International Investment Law and Soft Law

International Investment Law and Soft Law

Edited by Andrea K. Bjorklund and August Reinisch

This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.

Chapter 5: Soft Law Instruments in Environmental Law: Models for International Investment Law?

Kate Miles

Subjects: law - academic, international economic law, trade law, international investment law


Kate Miles I. INTRODUCTION The changing nature of the international legal system over the last 50 years has generated novel approaches to law-making, innumerable rules, and a variety of institutions, mechanisms, and new actors within international law.1 Reflecting these trends, there has also been an increased use of ‘soft law’ instruments during this period.2 In part, this recent proliferation of soft law instruments and non-state actor initiatives is due to the manifold nature of the functions they can fulfil within international law, both as an end mechanism in themselves and as a precursor to the development of ‘hard law’. Nevertheless, certain fields within international law have not utilized soft law instruments to the same degree as others, international investment law being just such an area. Recent developments in investment law, however, together with the trends in international law more generally, suggest that it is now appropriate to consider the potential use of soft law instruments within international investment law, and, indeed, the feasibility of the narrower task of codification of its principles and rules. 1 See Philippe Sands, ‘Turtles and Torturers: The Transformation of International Law’ (2001) 33 New York University Journal of International Law and Politics 527; Anne-Marie Slaughter, A New World Order (2004); Nico Krisch and Benedict Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’ (2006) 17:1 The European Journal of International Law 1; Frank Garcia, ‘Globalization and the Theory of International Law’ (2005) 11 International Legal Theory 9....

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