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This chapter analyzes the most important source of international law – the international agreement. It first explains why it is appropriate to think of states as being risk neutral rather than risk averse in the context of international law. It then explores the choice states make between various design features in their international agreements, including the choice between hard and soft law, the presence or absence of dispute resolution, the use of reservations, escape clauses, and exit clauses. The trade‐off between form and substance in agreements is also explained, as is the manner in which membership rules are developed.

This chapter explores how Voluntarist jurists, who rejected Hard Natural Law, nonetheless developed their own natural law theory by fusing fact and value, but nonetheless upheld their voluntarist commitment to divine omnipotence. Soft Natural Law jurists relied on a theology of God's grace (tafaddul, fadl), and the authority of source-texts to fuse fact and value in nature, but contingently so. By fusing fact and value on the basis of divine grace (fadl), Soft Natural Law jurists allowed for the possibility that God may change His mind. Divine grace in Soft Natural Law permits the fusion of fact and value in nature, while at the same time rendering nature contingent in a way that Hard Natural Law theorists did not allow. The chapter provides an overview of different jurists' Soft Natural Law theories, illustrating both the core concepts of Soft Natural Law, as well as the different approaches to this type of natural law theory.

This chapter examines the theoretical framework of international soft law and how it embraces both legally nonbinding and binding rules and standards of international financial regulation. International soft law is defined as legally nonbinding standards, principles, and rules that influence and shape state behavior but do not fit into the traditional categories of public international law of legally binding general custom of states and bilateral or multilateral treaties. It is argued that international soft law in its various dimensions can contribute to an understanding of the development of legally relevant international financial norms and how they govern state regulatory practice.

This chapter engages in a normative assessment of international lawmaking by way of interpretation. It first studies the bittersweet taste of justice in legal discourse and juxtaposes diverging views on semantic change that employ substantive yardsticks. Neither narratives of progress nor realist critiques can categorically convince. Looking at the preconditions that render the exchange of interpretative claims normatively meaningful is more promising but the concept of arguing should not be overburdened with normative aspiration. International law should rather be explored as a medium that helps to justify the exercise of authority. The chapter testes potentials in the developments of legal doctrine in this regard and exposes the normative preferences nested in notions of soft law, subsequent practice, global administrative law and in research centred on international public authority. It closes by outlining a framework for the democratic justification of semantic authority in a normative pluriverse.

This chapter examines various formal international antitrust institutions. It begins by exploring the different types of international conduct that suggest the need for an international institutional response. It then discusses the different existing supranational antitrust institutions. These institutions vary in terms of size (global vs. regional), design (hard vs. soft law), and effectiveness. Next, the chapter explores the strengths and weaknesses and the effectiveness of each of these international antitrust institutions. It concludes that soft law international antitrust organizations are the best institutional choices to reduce the problems of international antitrust. Particularly noteworthy has been the rapid development and effectiveness of the International Competition Network (ICN). The ICN has, in its short history, made significant strides in increased harmonization in procedural issues and some substantive issues. How much convergence is optimal and how best to effectuate it remain open questions not merely for the ICN, but for all existing (and potentially new) international antitrust institutions.

This chapter sheds greater light on informal accords, bringing them in from the scholarly shadows. The first section delves into what it is about the EU that allowed the informal sphere to develop and shows how informal accords fit into the EU institutional architecture. The next section describes the form and function of informal accords, presenting a basic typology of four different types of accords. The third section examines the sources of informal accords, while the fourth explores the legal base of informal accords which is typically assumed to be completely lacking. The chapter's fifth section illuminates the critical role of the Parliament's “Rules of Procedure,” which presages the final section's focus on the origin of the Parliament's political strategy with regard to the EU's informal interorganizational dynamics.

This chapter addresses one of the fundamental issues in the research on informal international lawmaking (IN-LAW): ‘Is it International Law or Not, and Does it Even Matter?’. The universe of norms is larger than the universe of law. At the same time, within the realm of law, not all law imposes or proscribes specific behaviour or legally binding ‘rights and obligations’. The question of the distinction between ‘law’ and ‘non-law’ has kept legal theorists busy for ages, but it continues to pop up when lawyers feel the need to mark their territory. The main question raised (and answered) in this chapter is whether ‘output informality’ implies that IN-LAW output is not international law.

This chapter discusses compliance with ‘hard’ and ‘soft’ law. The international community has developed ‘hard’ and ‘soft’ norms to serve many of the same systemic functions, that is, to order relations among entities in a society and to satisfy the desire of groups within that society to promote their own value preferences. Often, no explicit, reasoned choice is made between ‘hard’ or ‘soft’ norm solutions, instead the character of the norm may result from confluence of various unforeseen and unplanned circumstances. Thus, while the status as law or non-law may be important to compliance in some respects, in most situations it is not. More important is the contribution of that the norm provides to the ordering of relations within the international community.

This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to the presence and agency of relevant actors, and thus cannot do away with the requirement of consent just yet. On the other hand, law-making should also be responsive to common needs. The chapter suggests that a presumptive approach may be the best way to combine the two polar opposites, and posits the idea that normative utterances best be seen as law unless the opposite can be proven, accompanied by an enumeration of elements that may help rebut the assumption of law.

This chapter examines the role played by soft law in meeting the challenge of globalization. A perception is that with increased international economic integration transcending individual national legal orders on the one hand, and deregulated (or under-regulated) global space facilitated by international trade (e.g. WTO), and financial institutions (e.g. World Bank) on the other, the negative effects of economic globalization are insufficiently addressed in international law. This is particularly the case with the regulation of social matters — labour, environment, and human rights. The chapter focuses on environmental examples, and includes recent soft law initiatives such as the United Nations Global Compact established in 2000 and the Type II partnership agreements which have been concluded since the 2002 World Summit on Sustainable Development in Johannesburg.

This chapter analyzes the structure of traditional international law and the conceptual bases for a distinction between legally binding and non-binding norms. It considers the debate of whether ‘hard’ and ‘soft’ law are distinct categories or end points on a continuum. It reviews various non-binding instruments and their uses, developing a criteria for identifying ‘soft’ law among the multitude of international texts adopted by international actors.

This chapter presents four case studies on human rights that analyze the use of non-binding norms in four contexts. The first presents the case of the Organization for Security and Cooperation in Europe (OSCE), whose participating states have deliberately chosen not to conclude treaties, but instead have adopted a series of legally non-binding normative instruments. The second considers the use of recommendations and non-binding instruments in the International Labor Organization (ILO), which also concludes treaties, and the extent to which compliance differs with the nature of the instrument. The third case study considers a similar dual normative structure in the Organization of American States (OAS). The fourth case study compares the McBride and Sullivan Principles, examples of increasingly frequent codes of conduct for transnational corporations.

The substantive scope of international institutional cooperation increases and states feel compelled to participate in such cooperation. This means that institutions different from the state are delegated power to make decisions and adopt policies beyond the control of each individual member state. In the absence of national constitutional control, this chapter examines to what extent democratic control of decision-making, guarantees related to the rule of law, and protection of human rights should be ensured at the international level. It also discusses whether the fragmented international institutional framework should be replaced by a hierarchic constitutional order. Finally, the inter-action and respective functions of international and national constitutionals organs are addressed.

This chapter discusses the varied forms of international institutional law. It looks into the role of the Security Council as law-maker and its position between power and law. A selective survey on the standard-setting in other international organizations is also presented. The survey mentions the Codex Alimentarius, ICAO's standards and recommended practices, international organizations ‘advisory’ material, ILO recommendations, and IAEA standards. Also mentioned are the FAO's and UNEP's prior informed consent regime, WTO Soft Law, the WHO's Code on marketing of breast-milk substitutes, the World Bank guidelines, IMF conditionality, and emerging global administrative law. The chapter ends with interim conclusions that are at odds with the standard accounts of the limited role of international organizations in law-making and that describe the emerging global administrative law that these organizations produce.

This chapter examines policy options and modalities for framing an international instrument on limitations and exceptions to copyright within the treaty obligations of the current international copyright system. It considers this international copyright acquis as the general starting point and evaluates options for the design of such an instrument, including questions of political sustainability and institutional home. Section I sketches the rationales for a multilateral approach to the question of limitations and exceptions. Section II explores flexibilities inside the international copyright acquis, reviews the three-step test, and assesses its import for the validity of a proposed international instrument on L&Es, particularly given the expansion of the test in the TRIPS Agreement and the interpretive jurisprudence of the WTO dispute panels. Finally, section III sets out in preliminary fashion the basic contours of a multilateral instrument on L&Es.

This chapter begins with a review of the hypotheses presented in the study. It then explains compliance by theories about informal social norms. The application of research on compliance with binding agreements to soft law and enhance compliance with soft law are discussed.

Adopting a critical perspective on the new ‘open method of coordination’, this chapter argues that, through its creative use of soft law mechanisms, the evolving European Employment Strategy has the potential to fashion a middle course through the regulatory choices facing the EU, between full harmonisation, on the one hand, and mutual recognition or regulatory competition, on the other. The chapter claims that the ‘soft’ coordination of the open method does in fact have quite a ‘hard’ impact, placing powerful political pressure on Member States to comply with centrally designed policies, and constraining their policy choices. It also questions whether — in the context of an explicitly ‘hard’ economic policy coordination backed by sanctions — a form of governance which eschews centralised social policy norms can adequately ensure a core of social rights, below which no Member State can fall.

A chapter on internally displaced persons (IDPs) stands out from the other chapters in this volume in that it concerns internal rather than international migrants; and people who are therefore almost always citizens of the country where they have migrated or been displaced. In addition to providing an overview of the institutional, political, and normative elements of the response to internal displacement, this chapter therefore focuses on wider implications for the global governance of international migration. Citizenship is still on the whole the preserve of sovereign states, and so inter-state regulation is less an issue for IDPs than for international migrants. At the same time, there has been a rapid evolution of institutional cooperation in assisting and protecting IDPs. The way that international organizations have overcome institutional rivalries and worked towards innovative responses to gaps in their mandates to protect IDPs has important lessons for the international response to other migrants such as those resulting from the effects of climate change who do not clearly fall within the responsibility of a single agency. At the political level, the key challenge has been to negotiate international intervention in a sovereign domain. The evolution of the ‘Responsibility to Protect’ (R2P) concept has been critical here, and this chapter analyses its relationship to IDPs. At the same time, the way that R2P also pertains to the protection of other migratory citizens, including internal migrants, returning refugees, and international migrants, is analysed. Finally, at the normative level, the Guiding Principles on Internal Displacement represent a good example of ‘bottom-up’ consensus-building. The Guiding Principles are in essence a restatement of existing international humanitarian and human rights law as they apply to IDPs, and are not binding upon states. They have nevertheless gained widespread international acceptance and form the basis for a growing body of domestic law. There may be lessons to learn here for the global governance of particularly controversial areas of international migration such as migrant workers.