LAW. Seventh Edition. BY. IAN BROWNLIE, CBE, QC, FBA. Bencher of Gray's Inn . Chichele Professor of Public International. Law in the University of Oxford. Serving as a single-volume introduction to the field as a whole, Brownlie's Principles of Public International Law seeks to present international law as a system. The sixth edition of Ian Brownlie's comprehensive and authoritative textbook has been thoroughly public international law since A new chapter on the.
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I. Brownlie, Principles of Public International Law (1st ed., ; 2nd ed., ; treatment of the basis of obligation in international law, though Brownlie has. Read ebook Ebook download Brownlie's Principles of Public International Law For Android Download file Download now. Public International Law is a compulsory course offered at the penultimate LLB . Ian Brownlie, Principles of Public International Law, 7th ed., Oxford University.
Thus to accommodate these requirements, the international environmental norm-making process is likely to be more difficult and time-consuming than the one in other fields of international regulation. Such idea must be emphasized, as it constitutes the main reason why alternative and novel formalism should be accepted and incorporated in the current international law making processes. International law, as any other legal field, should obey the dictates of reality and not the other way around, as the obsolete doctrine wants us to believe.
IEL meanwhile is just the perfect branch of general international law in which such analysis could be carried out. IEL does not have a particular dynamic regarding the sources but it represents universally the dynamics of general international law.
The foregoing explains why scholars include in the list of the sources of IEL, court decisions both international and national tribunals ,teachings of scholars, and soft law instruments that stands as the antithesis of "hard law" or the traditional list of article 38 of the ICJ Statute.
The case of Principle 21 of the Stockholm Declaration, 46 the prohibition of transboundary damage, 47 is very illustrative. Within the framework of the first environmental summit, the UN Conference on the Human Environment carried out in a political declaration was adopted. The texts contains that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction 48 bold stands as the specific development.
At that time it appeared evident that the text, worded in a legal fashion, was not binding as it was contained in a non-legal declaration. Notwithstanding, along the decades the text was not used as a simple political aspiration, its mere wording and the belief that it should not be devoid of legal effects gave it initially the label of "soft law".
Today, after its enforcement within the Rio Declaration and its global support stands as customary international law. The foregoing supports the pertinence to present an overview of the current developments of "soft law" in order to identify an accurate meaning, description, characterization as well as a presentation of its legal disadvantages, advantages and legal effects. The following part devoted to "soft law" will help to elucidate the other side of the coin, which has been located for the past decades at the back of article 38 of the ICJ Statute institutions, or what has been also called "hard law".
The overall presentation of the apparent white and black as well as the grey areas of the sources of international law will formulate a rethink on the obsolete formalism of the sources. Such a distinction will help us to understand the specific characteristics and common features of the collection of documents wich regulates a massive quantity of international issues at the present time and has done throughout the XXI Century.
There will be attempts to propose a classification of the types of "soft law" and their specificities.
Such endeavor will lead us to the conclusion that in fact there are many different ways to make law at the present time despite the finite list of article 38 of the ICJ statute hard law. The purpose will not consist of an attempt to propose a complete new list, that would be rather idealistic for now!
For instance, if the acceptance of such growing phenomenon increases, what today we call "soft" wouldn't be soft anymore. Although soft law has appeared in all international law fields, IEL has been one of the most productive scenarios. The resulting soft law documents from the foregoing summits are usually labeled as declaration of principles and plans of action depending on their main goal or function, notwithstanding, their nature, as soft law, is the same.
Are they political or legal instruments? The positions are divergent even within the scholars who defend their increasing usefulness in particular on the field of IEL.
Fitzmaurice argues that "soft law is one of these phenomena of international law which puzzle international lawyers and leave disagreement as to their legal character and their legal effects". As suggested before, soft law instruments were not artificially created, they just emerged as a response to the legal need faced by the international community.
There are many reasons why IEL has been and continues to be a fertile ground for soft law instruments to grow. Matters like the environment are tough issues involving sensitive interest for states, communities, peoples, enterprises, inter alia, and important values are always at stake. For instance: living creatures, health, security, stability, the mere survival of the mankind, on the one hand. And the contrast is not always that clear, sometimes the well being of one party can be achieved only if the interest of another party is affected.
In the end, that is what all environmental controversies are about. The foregoing explains why it is absolutely difficult to reach consensus over generally regulating environmental legal texts.
As a result we find one of the main reasons why soft law instruments play a crucial role in contemporary international law; those instruments constitute legal texts "generally complied with but free from pressures of the principle pacta sunt servanda as well as from the rules of customary international law".
It is not an ideal situation but a practical solution that has developed most IEL.
Likewise soft law has provided practical tools to unblock conflicts among international actors securing agreements when it seemed impossible particularly in events like the environment where "scientific evidence is not conclusive or complete, but nonetheless a cautionary attitude is required, or because economic costs are uncertain or over-burdensome".
Such fast moving phenomena cannot deal with slow motion sources like international treaties or customary law, thusrequiring an effective formula capable of responding to the high dynamism of current international relations. According to professor Dupuy these new states the ones created after the 50's , having the weight of the majority without the power of the elder countries, have speculated on the utilization of "soft" instruments, such as resolutions and recommendations of international bodies, with a view toward modifying a number of the main rules and principles of the international legal order.
I should disagree on that statement for different reasons. Such an affirmation is unfounded simply because its validity would depend on the prior identification of the abovementioned rules and principles of the international legal order; that was not done. Additionally, it has not been established which are the "elder countries" and it seems rather a political opinion rooted in the old and much criticized expression of obsolete international law: "civilized nations".
There are also remaining questions suchas: Do "the powerful countries" have more weight in legal terms than the "new and minor" majority? Is the majority comprised of non-powerful states incapable of making international law? In this regard, who are all the powerful countries? I think that, as far as international law is concerned, those questions were settled back in when the Westphalian classic international law concreted the principle of sovereign equality: a jus cogens norm currently in force.
In any case, I believe that the study of the new trends of the sources of international law and the definition, application and effects of soft law should be done in accordance with objective legal arguments. Instead of using the emergence of soft law as an argument to solve international perspectives of a different nature, which I dislike in this kind of legal studies but which should not always be ignored, I think that as the very same Dupuy suggests later in his article, "soft law should not be considered a "normative sickness" but rather a symbol of contemporary times and a product of necessity".
The international community as a social construct is dynamic, so it is the formalism of the sources of international law.
We may well call later "hard" what had labeled as "soft". Consequentially, there is neither a unique accepted definition of the term, nor even the possibility of identifying the most authoritative one. Neither is there agreement on the reasons why the very concept is being developed. In such circumstances it would be helpful, after presenting some reasoning regarding its origin, to compare a few definitions among the legal literature in order to abstract the most common features.
Undoubtedly it will address the discussion and give a more accurate explanation. McNair used it in order to encompass normative statements defined as abstract operative principles through judicial interpretation. The voting was forty-eight for and none against.
According to the author there are two identifiable family trees. The medieval legal pluralism and the lex mercatoria, which were the principal causes of the vulgarization of law as recognition of multiple styles, mentalities and solutions.
Then, soft law appeared in order to solve the needs and demands of business communities, creating a recognizable tensional between unity and plurality; and 2. The rise of social law and legal pluralism developed by European antiformalist jurists at the end of the 19th century.
Soft law emerged as the most effective mean to implement a new social policy, emphasizing characteristics such as flexibility, social responsiveness, pluralism and participation. Soft law is the necessary consequence of the evolution of the manner in which nowadays international relations are carried out.
As pointed out earlier, international law should follow reality and not the other way around. Soft law is indeed an expression of the sources of international law following reality. The foregoing circumstances shows why it is hard to believe that soft law is just an attempt by international scholars to expand their object beyond the actual realm of law in order to gain a bigger sphere for international scholarship, and, in the end, to preserve their jobs.
Following the previous presentation of a general panorama of the emergence of soft law, there will be presented a set of definitions which may lead this present study to an accurate characterization. One of the most quoted definitions in accordance with the current meaning is the proposed by Christine Chinkin in As can be read in the coming presentation of definitions, the most common benchmark is the concept of "legal bindingness" which explains why the majority of the definitions aim at unfolding whether "soft law" has or has not some sort of obligatory force.
Other scholars attempt to go deeper and conclude that "soft law" is just a stage where law can be found before it achieves its "hardness" strictu sensu.
That is where we see readings according to which "soft law" is aspirational law inspirational may work too , preparatory law or "unripe" law. We also found scholars who do not contemplate the "bindingness" yardstick considering that the response seems very obvious. After the foregoing clarifications it would be very illustrative to gather some of the most interesting definitions proposed by different sectors of the doctrine in order to point out what was previously said.
It is possible to identify that the legal scholars are aware of the existence of one phenomenon with legal implications in the international arena, although it does not correspond to any of the traditional conceptions of international law. They tried to define "soft law" by using different criteria, such as: causes, effects, implications, common examples, problematic, status, targets, subjects, participants, contents, etc.
After the previous gathering of definitions I will allow myself to attempt a characterization. Apparently the first clarification and a characteristic worth mentioning is that "soft law" necessarily implies the existence of a written document: an instrumentum. Strictly speaking, a hypothetically "soft customary law" would not even exist considering that for a rule to achieve the status of customary law it would be absolutely necessary to have the material and mental elements namely, international practice and opinio juris.
It would be completely inaccurate to say that a customary law has "softly" emerged. If those requirements were fulfilled, then the "soft customary law" would not be "soft" anymore and it would be just "customary law" hard law. Additionally, in all cases there would be reference to written documents where opinio juris of the international actors is posited.
Thus, the existing "soft law" would be referred rather to the material instruments written soft law or soft instrumentum than to the hypothetically alleged "soft customary law". Instead of speaking of "soft customary law" we see cases where the doctrine refers to "emerging customary law" as to describe rules of international conduct that have not yet achieved the full acceptance of the international community as customary law, yet they are increasingly becoming more accepted and already address the subjects' behavior.
That is the case of the precautionary principle in international environmental law , this is an international rule according to which international subjects shall avoid activities whose possible harmful effects against the environment have not been discarded with scientific certainty.
This rule can be summarized as follows: in case of scientific uncertainty of eventual damages on the environment caused by an activity, such activity should be suspended or initially avoided. The precautionary principle is contained in principle 15 of the Rio Declaration, a written soft law document. Yet, the massive reference both at the international and national levels, in treaties of a particular nature, non-binding instruments and writings of scholars is what makes the doctrine consider that the precautionary principle is emerging customary law.
International law does not clearly regulate the matter because such duty is bestowed on all international subjects. Still, as we have said in another opportunity, although it has not been absolutely confirmed, the precautionary principle may already be customary international law.
In any case, considering that most of the scholars consider it is emergent is a good practical example to illustrate how it would be inappropriate to talk about "soft customary law" because such thing would not even exist.
In its place we should speak of emerging customary law. That makes clear why one of the main features of "soft law" is its necessary embodiment in a written document. The foregoing characteristic can be also explained in theory of the law of the treaties, in particular in what has been called the negotium and the instrumentum.
The former being the specific substantive content of the rule and the later the tangible material object where such negotium is incorporated. Additionally, regarding the search for soft law, even when reference is made to a soft negotium that concept relates always to the confusing way a hard instrumentum was worded.
The Spontaneous Emergence of Soft Law From the abovementioned definitions we can also identify the scenarios where "soft law" could appear. The former is called "legal soft law" while the later is called "non-legal soft law" as posited in the initial definition proposed by Chinkin. According to Gruchalla-Wesierski it regards vague or ambiguous legal norms that do not have direct applicability. That type of norms, is usually the establishment of principles or aspirational constitutions, written in the maximum expression of abstraction.
They create broad goals and general purposes, describing situations, facts or other norms but without stating a specific provision. Nevertheless, strictu sensu those norms remain binding per se despite of the fact that they themselves do not have direct implications. Attention should be paid to the different places where legal soft law can be located within a treaty or a unilateral declaration because if the rule appears as an isolated norm disconnected from the other rules comprising the instrument, it is clear that the rule indeed does not have any legal implication.
That is then the first kind of non-legal soft law. On the contrary, if the rule is located in a specific part of the instrument giving light to the whole or part of the normative body, and worded as paradigms or guidelines for interpreting the other norms of the instrument, a different situation is faced. This would be a second kind of the so-called non-legal soft law.
The latter rules do not give the impression of being "soft" any more. They actually fulfill an identifiable and concrete legal function.
They fulfill the function of being the point of reference against which teleological interpretation is carried out. From that perspective, it is difficult to think that such particular type of so-called "legal soft law" is soft law considering that in the end it is bestowed of full obligatory force although it does not alone generate concrete legal effects rather it does it through other specific rules. Those rules usually fulfill their legal purpose when interpreted in relation to other rules belonging to the same legal institution.
On the other hand, non-legal soft law refers to the main meaning of "soft law" commonly used within the legal debate, as was explained above regarding the definition and characteristics. The non-legal soft law refers to non-binding instruments like political declarations, guidelines or reports of international organizations or NGO's where there are rules worded in a legal fashion. This is, I agree, strictly speaking "soft law" and therefore, together with the purposeless kind of legal soft law which is included in the accurate definition of soft law as a whole.
Browse All. Bibliographic Information Publisher: Jun DOI: Read More. Introduction 2. The Sources of International Law 3. Subjects of International Law 5. Creation and Incidence of Statehood 6. Recognition of States and Governments 7. Forms of Governmental Authority over Territory 9. Acquisition and Transfer of Territorial Sovereignty Status of Territory: Maritime Delimitation and Associated Questions The Law of Treaties Diplomatic and Consular Relations Unilateral Acts; Estoppel Sovereignty and Equality of States Jurisdictional Competence The Relations of Nationality The Conditions for International Responsibility Consequences of an Internationally Wrongful Act The International Minimum Standard: Persons and Property International Human Rights