an exciting recent development, one can think of the interactional theory of international legal obligations. See Brunnée and Toope (2010).
- 27.
I do not engage with the debates on the very intelligibility of the term among international law scholars, and I grant that the concept may be attributed different meanings. I only aim at providing a particular conceptualization that fits my theoretical agenda here. For the background to my account of international soft law in the literature, see Boyle (2010), p. 128; Shelton (2003), pp. 10–13; Chinkin (2003), pp. 25–31.
- 28.
I have hinted above that my conceptualization of legal validity can be reconciled with those of Westerman and Hage in this volume. Importantly, that cannot be said about their analysis of soft law. My conceptualization of soft law sharply differs from Westerman’s analysis which sees soft law arrangements as carrying token-validity due to a mere ‘semblance’ of legality. See Westerman, Validity: The Reputation of Rules, section 5. My take on the concept also differs from Hage’s account that defines soft law as ‘law that can less easily be used in legal arguments than hard law.’ See Hage, What Is Legal Validity? Lessons from Soft Law, section 5.
- 29.
This indicates that I see two basic functions for international soft law. The first is articulating existing obligations. This is what we see in the General Comments I look at more closely in the next section. The second is facilitating the development toward prospective hard law. This is often the case with, e.g., declarations (like the UN Declaration on the Right to Development, GA Res. A/RES/41/128., 4 December 1986) or plans of action (like Transforming Our World: The 2030 Agenda for Sustainable Development, GA Res. A/REAS/70/1., 25 September 2015) that seek to influence state behavior and the processes of international bodies in ways that make likelier the emergence of certain hard law obligations in the future. Of course, such attempts may fail, and the norms can remain permanently stuck in the status of soft law. (Arguably, this is what happened to the Declaration on the Right to Development.)
- 30.
See CESCR (2000) General Comment 14 (‘The Right to the Highest Attainable Standard of Health’) UN Doc. E/C.12/2000/4, ss. 43–45.
- 31.
This may mean affecting the agenda and language of later documents. For example, the Declaration on the Right to Development came to influence the 2030 Agenda for Sustainable Development.
- 32.
Of course, soft law can be a factor in the development of customary law but it does not change the fact that soft law is consciously created as not binding.
- 33.
- 34.
I disagree with d’Aspremont on this point. See his d’Aspremont (2011), pp. 128–130. Soft law may actually extend the scope of formalism in international law.
- 35.
‘The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received from the States Parties to the present Covenant and the specialized agencies on the measures taken and the progress made in achieving general observance of the rights recognized in the present Covenant.’ International Covenant on Economic, Social and Cultural Rights, Article 21. I note that it is the ECOSOC that gets the authorization here. The monitoring powers were delegated to the CESCR by way of Economic and Social Council Resolution 1985/17.
- 36.
CESCR (1994) Report on the 8th and 9th Session, E/1994/23; UN Doc. E/C.12/1993/19. s. 51.
- 37.
CESCR (1990) General Comment 3 (‘The Nature of States Parties Obligations’) UN Doc. E/1991/23(SUPP).
- 38.
CESCR (1999) General Comment 12 (‘The Right to Adequate Food’) UN Doc. E/C.12/1999/5.
- 39.
Talking about ‘minimum core obligations’ (that are not subject to resource constraints and are immediately applicable) sits very uneasily with the ‘progressive realisation standard’ in article 2(1) of the ICESCR.
- 40.
- 41.
- 42.
- 43.
The drafting history the Statute of the International Criminal Court is an instructive example of the impact of human rights activism on hard international law. See Glasius (2013), pp. 151–154.
- 44.
One can look at the Millennium Declaration (GA Res. A/RES/55/2. 18 September 2000), the Millennium Development Goals and the 2030 Sustainable Development Agenda.
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Acknowledgements
I am grateful for useful comments from the participants in the Groningen Workshop and subsequent research seminars held in Aberdeen and Debrecen where earlier versions of this chapter were presented. I am particularly thankful to Mátyás Bencze, Irene Couzigou, Tamás Győrfi, Tamás Hoffmann, Andrei Marmor, Paolo Sandro, Robert Taylor, Dietmar von der Pfordten, and Zsolt Ződi. I am also grateful for the anonymous reviewer’s comments on my chapter.
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Bódig, M. (2018). Legal Validity, Soft Law, and International Human Rights Law. In: Westerman, P., Hage, J., Kirste, S., Mackor, A. (eds) Legal Validity and Soft Law. Law and Philosophy Library, vol 122. Springer, Cham. https://doi.org/10.1007/978-3-319-77522-7_12
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