Download - The Graduate Institute, Geneva

lock, stock and barrel. 101
Apart from the apparent inconsistency between the initial differentiation of
soft from hard law and the subsequent (partial) equation of the two, this turn to a
justice-based view (i.e. good faith) is no less subjective than consensualism, in the
sense that we now focus on the impact a pledge has on others. As Professor
Koskenniemi has eloquently argued, “a justice-based view leads into the impasse of
the indeterminacy of the concept of ‘justice’ and to the difficulty of explaining why
our construction of it would be capable of overriding [a] differing construction” 102 .
In order to remedy soft law’s indeterminacy, international scholars and judges alike
– as we have observed in the case of diplomatic assurances – insist that
enforcement/settlement of disputes provisions accompany a soft law instrument. 103
Moreover, these mechanisms should provide for third party involvement, making
clear that auto-interpretation cannot do away with the risk of subjectivism. 104 In the
end, linking hard responsibility and hard sanctions to a soft law instrument might
eliminate the difference between hard and soft law. 105
The model of legalization shows the imaginative paucity of international
lawyers. It can be explained by a “kind of deviation professionnelle of jurists inclined to
see every social phenomenon, especially one characterized by regulatory purport in
“law-related” terms”. 106 This model also highlights the blind commitment of
international scholars to the international legal cause. 107 Their attitude towards soft
law illustrates their tendency to consider a soft agreement better than no agreement
at all. 108 International scholars have been so much persuaded by the positive
normative image of soft law – as a precursor of hard law – that some of them even
end up suggesting that « the adoption of soft law reflects a great deal of respect for
international law on the part of States ». 109 The objection that soft law might be a
consecration of serious disagreements between States is summarily brushed aside.
101
Boyle, Alan, op. cit., note ??, at 902 and 905.
102
Koskenniemi, Martii, Introduction, op. cit., note ??, at xiv.
103
See Widdows, Kelvin, op. cit., note ??, at 122 and 130, and the observations of Aust, Anthony, op. cit., note ??,
at 802.
104
See Cheng, Bin, Flight from Justiciable to Auto-Interpretative International Law: From Jay Treaty to the Schultz
Letter, in LIBER AMICORUM ELIE VAN BOGERT, 1985, Antwerpen, Kluwer, pp. 2-18; Fawcett, J.E.S., op. cit., note ??,
at 391; Aust, Anthony, ibid., at 791 (suggesting that a provision for negotiation in case of disagreement is a
strong indication against bindingness); and see the critical comment by Zarbiev, Fouad, Les politiques des vérités
juridiques en droit international. Propos autour d’une controverse interjuridictionnelle, 16 FYIL (2007), forthcoming,
who submits that the impartiality of judicial bodies is greatly exaggerated.
105
Klabbers, Jan, Redundancy, op. cit., note ??, at 169.
106
Sztucki, Jerzy, op. cit., note ??, at 573.
107
See our analysis in p. ??.
108
See Hillgenberg, Hartmut, A Fresh Look at Soft Law, 10 EJIL (1999), pp. 499-515, at 501, and the observations
of Klabbers, Jan, Undesirability, op. cit., note ??, at 383.
109
Gruchalla - Wesierski, Tadeusz, A Framework for Understanding "Soft Law", 30 MCGILL LAW JOURNAL (1984),
19