Daniel Thürer, ‘Soft Law – Norms in the Twilight between Law and Politics’ in Daniel Thürer, International law as Progress and Prospect (Dike Verlag Ag, Zurich/ St. Gallen, 2009) pp. 159-178.
Thürer – International Law as Progress and Prospect
Background
Daniel Thürer is a Professor of Public International, European and Swiss Public and Administrative Law at the University of Zurich. He was a Government Expert for the total revision of the Swiss Federal Constitution from 1993 to 1999. In 2000, he was appointed member of the Independent Expert Commission Switzerland – Second World War: an International Commission of enquiry into the legal and historical aspects of Switzerland’s role before, during and after the Second World War. Thürer is a member of the International Committee of the Red Cross and has also been President of its Legal Commission since 1996. He is widely published on Public International law, European and Swiss Public law.
Daniel Thürer developed a holistic and comprehensive approach to constitutional law and international law, looking at both from, what he termed, a cosmopolitan approach in his collected works. The following text makes a contribution to the doctrine of soft law which in the twilight of international obligations (Oscar Schachter) has mainly been a product of the realist school (New Haven School of Jurisprudence) and has often been rejected by European scholars fearing American power politics in disguise. Thürer’s view builds upon the sociological tradition of Swiss scholarship which evolved since its inception by Max Huber.
Summary
The text is a chapter from Daniel Thürer’s book International Law as Progress and Prospect. The chapter deals with the phenomenon of soft law and its role in international relations. Thürer places soft law as a social norm existing somewhere between purely moral commitments and strict legal obligations. These extra- or paralegal norms can be found in all fields of law, but they are of particular importance in international relations given the overlap of generations and philosophies of international law. While there is no agreement about the precise character of social norms it can be accepted that norms represent the expectations held by a certain community.
Thürer describes soft law abstractly as covering all those social rules generated by States or other subjects of international law which are not legally binding but which are nevertheless of special legal relevance. He cites resolutions of international organisations and non-binding inter-State agreements as the two categories that soft law falls into in the international stage. The current body of soft law generally is created by subjects of international law and expresses common expectations concerning the conduct of international relations as it is often shaped by the framework of international organisations.
Thürer notes two fundamental challenges posed by the soft law phenomenon. The first is that the concept itself suggests that there is no distinction in international relations between social norms of a legal and non-legal character something which is inconceivable from a juridical point of view: a norm is either legally binding or it is not. The second challenge Thürer identifies is whether soft law should be added to the three traditional sources of international law. He argues that international organisations exist which provide a framework for harmonising legal opinions and can work out legal projects in a relatively short time and that there is no need to acknowledge soft law as an independent fourth source of international law.
Despite its limitations Thürer sees soft law as an important piece of the international law regime, which can represent a step in its evolution that can lead to the establishment of norms or elaboration of areas not yet covered. Thürer concludes that the term soft law lacks precision and is to some extent misleading by blurring the line between binding and non-binding norms in international relations. In spite of this and the fact that it lacks binding force he asserts that it is an important phenomenon that can advance international law.