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And the possibility of soft law signifying a reversal in legal expansion, a sign of legal retrogression, is rarely considered. 110 But this is exactly what happens in the case of diplomatic assurances against torture. On the one hand, the constant legalization of the debate concerning their nature and function weakens rather than clarifies the argumentative line of human rights lawyers, as we have seen. On the other hand, diplomatic assurances represent precisely what soft law exponents tend to forget, namely that a theoretical construction can be turned to its head by being used for exactly the opposite purposes. Here the paradigm of normative expansion is reversed and human rights law finds itself obliged to fight against a thesis that helped human rights emerge in the first place. 111 There is, however, another, equally important, element which explains why the soft law thesis cannot be the discoursive framework for diplomatic assurances. This second common thread of soft law analyses is the link between soft law and communitarian/institutional ideas. It is argued that as membership in the international legal order expands and problems require multilateral solutions, States find themselves obliged to hold negotiations with an increasing number of participant States and to seek universal solutions for global problems. The ensuing phenomenon is a watering down of the language of commitments so that States can agree to the least common denominator. 112 So far, so good. But then international lawyers attempt to prove that soft law is the representative par excellence of communitarization. Réné-Jean Dupuy, for example, juxtaposed the egoistical nature of positivism with the realization of a communitarian project as expressed by soft law. 113 In addition to this, many scholars suggest that the communitarian allure of soft law directly impacts on the normative process. According to this view, this process is accelerated – not to say achieved – by the simple fact of soft law’s pp. 37-88, at 40. 110 See Weil, Prosper, op. cit., note ??, at 416; Judge Manfred Lachs, The Threshold in Law-Making, in Bernhardt, Rudolf et al. (eds.), VÖLKERRECHT ALS RECHTSORDNUNG, INTERNATIONALE GERICHTSBARKEIT, MENSCHENRECHTE: FESTSCHRIFT FÜR HERMANN MOSLER, 1983, Berlin, Springer-Verlag, pp. 493-501, at 500, while identifying the possibility of the soft law thesis weakening the law by softening what should be hard, he suggests that « the sometimes easy passage of the threshold helps the expansion of law and its strengthening by other methods ». 111 See Universal Declaration of Human Rights, GA Res. 217A (III) of 10 December 1948, UN Doc. A/810 (1948). 112 Gruchalla - Wesierski, Tadeusz, op. cit., note ??, at 39 and 43, speaking about the communitarian pressure to States to accept constraints. 113 Dupuy, Réné-Jean, op. cit., note ??, at 133, where he describes the tension « entre, d’une part un droit international positiviste, fondé sur la poursuite des intérêts particuliers des Etats, accordés sur le plan bi ou pluratéral, et, d’autre part, la mise en place progressive d’une communauté internationale ». See also Francesco Francioni, International ‘Soft Law’: A Contemporary Assessment, Vaughan Lowe & Malgosia Fitzmaurice (eds.), FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE: ESSAYS IN HONOUR OF SIR ROBERT JENNINGS (1996), Cambridge: Cambridge University Press, σ. 167-178, at 174-175. 20
communitarian traits. Boyle and Chinkin suggest, for example, that soft law instruments "provide more immediate evidence of international support and consensus than a treaty whose impact is qualified by reservations and the need to wait for ratification and entry into force”. 114 But here there is certainly something missing: neither an international community can be created 115 , nor universal law produced by the simple fact of a (non-binding) declaration of programmatory nature. 116 As we have already said, soft law may represent precisely the contrary idea, that of disagreement. Moreover, if soft law instruments constitute a clear sign of communitarization and of the emergence of a juridically relevant international community, the effort to link the soft law phenomenon to an institutional framework leaves us perplexed. Why do we need an institutional framework that will work as a safety net to the process of soft-law creation? Why do we need a supervisory body or a forum for negotiation 117 when the so much cherished communitarian consensus naturally emerges from the drafting of soft law instruments? We believe that beyond the practical advantages of linking soft law instruments to a pre-established institutional forum, the insistence on an institutional framework for soft law cannot but signify the divergences in States’ views. As Professor Sztucki stresses, soft law might be the product of confrontation rather than cooperation. 118 Once again, one can easily observe the inconsistencies of a communitarian reading of soft law. While soft law is associated with the ascendancy of the notion of the international community, this community discourse is compromised by the importance placed on the accompanying institutional mechanisms, as means for checking its evolution towards the “right” direction. But if soft law expresses a community consensus, why do we need a third party mechanism intervening and shaping what the community means by right direction? It is our submission that these inconsistencies are due to the fact that we push forward a notion of community that does not ensure the liberty for States and other actors to create their own 114 Boyle, Alan, Chinkin, Christine, op. cit., note ??, at 214. See also Fasternath, Ulrich, Relative Normativity in International Law, 4 EJIL (1993), pp. 305-340, at 339), who suggests that soft law « enables worldwide agreement on the content of hard law, in that it limits the scope of acceptable subjective auto-determination ». But surely there is no legal commitment to what has been declared – or maybe there is? See Shelton, Dinah, op. cit., note ?? at 319, who argues that “nonbinding commitments may be entered into precisely to reflect the will of the international community...”. 115 Contra Allott, Philip, EUNOMIA: NEW WORLD ORDER FOR A NEW WORLD, 1990, Oxford, OUP, at 321 et seq. 116 See the much more careful language used by Abi-Saab, Georges, op. cit., note ??, at 60 and 65, who considers soft law « comme moyen de réalisation d'un projet de société partagé parmi ses sujets, un droit négocié et directif, voulu et agréé plutôt qu'imposé…[s]oft law énonce ainsi la conscience de la communauté internationale du bésoin d’une certaine réglementation juridique ». 117 See Shelton, Dinah, Normative Hierarchy, op. cit., note ??, at 319 et seq.; Dupuy, Pierre-Marie, op. cit., note ??, at 423. 21
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