Some Reflections on the Relationship of Treaties and Soft Law

Part of the Nijhoff Law Specials book series (Nijhoff Law Specials)


My starting point for this discussion of the relationship between treaties and soft law is the observation that the subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty. The role of soft law as an element in international law-making is now widely appreciated, and its influence throughout international law is evident. Within that law-making process the relationships between treaty and custom, or between soft law and custom, are also well understood. The relationship between treaties and soft law is less often explored, but it is no less important, and has great practical relevance to the work of international organizations.


Dispute Settlement Montreal Protocol Advisory Opinion General Assembly Resolution Multilateral Treaty 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.


  1. 1.
    See generally R. R. Baxter, “International Law in `Her Infinite Variety”’ (1980) 29 ICLQ, pp. 549–566;Google Scholar
  2. C. M. Chinkin, “The Challenge of Soft Law: Development and Change in International Law” (1989) 38 ICLQ, pp. 850–866Google Scholar
  3. Pierre-Marie Dupuy, “Soft Law and the International Law of the Environment” (1991) 12 Michigan JIL, pp. 420–435Google Scholar
  4. Jerzy Sztucki, “Reflections on International Soft Law”, in (1992) de Lege,p. 365.Google Scholar
  5. 2.
    Oscar Schachter, “The Twilight Existence of Non-Binding International Agreements” (1977) 71 AJIL, pp. 296–304.Google Scholar
  6. 3.
    Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) (1994) ICJ Rep. 112.Google Scholar
  7. 4.
    For example an agreement between a State and a multinational company: see An-glo-Iranian Oil Co. (Jurisdiction) (1952) ICJ Rep. 93.Google Scholar
  8. 7.
    See Richard Gardiner, “Revising the Law of Carriage by Air: Mechanisms in Treaties and Contract” (1998) 47 ICLQ, pp. 278–305.Google Scholar
  9. 8.
    Articles 17 and 23 of the Statute of the Commission do refer expressly to the con-clusion of conventions, but other possibilities are left open.Google Scholar
  10. 9.
    The Commission considered the eventual form of its draft articles at its 50th Ses-sion in 1998 but deferred a decision on whether to propose a convention or a declaration. It was noted that the dispute settlement provisions in part three of the draft could not be included in a declaration.Google Scholar
  11. 13.
    See Alan Boyle and David Freestone (eds.), International Law and Sustainable Development: Past Achievements and Future Prospects (Oxford University Press, Oxford, 1999), chi; Philippe Sands (ed.), Greening International Law (Earthscan, London, 1993), chs. 1 and 3.Google Scholar
  12. 17.
    Kuwait Protocol for the Protection of the Marine Environment Against Marine Pollution from Land-based Sources.Google Scholar
  13. 18.
    See Western Sahara (Advisory Opinion) (1975) ICJ Rep. 12; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) (1986) ICJ Rep. 14.Google Scholar
  14. 19.
    Decision I1/5, UNEP/OzL.Pro/WG.3/2/2, Annex 111 (1990).Google Scholar
  15. 23.
    See Paolo Contini and Peter H. Sand, “Methods to Expedite Environment Protection: International Ecostandards” (1972) 66 AJIL, pp. 37–59.Google Scholar
  16. 24.
    The preamble to the Nuclear Safety Convention recognises that internationally formulated safety guidelines “can provide guidance on contemporary means of achieving a high level of safety.” IAEA guidelines would be the obvious starting point for determining what constituted the “appropriate steps” with regard to safety controls required by Articles 10–19 of the Convention.Google Scholar
  17. 25.
    IAEA Safety Series No.110: The Safety of Nuclear Installations (Vienna, 1993)Google Scholar
  18. IAEA Safety Series No.111-F: The Principles of Radioactive Waste Management (Vienna, 1995)Google Scholar
  19. IAEA Safety Series No.120: Radiation Protection and the Safety of Radiation Sources (Vienna, 1996);Google Scholar
  20. IAEA GC (XXXIV)/939: Code of Practice on the Transboundary Movement of Nuclear Waste (1990).Google Scholar
  21. 26.
    E.g. the NUSS codes, IAEA GC (XXXII)/489 (1988).Google Scholar
  22. 27.
    UN Convention on the Law of the Sea, Articles 207–212.Google Scholar
  23. 29.
    Especially Articles 4(1) and (2). The United States’ interpretation of these articles was that “there is nothing in any of the language which constitutes a commitment to any specific level of emissions at any time…” The parties determined at their first meeting in 1995 that the commitments were inadequate and they agreed to commence negotiation of the much more specific commitments now contained in the 1997 Kyoto Protocol.Google Scholar
  24. 31.
    North Sea Continental Shelf (Judgement) (1969) ICJ Rep. 3.Google Scholar
  25. 32.
    Ronald Dworkin, Taking Rights Seriously (Duckworth, London, 1977). This argument is developed by Philippe Sands, in, Winfried Lang (ed.), Sustainable Development and International Law (Graham and Trotman/Martinus Nijhoff, London/Dordrecht/Boston, 1995), ch.5.Google Scholar
  26. 33.
    E.g. the International Court’s reliance on the principle of sustainable development in the Gabëikovo -Nagymaros Case,on which see Vaughan Lowe, in Boyle and Freestone, International Law and Sustainable Development, op. cit.,ch. 2Google Scholar
  27. A. E. Boyle, “The Gabcikovo -Nagymaros Case: New Law in Old Bottles” (1997) 8 Yearbook of International Environmental Law 13–20.Google Scholar
  28. 34.
    See the debate between Philippe Sands and Howard Mann (Ph. Sands, “International Law in the Field of Sustainable Development: Emerging Legal Principles” and Howard Mann, “Comment on the Paper by P.S.” in Lang, Sustainable Development, op. cit.,53–74 at 53–66 and 67–72, respectively).Google Scholar
  29. 35.
    The so-called “Berlin mandate”: Decision 1/CP.1, in, Report of the Conference of the Parties on its 1st Session,UN Doc.FCCC/CP/1995/7/Add. l.Google Scholar
  30. 36.
    See Part XV, on which see Alan Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction”, (1997) 46 ICLQ, pp. 37–54Google Scholar
  31. Robin Churchill, “Dispute Settlement in the Law of the Sea — The Context of the International Tribunal for the Law of the Sea and Alternatives to it”, in Malcolm Evans (ed.), Remedies in International Law: The Institutional Dilemma ( Hart Pub., Oxford, 1998 ), pp. 85–109Google Scholar
  32. John Merrills, International Dispute Settlement (3rd ed., Grotius, Cambridge, 1999), ch. 8;Google Scholar
  33. R. R. Churchill and A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press, Manchester, 1999), ch. 19Google Scholar
  34. L. B. Sohn, “Settlement of Law of the Sea Disputes” (1995) 101nt. J. of Marine and Coastal Law,pp. 205–217Google Scholar
  35. Andronico Adede, The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea: a Drafting History and a Commentary (Martinus Nijhoff, Dordrecht/Boston, 19817)Google Scholar
  36. E. D. Brown, “Dispute Settlement and the Law of the Sea: the UN Convention Regime” (1997) 21 Marine Policy,pp. 17–43.Google Scholar
  37. 37.
    See Andronico Adede, in Lang, Sustainable Development, op. cit.,ch. 8Google Scholar
  38. Patricia W. Birnie, “Legal Techniques of Settling Disputes: The `Soft Settlement’ Approach”, in William E. Butler (ed.), Perestroika and International Law ( Martinus Nijhoff, Dordrecht/Boston, 1990 ), pp. 177–195Google Scholar
  39. Thomas Gehring, “International Environmental Regimes: Dynamic Sectoral Legal Systems” (1990) 1 Yearbook of International Environmental Law,pp. 35–56Google Scholar
  40. Günther Handl, “Controlling Implementation of and Compliance with International Environmental Commitments: The Rocky Road From Rio” (1994) 5 Colorado JIELP, pp. 305–331Google Scholar
  41. Alexandre-Charles Kiss, “Compliance with International and European Environmental Obligations” (1996) 9 Hague Yearbook of International Law,pp. 45–54Google Scholar
  42. Winfried Lang, “Compliance Control in International Environmental Law: Institutional Necessities” (1996) 56 ZaöRV, pp. 685–695.Google Scholar
  43. 40.
    Article 8, and Annex IV, as adopted at Copenhagen in 1992. The process is described in UNEP, Report of the Implementation Committee for the Montreal Protocol, 20th Meeting, UNEP/OzL.Pro/ImpCom/20/4, paras. 24–33Google Scholar
  44. O. Yoshida, “Soft Enforcement of Treaties: The Montreal Non-compliance Procedure and the Functions of Internal International Institutions” (1999) 10 Colorado JIELP, pp. 95–141.Google Scholar
  45. 41.
    Protocol 11 of the European Convention on Human Rights; Article 38 provides that the Court of Human Rights “shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention” and the Protocols thereto.Google Scholar
  46. 42.
    See Decision 1997/2, in, UNECE, Report of the 15th Session of the Executive Body (1997), Annex III and Patrick Széll, “The Development of Multilateral Mechanisms for Monitoring Compliance”, in Lang, Sustainable Development, op. cit.,pp. 97–109.Google Scholar
  47. 43.
    See UNEP, Report of the 7th Meeting of the Parties to the Montreal Protocol,Decisions VIU15–19 (Poland, Bulgaria, Belarus, Russia, Ukraine) UNEP/OzL.Pro.7/12 (1995);Google Scholar
  48. UNEP,, Report of the 8 Meeting,Decisions VIII/22–25 (Latvia, Lithuania, Czech Republic, Russia) UNEP/OzL.Pro.8/12 (1996);Google Scholar
  49. UNEP, Report of the 9th Meeting,Decisions IX/29–32 (Latvia, Lithuania, Russia, Czech Republic) UNEP/OzL.Pro.9/12 (1997).Google Scholar
  50. For the most recent position see Report of the Implementation Committee for the Montreal Protocol, 20th Meeting,UNEP/OzL.Pro/ImpCom/20/4 (1998).Google Scholar
  51. See generally Jacob Werksman, “Compliance and Transition: Russia’s Non-Compliance Tests the Ozone Regime” (1996) 36 ZaöRV p. 750Google Scholar
  52. David G. Victor, The Early Operation and Effectiveness of the Montreal Protocol’s Non-compliance Procedure ( International Institute for Applied Systems Analysis, Laxen-burg, 1996 )Google Scholar
  53. Richard E. Benedick, Ozone Diplomacy: New Directions in Safeguarding the Planet (Enlarged ed., Harvard University Press, Cambridge, Mass., 1998), ch.17.Google Scholar
  54. The problems are discussed in Jacob Werksman, Responding to Non-Compliance Under the Climate Change Regime (OECD, 1998); id. in James Cameron, Jacob Werksman, Peter Roderick (eds.), Improving Compliance with International Environmental Law,(Earthscan, 1996), pp. 85 et seq.Google Scholar
  55. 45.
    UNFCC Article 13; 1997 Kyoto Protocol Article 16. For details of the process see 6th Report of the Ad Hoc Working Group on Article 13 (1998) UN Doc. FCCC/ AG 13/ 1998 /2.Google Scholar
  56. 46.
    Martti Koskenniemi, “Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol” (1992) 3 Yearbook of International Environmental Law,pp. 123–162.Google Scholar
  57. 47.
    See for example the Nuclear Weapons (Advisory Opinion),(1996) ICJ Rep. 226, in which some 40 States made written or oral submissions to the Court. In contentious cases involving the construction of a multilateral convention all parties to the convention have a right to intervene in the proceedings, and the construction so given will be equally binding on such States: Statute of the ICJ, Article 66. It should be noted, however, that an allegation of non-compliance is not necessarily a question of construction.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 2000

Authors and Affiliations

There are no affiliations available

Personalised recommendations