Edited by Andrea K. Bjorklund and August Reinisch
Chapter 3: Soft Law in International Law: An Overview
Melaku Geboye Desta I. CONTEXT When the ILA Study Group on the Role of Soft Law Instruments in International Investment Law was established by the ILA Executive Council in November 2008, its mandate was ‘to study 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’. The purpose of this chapter is to provide a broad, and far from comprehensive, overview of the large body of literature on soft law and its role in international law generally. While this chapter thus informs the rest of the book, it does not purport to provide a shared understanding of the concept or set limits to the scope of each contribution – indeed, each contributor wrote their chapter without reference to this introductory chapter or any constraint imposed by a Group-level understanding of what exactly we mean by soft law. II. A BRIEF LOOK AT THE SOFT LAW LITERATURE Concept The question of whether there is any normative instrument or arrangement that lies somewhere below what is law, but above what is not law, in international relations, or more broadly whether there are diﬀerent degrees of normativity in international law,1 has generated a International law is often described as a normative system (with broadly three types of norms: prescriptive, prohibitive and permissive) and an operational system. See e.g. Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1993) 1;...
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