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Chapter

Cover International Law

5. Soft Law in International Law-Making  

Alan Boyle

From a law-making perspective the term ’soft lawʼ is in most cases simply a convenient description for a variety of non-legally binding instruments used in contemporary international relations by States and international organizations. Soft law in this sense can be contrasted with hard law, which is always binding. Non-binding soft law instruments are not law per se, but may be evidence of existing law, or formative of the opinio juris or State practice that generates new customary law. They may additionally acquire binding legal character as elements of a treaty-based regulatory regime, or constitute a subsequent agreement between the parties regarding interpretation of a treaty or application of its provisions. Other non-binding soft-law instruments are significant mainly because they are the first step in a process eventually leading to conclusion of a multilateral treaty, or because they provide the detailed rules and technical standards required for the implementation of a treaty. An alternative view of soft law focuses on the contrast between ’rulesʼ, involving clear and reasonably specific commitments which are in this sense hard law, and ’normsʼ or ’principlesʼ, which, being more open-textured or general in their content and wording, can thus be seen as soft even when contained in a binding treaty. It is a fallacy to dismiss soft law because it does not readily fit a theory of what is ‘law’: properly understood, it can and does contribute to the corpus of international law-making.

Chapter

Cover International Law

2. How International Law is Made  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter explains how international law is made through the formation of customary international law and the making of treaties, and how tribunals apply other sources of law such as ‘general principles’ of law and ‘soft law’ principles derived from resolutions of international organizations.

Chapter

Cover International Criminal Law

1. The sources of international criminal law  

This chapter provides a brief introduction to the two main sources of public international law, treaty law and customary international law. It provides a basic overview of the law of treaties and explains the special status of obligations arising under the United Nations Charter. It outlines the key features of customary international law; examines the relationship between treaty law and customary international law; and revisits the idea of whether there is a hierarchy of sources in international law, and how conflicts between international law norms are to be resolved. The chapter also discusses the relationship between international criminal law and other branches of international law, specifically human rights law and international humanitarian law.

Chapter

Cover International Law

3. Hierarchy of norms in international law  

This chapter examines the hierarchy of norms and sources in international law. Establishing a hierarchy of norms and sources allows for a community to elevate certain fundamental principles over ordinary norms, and to establish order and clarity in the relations between norms, authoritative institutions, and legal subjects. In the last half-century, a special class of general rules endowed with peremptory legal force has emerged. Known interchangeably as ‘peremptory norms’ or ‘norms of jus cogens’, these are regarded as possessing a higher status than ordinary rules of international law, and would prevail over the latter in cases of conflict. As such, whether an ordinary rule exists in treaty or customary law, or is a general principle, it is null and void if in conflict with a rule of jus cogens. The chapter also studies a related category known as rights or, more commonly, obligations erga omnes (‘owed to all’).

Chapter

Cover International Human Rights Law

1. Introduction  

This introductory chapter introduces the book, which is on modern international human rights law. It also introduces key concepts in public international law to ensure those not familiar with that discipline understand sufficiently the relevant concepts in order to work successfully with international human rights. This chapter also outlines the structure of the book.

Chapter

Cover Cases & Materials on International Law

2. Sources of International Law  

This chapter begins with a discussion of the importance of the sources of international law. It then discusses the Statute of the International Court of Justice 1945; treaties; customary international law; general principles of law; judicial decisions and the writings of publicists; resolutions of international organisations; soft law.Finally, it looks at whether there exists a hierarchy of international law sources.

Chapter

Cover International Law Concentrate

4. The relationship between international and domestic law  

This chapter analyses the relationship between international and domestic law and particularly the reception of the former in domestic legal systems. This matter is regulated in the receiving State’s constitutional law and is generally based on the doctrine of incorporation and that of transformation. The former does not require any further implementing legislation by the receiving State, but where it is applied it is subject to several limitations, particularly where the treaty in question is not sufficiently clear or precise, in which case it is not automatically self-executing. The philosophical foundations of the relationship between international and domestic law are explained by reference to the monist and dualist theories. Besides treaties, domestic law also regulates the reception of custom and UN Security Council resolutions. However, in respect of Security Council resolutions, international human rights law determines their legality.

Chapter

Cover Commercial Law

5. The authority of an agent  

This chapter places the authority of an agent as a central concept of the law of agency, identifying two principal types of authority, namely actual authority (both express and implied, and the various forms of implied authority, such as customary authority and incidental authority) and apparent authority. There is a third form, known as usual authority, but, as will be seen, the reasoning behind the cases that established this form of authority is highly suspect. All three forms of authority are discussed. Determining the existence and type of authority is vital as the legal consequences of an agent breaching their authority can be severe. The principal may not be bound by the agent’s actions and the agent may instead be personally liable. In addition, the agent may lose the commission/remuneration to which they were entitled, and may be found liable for breach of contract and/or breach of warranty of authority.

Chapter

Cover International Law

4. The Theory and Reality of the Sources of International Law  

Anthea Roberts and Sandesh Sivakumaran

The classic starting point for identifying the sources of international law is Article 38 of the ICJ Statute, which refers to three sources: treaties, customary international law, and general principles of law; as well as two subsidiary means for determining rules of law, namely judicial decisions and the teachings of publicists. However, Article 38 does not adequately reflect how the doctrine of sources operates in practice because it omits important sources of international law while misrepresenting the nature and weight of others. To appreciate how sources operate in practice, international lawyers need to understand how international law is created through a dialogue among States, State-empowered entities, and non-State actors. States are important actors in this process, but they are not the only actors. It is only by understanding this process of dialogue that one can develop a full understanding of the theory —and reality—of the sources of international law.

Chapter

Cover International Law

2. Sources of international law  

This chapter provides an overview of the legal sources in international law. Sources of law determine the rules of legal society and, like national legal societies, the international legal society has its own set of rules. The discussion begins in Section 2.2 with article 38 of the International Court of Justice Statute. Section 2.3 discusses treaties, Section 2.4 covers customary international law, and Section 2.5 turns to general principles of international law. Attention then turns to the two additional sources listed in article 38. Section 2.6 discusses judicial decisions and Section 2.7 examines academic contributions. Section 2.8 discusses the role played by unilateral statements. The chapter then turns to the issue of a hierarchy of sources in Section 2.9 and concludes in Section 2.10 with a discussion of non-binding instruments and so-called ‘soft law’.

Chapter

Cover International Law

2. Sources of international law  

This chapter provides an overview of the legal sources in international law. Sources of law determine the rules of legal society and, like national legal societies, the international legal society has its own set of rules. The discussion begins in Section 2.2 with article 38 of the International Court of Justice Statute. Section 2.3 discusses treaties, Section 2.4 covers customary international law, and Section 2.5 turns to general principles of international law. Attention then turns to the two additional sources listed in article 38. Section 2.6 discusses judicial decisions and Section 2.7 examines academic contributions. Section 2.8 discusses the role played by unilateral statements. The chapter then turns to the issue of a hierarchy of sources in Section 2.9 and concludes in Section 2.10 with a discussion of non-binding instruments and so-called ‘soft law’.

Chapter

Cover Contemporary Intellectual Property

14. Trade marks 2: definition of a registrable trade mark, absolute grounds for refusal and invalidation, and revocation  

This chapter examines the definition of a registrable trade mark, absolute grounds for refusal or invalidation of a registered trade mark, the extent to which objections can be overcome through proof of distinctiveness acquired through use and the rules on revocation of a registered trade mark, both at national and EU levels. It examines these issues looking at many different kinds of trade mark, from traditional work marks and logos to so-called ‘non-conventional’ trade marks such as three-dimensional product shapes, sounds, smells, colours, and ‘position’ marks. The chapter reflects evolving legislation at an EU level (particularly the EU’s 2015 trade mark reform package), a rich base of case law, and links to the the theroetical debates seen in Chapter 13.