‘General principles of law’, ‘soft’ law and the identification of international law

Abstract

Treaties and custom are generally regarded as the major sources of international law. They derive their validity more or less directly from the consent of those subjects of the law which also possess the institutional authority to make law. The perceived limitations of the consensual nature of these two sources have resulted in doctrinal controversy concerning, inter alia, the existence of sources of international law which are not essentially consensual. This is the rationale for the inclusion of general principles of law recognised by civilised nations alongside treaties and customary international law in Article 38 of the Statute of the International Court of Justice, as one of the sources of international law to which the Court may refer. Similarly, the phenomenon of ‘soft’ international law is, by and large, a response to the failure to generate the full measure of State consent required for attributing full legal status to the ‘soft’ norms in question, often in relation to developing fields of international concern. It is often said that these non-consensual sources have an inferior status when compared with the consensual ones. The purpose of this paper is to consider critically the basis and the form of the differentiation between these two apparently non-consensual phenomena (i.e., ‘general principles’ and ‘soft’ law) on the one hand, and the paradigmatic (because consensual) types of international law (i.e., treaties and custom) on the other.

The Rule of Law and Human Mobility in the Age of Global Compacts: Relativizing the Risks and Gains of Soft Normativity?

“…One of the explanations is linked to the rawness of the relation established among the axes. The principles guiding the implementation of the 23 objectives and the actions subordinated to these are not "logically differentiated" (Elias and Lim 1997), in the sense that states failed to reach a political consensus on a relative ranking among these, for example, by attributing pre-eminence to the rule of law (Panizzon 2022). During the IMRF 2022, Ecuador-speaking on behalf of 28 "champion countries" 14 -responded to the UN Secretary General's biennial report 15 by positioning the GCM in the line of UN-led international cooperation tools: "[w]hen migration is safe, orderly, and regular, it represents a sustainable development opportunity.…”

“…Whereas Guild et al (2022 in this Special Issue) argue that the EU asylum acquis-as interpreted by the Court of Justice of the EU (CJEU)-cannot disregard the principle of non-retrogression as enshrined in the Global Compacts when interpreting the EU Charter of Fundamental Rights, they lend some support to the idea of the "relative normativity" (Weil 1983) of the Compacts. In their view, non-retrogression counterweighs the traditional concept of state sovereignty in the production of normative inferences out of "non-consensual legal phenomena"-as described in the seminal analysis by Elias and Lim (1997).…”

The Function of Public International Law

“…Consequently, it is submitted, the principle of sovereign equality may coherently be resituated within the reformulated framework identified in Part I. 69 Elias and Lim 1997, pp. This power to act situates the members of international society in a dilemma in the sense that in order to exercise their power to act they must turn to the constituting of international society.…”

Sub-regional Instruments as Vehicle for Domestic Maritime Legislative Development: Cameroon’s Experience with the ‘CEMAC’ Merchant Shipping Code

“…Shipping is inherently international, so it is vital that shipping is subject to uniform regulations on matters such as construction standards, navigational rules, standards of crew competence, etc. The alternative would certainly be a plethora of conflicting national regulations resulting in commercial distortion and administrative confusion which would compromise the efficiency of world trade -hence the importance for countries to ratify [4], effectively implement and verifiably enforce at least most, if not all the major maritime instruments adopted at the international level when such instruments enter into force.…”

“…This distinction is made clearer later in this article. 4 A country may of course also become a party to a convention by acceptance, approval or accession under the Vienna Convention on the Law of Treaties, 1969 (VCLT), 1155 UNTS 331 Articles 14 and 15. In any event, most conventions do specify what steps countries are required to take.…”