Soft law instruments such as declarations, guidelines, directives, and codes of conduct significantly influence international human rights law. This chapter examines their functions, effects, and the interaction between soft law and customary or conventional norms. It discusses how soft law instruments contribute to the development and implementation of human rights norms, providing flexibility and adaptability. The chapter also explores the challenges and limitations of soft law, including issues of enforceability, legitimacy, and consistency. It highlights the role of soft law in complementing and reinforcing customary and conventional human rights norms, and the need for a comprehensive approach to integrate soft law into the human rights framework.

This chapter addresses the status of recognition of the human right to resist in conventional international law, and the outcome of recent other international codification efforts. It first considers the universal human rights system, and the theory of implied recognition as an unenumerated right in the International Covenant on Civil and Political Rights, identifying the theorized elements and content using the analytical template. It also considers the right’s corroboration implied by provisions of the Refugee Convention and the Rome Statute of the International Criminal Court. It then considers the right’s fragmentation in the regional human rights systems, comparing the elements and content of the express provisions in the African Charter on Human and Peoples’ Rights and the Arab Charter on Human Rights with its apparent non-recognition in the European and Inter-American systems. Finally, the chapter considers the most recent international ‘soft law’ codification effort: a proposed provision on the right of ‘resistance and opposition to oppression’ in the draft UN Declaration on the Right to Peace, identifying its elements and content. After this second failure to codify the right to resist in a UN human rights instrument, it assesses prospects for, and the legal value of, future international codification.

This chapter crosses the bridge from music industry practice to the analysis of the legal regimes deemed most relevant in securing a fair(er) balance in music contracts in the streaming age. Particular focus lies with the effect of the law on contracts entered into between musicians and record companies and/or music publishers as to individually managed exclusive rights. First, the chapter analyses the role of the legal framework in achieving this book’s policy objective of moving towards a fair(er) balance in the streaming age, fleshing out both the substantive and procedural dimensions of what may be perceived as ‘fair’ in this particular context. It then goes on to provide a typology of the relevant legal regimes, categorising these limitations to parties’ freedom of contract in terms of substantive, geographical and temporal scope and analysing the interplay between them. Finally, the chapter sets out to establish the appropriate level(s) and method(s) of further potential policy initiatives aimed at contributing to the elusive fair balance that this book advocates.

This chapter illustrates how soft law can have very real implications for the fundamental rights position of individuals. While the existence of an interference is often treated implicitly in the case law of the ECtHR and the CJEU, the chapter argues that interferences can result from soft law acts. For the EU this means that recourse to soft law does not in itself preclude the application of the Charter. How soft law may concretely interfere with fundamental rights is illustrated with a couple of examples from different policy areas. Having shown the possible fundamental rights implications of soft law, the chapter turns to remedies. Here the limitations of the EU’s system of judicial remedies is highlighted and the potential of non-judicial remedies is explored.

This chapter aims to inform reflection on business self-regulation (or corporate social responsibility, CSR) in addressing climate change by drawing on developments in ‘business and human rights’ and the experience accumulated in the European Union (EU). Despite dissimilarities in addressing the environmental and human right impacts of business operations, there are commonalities around incentives, impacts and regulatory dynamics of CSR that help clarify its expected place in global governance. This analysis revisits long-standing claims about CSR in light of current legal and market evolutions. The main finding is that the notion of CSR has been fundamentally transformed in the last 20 years. What is the change, what are the drivers enabling such change, and what are the expected impacts on corporate compliance and sustainability performance? The analysis contributes to the regulatory governance area, including regarding climate change, and promotes cross-fertilisation among the social and environmental areas in CSR.

This chapter addresses the suggestion that for a special regime to exist, community members must have a shared repertoire. In the context of international law, to claim that a group of international law specialists have a shared repertoire is to assert that they consider the use of certain rhetorical tools appropriate. As Chapter 5 argues, the existence of such a presupposition can be inferred from, amongst others, the use by specialists of distinct concepts, a distinct terminology, a distinct method, and distinct theories.

Chapter 8 examines regulatory rules, beginning with an examination of written rules. It underlines the inescapability of interpretive uncertainty and considers ways in which that uncertainty can be addressed, including varying the precision of rules, how they are specified, the publication of interpretive ‘guidance’ (sometimes called ‘soft law’) and the delegation of detailed standard-setting to ‘technical experts’.

This chapter first considers the central types of binding law: Regulations, Directives, decisions and international agreements. Different procedures govern the adoption of these laws, with the legislative procedure determined by the aim and content of law being adopted. There are three central legislative procedures. The ordinary legislative procedure grants the Parliament the power of veto, and the Council the power of assent over any Commission proposal. In the consultation procedure, Parliament is merely consulted on a Commission proposal with the Council having the final decision. The consent procedure requires the Parliament to actively approve a proposal. National parliaments are consulted on legislative proposals and can indicate that a measure violates the subsidiarity principle. Many EU laws provide for further implementation by Commission measures. These are adopted under procedures known as comitology, where representatives of national governments are either consulted or can veto the proposed measure. The chapter concludes by considering the democratic qualities of EU lawmaking, noting that conclusions depend very heavily on the prism through which these are analysed.

The debate over whether corporate social responsibility should comprise soft law responsibility or legally binding obligations is inadequate to address the legal relationship between corporations and society. The corporate social responsibility movement addresses only an economic agency problem and overlooks a fundamental gap between economic agency and legal agency, or attribution. The former is the problem of potential divergence of interests between a principal and an agent, and the latter concerns the laws regulating the relationship between a person and his or her representative. Corporate social responsibility is meant to respond to the first of these— – the economic agency problem – —as scholars have analyzed at length. However, the legal structures needed to address attribution and legal accountability are still far from established. The chapter proposes an attribution framework that can appropriately address the legal agency problem, in other words, to address corporate social accountability. It suggests that creating a new form of fictitious legal entity could help address this problem by resolving collective action issues.

The present chapter has a two-fold aim. First, it maps the current state of international supervision in the area of international criminal law by looking particularly at the competence of treaty bodies and other non-compliance mechanisms (NCMs), their institutional and operative differences, progressive sophistication, and other developments in recent practice. Secondly, the chapter investigates the features of, and circumstances under which, NCMs established by specific international criminal law instruments are more effective than others in addressing situations of non-compliance and orientating the future actions of States.

Fiduciaries frequently confront transnational situations. Lawyers – an archetypal class of fiduciary – have long counseled participants in cross-border transactions and conducted their own activities transnationally.1 Financial institutions – firms that often act in a fiduciary capacity2 – have provided products transnationally for centuries.3

Despite its often poor reputation and the scaremongering that accompanied its growth, the private military and security industry does not threaten the content or spirit of international humanitarian law (IHL). Nonetheless, concerns remain about both the behaviour of actors within the industry – private military and security companies (PMSCs), their employees, and employers – as well as the interest and capacity of states to hold these actors to account. There is a tension, therefore, between the clear applicability of IHL to PMSCs and doubts about its enforcement. The private military and security industry illustrates the gap between the ideals of IHL and its operational reality, and how this gap has then informed the creation of new soft law frameworks. In recent decades, international efforts have sought to further establish such guidance for the behaviour and use of PMSCs. One such effort, the Montreux Document, is an initiative of the International Committee of the Red Cross (ICRC) and Swiss Government, restating existing standards. While the Document has seen success in terms of state engagement and participation, PMSCs and their employers, as well as the broader regulatory climate around PMSCs, appear largely unaffected.

To what extent does soft law ensure harmonisation? Does it replace the governing law or does it complement it?

This chapter first introduces the main debates on the legitimacy of judicial review. It then turns to the most problematic examples of non-accountable decision-making that recently took place in the EMU, causing problems for individuals accessing fora of legal accountability, most visibly in the reduction of the protection of fundamental rights. The purpose of this exercise is to offer a sneak-peek preview of what went wrong, how (the lack of) judicial review contributed to this problem, and why traditional arguments against judicial review do not work in this context. Given that the EMU is an area characterised by high redistributive effects coupled with a wide discretion on the part of decision-makers, courts are in the perfect position to ensure that such decisions meet the Treaty objectives of the common interest. Any review of decisions in the EMU entails two duties. First, the starting point for courts must be an assumption of a full review. Second, decision-makers have an extensive duty of giving reasons for their decisions and put to the court the arguments on the nature of their discretion and how they used it. The chapter closes with conclusions on how the proposed framework will be used in the book.

This chapter begins by exploring the causes of the uneasy relationship between cultural heritage and law and the relationship that has developed between law and other non-law initiatives to care for cultural heritage in the UK. In developing an integrated approach to the care of cultural heritage, by considering both legal and non-legal instruments, the terminology of ‘nested practices of care’ (drawn from the work of Joan Tronto) is adopted. These different practices of care form the corpus of study for this book and demonstrate the varied way in which care is provided in the UK. In addition to cultural heritage frameworks consisting of multiple nested practices, other sources of law and non-law dealing with general principles provide care and are therefore treated as nested practices of care. The analysis adopted in this book does not lose sight of the hierarchy of norms and enforceability of the different legal and non-legal instruments, but nevertheless does treat these different elements as contributing to the communities of care across the UK.

The chapter provides a comparative account of cybersecurity public–private partnerships (PPPs). It argues that PPPs bring together the law-making powers of the states with the know-how of the private sector, that both are necessary to effectively deal with cybersecurity threats, and that the benefits of PPPs outweigh their limitations. It then empirically analyses the laws and regulations surrounding cybersecurity PPPs in eighteen different domestic jurisdictions to find a common denominator that could be transposed into international cybersecurity PPPs. Finally, it discusses the modalities that international cybersecurity PPPs could take and proposes a new international treaty incorporating PPPs, under which states undertake to establish domestic mechanisms for collaborating with the private sector in cybersecurity.