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sources doctrine in order to insulate law from external influences. That way, law’s
objectivism could be forcefully defended. The rigidity, however, with which the
sources doctrine was dealt, rendered law unresponsive to societal permutations. 73
The soft law thesis seems to fill this gap though at the expense of objectivism, since it
seems to reflect too close State practice, making law a means of apology. 74 In
addition to this, soft law is much more dependent on State intention, because
logically it is intention that distinguishes soft law from hard or non-law. While in the
case of treaties the existence of a formalized framework simplifies the work of a
lawyer in distilling the legal from the non-legal, soft law due to its informal nature is
heavily based on intention. In order to balance these traits, international lawyers try
to breathe objectivity to soft law by returning to a logic of formalism. 75
Different answers, opposing form to volonté, have been given to the question
about which acts are such as to establish binding relations under international law.
While most scholars vehemently defend the view that the non-binding nature of an
instrument should be determined on the basis of the existence or not of an intention
to be bound regardless of the form 76 , some scholars suggest that it is the absence of a
specific form that leads to softness. According to this view, a specific form bestows
bindingness to an instrument. 77 For example, Boyle and Chinkin speak of the form of
a non-binding agreement. 78 But one wonders what is meant with that, since we
know very well that there is no standard form for treaties, let alone for the broader
category of binding agreements. 79 Some others, while theoretically placing consent at
73
See, for exemple, the debate on the way law should accommodate the idea of humanitarian intervention;
Simma, Bruno, “NATO, the UN and the Use of Force: Legal Aspects”, 10 EJIL (1999), pp. 1-22; Cassese,
Antonio, “Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian
Countermeasures in the World Community?”, 10 EJIL (1999), pp. 23-31; Koskenniemi, Martti, 'The Lady Doth
Protest Too Much'. Kosovo, and the Turn to Ethics in International Law", 65 Modern Law Review (2002), pp.
159-175.
74
For the idea of apology, see Koskenniemi, Martti, The Politics of International Law, 1 EJIL (1990), pp. 1-32.
75
See Unger, Roberto Mangabeira, THE CRITICAL LEGAL STUDIES MOVEMENT (1986), Cambridge Mass.: Harvard
University Press, at 86.
76
See, among others, Rosenne, Shabtai, DEVELOPMENTS IN THE LAW OF TREATIES: 1945-1986 (1989), Cambridge:
Cambridge University Press, at 86; Fitzmaurice, Malgosia The Identification and Character of Treaties and Treaty
Obligations between States in International Law, 73 BYIL (2002), pp. 141-185, at 165: “The crucial element in
distinguishing between formal and informal instruments is the element of intention”; Virally, Michel, Sur la
notion d’accord, in Von Emanuel Diez, Jean Monnier et al. (eds.), FESTSCHRIFT FÜR RUDOLF BINDSCHEDLER: ZUM
65. GEBURTSTAG AM 8. JULI 1980, 1980, Bern: Stämpfli, pp. 159-172, at 172; Widdows, Kelvin, What Is an
Agreement in International Law?, 50 BYIL (1979), pp. 117-149, at 121. Contra Klabbers, Jan, THE CONCEPT OF
TREATY IN INTERNATIONAL LAW, 1996, The Hague: Kluwer Law International, at 13, where he claims that when
the external form of a document provides reasons to regard it as a treaty, the question arises how it would be
possible that the signatories do not intend to be a treaty.
77
In the same vein, some authors claim that treaties providing for soft obligations cannot be considered part of
soft law, since treaties are always binding, thus stressing the importance of form for bindingness; see Boyle,
Alan, ibid., at 901; Klabbers, Jan, The Redundancy of Soft Law, op. cit., note ??, at 172.
78
Boyle, Alan, Chinkin, Christine, THE MAKING OF INTERNATIONAL LAW, 2007, Oxford, OUP, at 213.
79
Chailley, Pierre, LA NATURE JURIDIQUE DES TRAITES INTERNATIONAUX (1932), Paris, Sirey, at 5 ( : la pratique
nous enseigne, en effet, que les traités peuvent être conclus…dans les formes les plus souples). Contra Aust,
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