Can “Soft Law” be Regarded as International Law?

Can “Soft Law” be Regarded as International Law?

by Fajri Matahati Muhammadin

This article may be helpful for students who are learning the basics of international law, as non-conventional sources of international law (beyond Article 38 of ICJ Statute) like soft law is usually difficult to understand. Additional Important note: see below (after the essay, but before the References) for some important reflections towards this matter from an educational perspective.

Abstract

A typical classroom of introduction to international law in Indonesia law schools might normally be taught that ‘soft law’ is not really law as they are not binding. A very understandable stance in a legal tradition that is very strong in legal positivism. However, what will we find if we understand law as a tool to construct its subjects? What if, regardless its formal designation, certain instruments are actually followed by its subject similar to those formally designated to be legally binding? If we consider this, especially in context of international law, one may come to a very different conclusion to whether soft law is really international law or not.

Keywords: Soft law, Sources of International Law, Legal Constructivism

INTRODUCTION

The term ‘soft law’ is defined by Black’s Law Dictionary as ‘Int’l Law. Guidelines, policy declarations, or codes of conduct that set standards of conduct but are not legally binding’,[1] with the ‘non-binding’ nature to be the distinguishing characteristic from ‘hard law’ which is legally binding.[2] Soft law can take various forms, such as interstate conference declarations, United Nations General Assembly (UNGA) Resolutions, codes of conducts by international organisations, drafts by the International Law Commission etc.[3]

While such non-binding nature may easily imply that it is not a law (as will be elaborated in detail later), it will be shown later how soft law may have implications beyond its literal definition, therefore such a question will prove to be very legitimate: can soft law be regarded as international law? This essay will answer that question by explaining first what may constitute a law and then to examine whether or not soft laws are included in that. This method is a form of deductive analysis, known also as hypothetical syllogism.[4].

INTERNATIONAL LAW

A. A Common Ground in Definitions of Law: A Binding Nature

There are various definitions of the term ‘international law’. They may be differences in the scope that such law governs: some say it primarily applies to states (and other subjects are less clear),[5] others do are say it applies between states as well as between individuals equally,[6] others point that they may also include international organisations and other non-state entities,[7] which may be generalized as “law that applies to subjects of international law”.

Blacks Law Dictionary defines ‘law’ in the following words:

“…1. The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system… 2. The aggregate of legislation, judicial precedents, and accepted legal principles; the body ofauthoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them … 3. The set of rules or principles dealing with a specific area of a legal system…”[8]

Further, the word ‘rule’ is defined as follows:

“…an established and authoritative standard or principle; a general norm mandating or guiding conduct or action in a given type of situation.”[9]

The different definitions,[10] however, do not differ in stating that there should be a ‘rule’ or ‘law’ in it. One way or another, despite certain disagreements in certain aspects, all definitions agree that law must contain binding rules or obligations. If something that claims to be ‘law’ but does not contain binding rules, then it is not a law. This is a strictly positivistic legal view,[11] which are limited to the formalities of the law. It will later be shown that one cannot merely stick to this definition, as the understanding of law may be broader than mere formalities.

B. Classical Sources of International Law: Is The Definition That Simple?

There is no doubt that international agreements, customary international laws, and general principles of laws, are laws,[12] as they all provide binding rules obligations. However, is this all of how we understand what is law and what is not? As an illustration, let us make a detour on judicial decisions as ‘law’.

Using the simple positivistic legal understanding of law, the subsidiary sources of law (judicial decisions and scholar’s works) are not binding and therefore not a law.[13] However, extra attention may be needed in discussing past judicial decisions as source of law.

One thing that is very easy to be seen is that when parties adjudicated by a particular judicial body in a particular case, the judgment will create binding obligations[14] and therefore create laws towards the said parties.[15]What may be very intriguing would be the implications of such international judicial decisions as sources of law outside the dispute it settled. This may call for some additional understanding towards the definition of law in the previous sub-section.

The immediate and simple conclusion that one could make would be that judicial decisions are not binding, and therefore are not considered as law per se,[16] despite being persuasive authorities (very persuasive, in the case of ICJ judgments).[17] International law does not recognize the binding force of precedence, as clearly demonstrated by Article 38(1)(d) of the ICJ Statute (with reference made to Article 59 of the ICJ Statute) which clarifies the status of these judicial decisions as ‘subsidiary’ source of law.

However, it has been widely claimed that while formally courts merely say that they only apply the law,[18] in many cases, court judgments become considered as binding rules that the international world follows –and can therefore become laws as well.[19] While international law does not have any central authority to legislate or make laws, laws could be scattered here and there and therefore it is the court’s role to not only crystalize it by setting approaches in determining customary international laws,[20] but to also contribute in the “..crafting and ensuring consistency in contemporary international law”.[21]

To begin with, we see a trend of the ICJ settling its disputes while trying to also be consistent with its previous cases,[22] which whose judgements are often cited by disputing states and scholars as authoritative sources.[23] Then it could be seen how the Reparitions Case[24] became a very important milestone in determination of the international legal personality of international organisations.[25] In the area of international criminal law, we have the Celebici Case[26] as a milestone in understanding how to apply superior responsibility. It is a reality that these judicial decisions have actually become authoritative enough to be considered law.[27]

However, law making by international courts are not always successful. Instances also exist when they are abandoned instead, such as how the Lotus Case[28]was abandoned by the Convention on the High Seas of 1958, and the Icelandic Fisheries Case[29]was abandoned by the negotiations of UNCLOS III.[30] It is thus apparent that judicial decisions don’t always become laws. It will depend on the court’s exposure towards cases bringing new and disputed legal matters,[31] which the court’s respond to this is highly contributive towards the law, and then the acceptance of the international community will further legitimize it (those not accepted are “...marginalized, seen as exceptional, and have minimal law making effect”).[32]

Having all that said, there is a lesson to take from the reality of judicial decisions. While judicial decisions are traditionally seen as not a law because they are not formally binding, the reality shows that they can actually become laws despite their non-binding formal label. This reflects more of a constructivist school of thought that sees law not only on whether it is binding or not like the legal positivists, but also at the effects it carries out to the international community as a matter of implementation.[33] Under this train of thought, therefore, certain instruments that are not binding in a formal positivistic sense can actually be considered as law if the norms embedded in it are actually being followed by the legal subjects. It is this perspective that will be used to consider whether soft laws are laws or not.

SOFT LAW AND LEGAL OBLIGATIONS

As previously explained, soft laws are not per se laws according to a positivistic legal view as they are not binding. However, it will be shown that laws can indeed be found in soft laws.

A. Soft Law and Treaties

Treaties, which some scholars claim as the most important source of international law,[34] at times, would be faced with certain issues in their application and would therefore need to be interpreted. When an authoritative interpretation exists, which includes those agreed upon after the conclusion of the treaty (as per Article 31(1)(a) of the Vienna Convention on the Law of Treaties Between States 1969 [VCLT]), it should be read as integral part of the treaty for the ‘..purpose of its interpretation’.[35] Having that said, such an interpretation is an integral part of the law as well.

Sometimes, such agreement on interpretation could be made through hard law or separate agreement. An example to this would be the Anti Dumping Agreement[36] which is a subsequent agreement to interpret Article VI of GATT 1994 of the World Trade Organization (WTO). Making such an agreement is sometimes preferable, because it involves states directly committing themselves to the provisions, and has direct legal effects in national jurisdictions, and other benefits that come with hard laws.[37] However, there are some drawbacks in doing so, since the formal commitment is seen as more restrictive to the states, and makes for more lengthy and more fierce negotiation processes while sometimes change is needed faster –and soft law can accommodate that need.[38]

The question that need to answered in this essy now is whether or not soft law can actually replace hard law in serving the necessity of making these needed laws. As the facts will show, soft law actually can bring about the needed laws as well. An example would be the case of the International Covenant on the Economic, Social and Cultural Rights of 1966 (ICESCR).

The ICESCR does not specifically mention whether there is such a thing as ‘rights to water’. Article 11 and 12 essentially provides that everyone has adequate standards of living conditions and to enjoy the highest standards of such living. The articles mention food, housing, and general living conditions, but made no specific mentioning of water. While in 2000, the World Health Organisation (WHO) and the United Nations Children Fund (UNICEF) found that around 1.1 billion people did not have access to safe water and around 2.4 billion people live without sanitation.[39] Contrasting that fact with the very common knowledge that all humans need water, in 2002 the Committee on Economic, Social, and Cultural Rights (CESCR), which is the treaty body for the ICESCR, issued the General Comment No. 15 which interprets Article 11 and 12 of the ICESCR so that it includes the access to water as a human right under those articles.[40]

The UN Charter, specifically in Article 62 in describing the functions and powers of the UN Economic and Social Council (ECOSOC),[41] only says that the ECOSOC (and all committees under it) can only make recommendations. However, General Comment No. 15 especially in Chapter III does provide obligations of states and the international community with regards to ensuring access to water, effectively making it an integral part of the law.

It is not that simple to actually see the works of the CESCR as an authoritative interpretation, as it is a committee independent from states thus there is no agreement per se in making that interpretation. However, it has been a practice of states to accept the role of treaty bodies in being authoritative in making interpretations.[42] Not to mention, in case of the CESCR, its works are always reviewed by the UNGA that consists of almost all countries in the world.[43]

Another example of Soft Law becoming law would be the Codex Alimentarius. This is a compilation of international food safety standards issued by the Codex Alimentarius Commission, which was established by the UN Food and Agricultural Organization (FAO) and the World Health Organization (WHO).[44] The Codex Alimentarius itself is not a binding instrument, and is a form of soft law.[45] However, the WTO has adopted the Codex Alimentarius as a standard of food safety through the Article 3(4) of the Agreement on the Application of Sanitary and Phytosanitary Measures. Therefore it is now a part of the WTO laws binding to all its members (today reaching 159 members[46]), despite being originally formally soft law.

Even more, at times soft law can ‘defeat’ treaties as source of legal obligations. In 2001, the USA submitted a complaint to the WTO against Brazil for producing generic copies of certain materials used in the production of AIDS drugs, the patent for which was owned by some USA companies.[47] Allegedly, such a thing would have been a violation of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), but some exceptions could be made via Article 30 and 31 of the TRIPS.

However, the majority of the UN Commission on Human Rights (CHR) almost unanimously voted to endorse Brazil’s policy (except the USA, of course) through Resolution No. 2001/33. This resolution specifically mentions that the “access medications in context of pandemics such as HIV/AIDS” is a right. Further, it also has provisions which could be understood as to set aside strict patents in such situations.[48] After that, the USA dropped its claims.[49] Not only that this is due to the fact that the CHR works are generally acknowleged by the international community especially as shown by the overwhelming majority in the vote to adopt this resolution, but also the general international pressure to the USA with regards to this particular matter at the time.[50] This shows that now the right of access to medication in pandemics, which trumps patent laws, is integral in Article 12 of the ICESCR on rights to highest attainable standard of health (which the CHR Resolution noted in its preambulatory clause paras 1, 2, and 7).

B. Role of the UN General Assembly

Despite representing all members of the UN (today reaching 193 members[51]), the proposal to make UNGA Resolutions  as source of international law during the drafting of the ICJ Statute was rejected.[52] While it may be obvious that the UNGA Resolutions are not binding (as the UN Charter, Chapter IV under ‘functions and powers’, refers to them as ‘recommendations’) –ergo : soft law, the facts show that the role of the UNGA in making international law is undoubtedly very apparent.

Supported by at least a majority of the UN members (sometimes overwhelmingly or even unanimously), these resolutions can serve as an authoritative interpretation which is consequently an integral part of the law. An example of such can be observed in the example of defining ‘aggression’, where the UNGA can provide authoritative interpretations.

The word ‘aggression’ as a violation of peace that must be supressed and eliminated has been an very important part of the purpose of the United Nations as mentioned in Article 1(1) in its’ statute. However, the word itself has yet to be defined and has been subject to debate for a long time which necessitates the UNGA to come up with Resolution No. 2330 (A/RES/2330) to establish the Special Committee on the Question of Defining Aggression. In 1974, after deliberating on the results of that special committee, the UNGA issued Resolution No. 3314 (A/RES/3314) with a definition of aggression. This definition was later strengthened by an explicit reference to it in the Kampala Agreement which was adopted without a vote to amend the Rome Statute in 2010.[53]

Similarly, the word ‘friendly relations’ and ‘cooperation among states’ in Article 1(2) and 1(3) of the UN Charter was further defined in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States through the UNGA Resolution No. 2625 (A/RES/25/2625).

Furthermore, Resolutions of the UNGA have been used to determine what the customary international law is, most noticeably by the ICJ in the Nicaragua Case.[54] In determining whether or not the acts of the USA was in breach of interntional customary law, the ICJ largely focused on gathering the Opinio Juris, by referring to UNGA Resolutions as reflections upon which customary international law can be derived from even in the absence of a vast number of state practice.[55] They include: Resolution No. 2625 (A/RES/25/2625) and No. 2131 A/RES/20/2131, which mentions a duty to refrain from assisting civil strifes and armed bands in the territory of other states (drawing also upon a resolution by the General Assembly of the Organization of American States, not the UN, but also an example of soft law),[56] and Resolution No. 3314 (A/RES/3314) to use the definition of ‘aggression’.[57]

The same has been taken by the concluding international customary law from a wide array of UNGA Resolutions. In the field of state control of natural resources, there have been numerous UNGA Resolutions setting standards to it e.g. Resolution No. 3281 (A/RES/29/3281), No. 3201 (A/RES/S-6/3201), No. 3171 (A/RES/3171), and No. 1803 (A/RES/1803).[58] The Arbitrator for the Texaco v. Libya case[59] used these standards, especially that in the UNGA Resolutions No. 1803 (A/RES/1803) in determining the laws governing the dispute of exproppriation and the rule of ‘appropriate compensation’, noting that it was customary international law.[60]

Furthermore, UNGA Resolutions have been known to be able to conjure up laws that did not exist before. An example to that would be the Universal Declaration of Human Rights (UNDHR), adopted through Resolution No. 217 (A/RES/217). The horrors experienced throughout World War I and most especially World War II became a push for almost all states around the world to call for an international system to protect human rights better than before, which used to be generally just under national laws and some very few instruments of international law.[61]

The idea of human rights has started to appear in the UN Charter in Article 1(3) and a few others, but then it was the UNDHR that laid out the main set of human rights which was adopted without a vote. These were then further elaborated in a large number of legally binding conventions which are generally ratified by a very large numbers of states, which include but not limited to the International Covenant on Civil and Political Rights of 1966 (ICCPR), the ICESCR, the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 (CEDAW), the Convention on the Rights of the Child of 1989 (CRC), and so many others, all quoting the UNDHR in their preamble. It did take some lengthy years to for those ‘follow-up’ treaties to actually be drafted and then enter into force, but there is no doubt that the UNDHR was a law making instrument which was integral to the evolution of human rights law.[62]

This is not yet to mention the UNGA endorsement to soft laws issued by other bodies, such as the case of the previously mentioned CESCR General Comments and CHR Resolution, as well as the works of the International Law Commission (which will be explained in the next sub-section). Therefore there is no doubt that the UNGA resolutions can be law.

C. The International Law Commission

The International Law Commission is a commission set up by the Sixth Committee of the UNGA,[63] with purpose of codifying existing law and making progressive developments of law.[64] Both of those purposes are usually not exercised separately for two reasons:

–          The existing law can, to the states, be not satisfactory, unnacceptable, or outdated. Therefore on this point, there is a need to open the possibilities to progressively develop international law.

–          In the existing law, there are always some practices leaning towards the needed change anyways, so that the ILC can also use them as foundation to progressively develop international law.[65]

Members of the ILC are experts who are chosen from a wide array of geographical regions but are not delegates of their countries, and are elected by the UNGA (this done to contribute to its credibility as a body).[66] The ILC works are reported to the UNGA, to be followed-up in a few alternative ways e.g. recommending members to adopt as treaty or adopting through resolution.[67] Nothing makes their works formally binding per se, making them soft laws. However, observing the implications brought by the works of ILC, one cannot deny that these works can become law.

The best example on the success of ILC drafts to be adopted as a treaty would be the VCLT. It was drafted mainly by codifying existing laws, but added some new provisions as well e.g. provision on reservations, change of circumstances, and jus cogens.[68] There were also other new additions to the treaty by the states when the final draft was put to negotiation, e.g. Articles on consent to be bound, exchange of instruments, and material breach of humanitarian treaties.[69]

Now the VCLT has only 113 parties,[70] but a significant number of non-parties are applying it nonetheless. E.g. Indonesia cited it in a constitutional court judicial review,[71] and was highly referred to as what the law governing international agreements should be like in the academic draft for a new law on international agreement[72] (this law is still under deliberation to replace Law No. 24 of 2000, which does not mention the VCLT at all but its provisions are generally consistent with the VCLT). In the Icelandic Fisheries Case, in discussing matters on the effect of change of circumstances towards the obligations rising out of treaties (Article 62 of the VCLT).[73] This was despite the fact that the VCLT did not enter into force until 27 January 1980[74] which was around seven years after the case was even decided. This is because it has achieved the status as customary law,[75] which is evidence of success of the ILC in codifying and progressing international law.

Similar to this was the reference towards the Vienna Convention On Succession Of States In Respect Of Treaties of 1978 (VCSS) in the Gabcikovo-NagymarosCase as an unquestionable part of customary international law.[76] This was despite the VCSS only having 16 parties at the time of its entry into force (hardly a significant number compared to the rest of the world), which was one year before the judgment came out but in the middle of the proceedings of this case.[77] Not to mention, Hungary (a party to the dispute) was not even a party to the said convention, yet the ICJ still referred to it as binding source of law for its judgement of the case.

The Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001, which was adopted through UNGA Resolution 56/83 (A/RES/56/83), is an example of ILC’s soft law that (to this date) has never become a treaty, but it has been recognized as law. A very big evidence for this is the Gabcikovo-NagymarosCase, where the ICJ stated that “..the existence of a state of necessity must be evaluated in the light of the criteria laid down by the International Law Commission in Article 33 of the Draft Articles on the International Responsibility of States..”,[78] stating that the provisions were customary international law,[79] and therefore using it as a major reference to what the law is.

CONCLUSIONS

Leaning more to the view of a legal constructivist rather than that of a positivistic legal view, it is then very apparent that soft laws, despite its formal designation, can become law. Such way of viewing law (legal constructivist) sees law as a construction or direction towards the behavior of the subjects of that law, and therefore whether or not a law is followed by the subjects would be of a paramount significance. It has been shown through various examples (there are more examples that cannot be included in this essay) that soft laws have been referred to as law and consequently have been followed by states in a massive scale that it evolves into customary international law.

This so called ‘hardening’ of soft laws can come in many forms. It can happen due to its position towards a treaty, just like the Codex Alimentarius and the CESCR General Comments, it can happen through the support of the UNGA which might as well mean the support of almost the entire world, some by external bodies such as the ICJ, or other forms. However, soft laws have something in common with judicial decisions: they rely on the recognition of the international community. When the international community does infact have a trend in following them, be it out of voluntary practice or ‘legally imposed’ by judicial bodies, then yes: soft laws are laws.

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REFLECTIONS

Throughout the years of my teaching career, I have been discussing soft law in many of my classes, and alhamdulillah quite a number of my students have mentioned that they have benefitted from this article. However, just today (21 March 2020) a student asked me a question. She noted that there seems to be an inconsistency of my stance. This article seems to show that I am in favor of soft laws being law, while in class I seem to be rather negative towards soft laws. 

I addressed her concern. I told her that in class I said that soft laws are not always laws. Note that “soft law can be law” and “soft law is not always law” are not contradictory statements.

However, I also told her a short backstory about my experience regarding this issue and how it was a very important lesson. I then thought that perhaps I should share that story here so that all can benefit from it. So, shoutout to Shafa Femalea for asking this question!

This article was initially written in 2013 during my studies as an assignment for the Fundamental Issues in International Law class at the University of Edinburgh. The course was taught by Prof. Alan Boyle who’s picture is featured in this article above. His book (The Making of International Law) was an important reference for this article as you will find below in the reference section, and is a very recommended book. It must be noted that Prof. Boyle is so pro-soft law, he actually said something along the lines of “Of course it’s law, it would be senseless to think otherwise.”

Prof Boyle’s style of teaching was to open discussions, and when someone proposes an argument he usually follows up with other questions, often “chases” and “grills” that student forcing them to defend their point. I thought that was fun, although some of us did not really enjoy that lol.

Regarding soft law, we had a class discussion about this issue, where most of us argued “yes its law” mainly to just be on the good side of Prof. Boyle. Turns out that it was not so easy. Despite his stance on soft law, he actually could criticize and argue against students who said “yes its law” very well. In fact, some of these students actually went visibly pale haha yes I remember you (but I wont mention your name lol)!

So one lesson I got (out of so much more lessons which I can share perhaps elsewhere, inshaaAllah) from him was that, at least in an educational standpoint, in the end it is not necessarily important what your conclusion about soft law was. What matters is that you have managed to learn and understand enough in order to make a competent conclusion for yourself.

Prof Boyle praised my essay despite the “IF” in the stance I had, but knocked off some marks because he thought the “Classical Sources of International Law: Is The Definition That Simple?” sub-section was irrelevant (in retrospect, I still think the idea was relevant but I invested too much space on that sub-section so I went off-track too much). But he also praised other students who disagreed with him.

Even many years later after I graduated, most of my articles are quite critical towards soft law. For example, see my article on Qanun Aceh published in the Malaysian Jurnal of Syariah and Law (pages 17-19 are full of critics towards soft law). I also criticized soft law in a chapter I wrote for the anthology “Hak Asasi Manusia: Dialektika Universalisme vs Relativisme di Indonesia” (Edited by Al-Khanif; Herlambang P. Wiratraman’; and Manunggal Kusuma Wardaya, Published by LKiS Yogyakarta). I also wrote against soft law in an article I wrote in Republika, although I did not explicitly mention the term “soft law”.

These publications may make me seem totally against soft law, but that is  not true. My stance, as I mentioned a bit earlier, is “sometimes it is sometimes it isnt” so it depends on the situation. Those articles I wrote shows my critic towards some soft law which some (many?) people treat as law, while I disagree with those. But there are some soft laws which I agree to be law, such as the United Nations Environmental Program Code of Conducts and others.

If I myself have spent quite a large portion of my profession to disagree with people (in fact, in many cases I disagree with the mainstream), does it befit me to reject students who disagree with me? My duty is to explain what I think is correct, while also explaining the other opinions. I (and perhaps most people generally) may not do a good job in explaining opinions that I disagree with neutrally, but students at a university level are expected to not take their lecturers as sole source of knowledge.

What if they end up with a different conclusion from mine? Years before I met Prof Alan Boyle, I remember vividly that a lecturer (Im not saying who it is) said in my class “There are different opinions on this subject, and thats up to you. But for the exams, since this is my class, so you must follow my opinion.” He was someone who has taught be and provided foundation for the knowledge I am applying and benefiting from today, so I am grateful and I highly respect him. However, with regards to the aforementioned statement, I must say this: I am not like him.

This also goes to students who agree with my opinion. It is also possible to come to the same conclusion but without a proper understanding. That, despite agreeing with me, cannot deserve full (or any at all, depending how bad it is) marks.

So, in the end, it does not really matter whether soft law is law.

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REFERENCES

[1]Bryan A. Gardner (ed.). 2009. Blacks Law Dictionary (9th ed.). St. Paul, MN:West, p.1519

[2]Alan Boyle and Christine Chinkin. 2007. The Making of International Law. New York: Oxford University Press, p.213

[3]Ibid,

[4] Susanne Bobzien. The Development of Modus Ponens in Antiquity. Phronesis, Vol. 47, No. 4 (2002), pp.359-394, at 360

[5]See: Robert Jennings and Arthur Watts (Eds). 1992. Oppenheim’s International Law: Introduction and Part I (9th Edition). Essex: Longman, pp.16-17

[6]E.g. Philips C. Jessup, Found in Note 1, at p.892

[7]Malcom Shaw. 2008. International Law (Sixth Edition). New York: CambridgeUniversity Press, at p. 197

[8] Gardner, Note 1, at p.962

[9]Gardner,Note 1, at p.1446

[10]Compare with: Shaw,Note 7, at p.1; H.L.A. Hart in Raymond Wacks. 2006. Philosophy of Law: A Very Short Introduction. New York: Oxford University Press, p.28; Austin in Wacks, Note 10, p.23; St. Augustine in Mark C. Murphy. Natural Law Theory. In Martin P. Golding and William A. Edmundson (eds). 2005.The Blackwell Guide to thePhilosophy of Lawand Legal Theory. Oxford: Blackwell Publishing, at p.16, and Oppenheim in Jennings and Watts, Note 5, p.4

[11]Gregory C. Shaffer and Mark A. Pollack. Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance. Minnesota Law Review,Vol. 94, No. 3, (2010), pp.706-799,at p. 713

[12]See the Statute of the International Court of Justice (ICJ Statute), Article 38 (1) (a), (b), and (c)

[13]ICJ Statute Art. 38(1)(d)

[14]Direct quotation can be found in Shaw,Note 7, p.101

[15]ICJ Statute Art. 59

[16]Boyle and Chinkin, Note 2, pp.266-268

[17]David Harris. 2010. Cases and Materials on International Law (Seventh Edition). London: Sweet & Maxwell, p.43

[18] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, para 18

[19]For a deeper discussion on this, seeBoyle and Chinkin, Note 2, pp.278-285

[20] Ibid,

[21]Boyle and Chinkin, Note 2, p.268

[22]Harris, Note 20

[23]Shaw,Note 7, p.110

[24] Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174

[25] Philippe Gautier. , The Reparation for Injuries Case Revisited: The Personality of the European Union,

Max Planck Yearbook of United Nations Law 4 (2000), pp.331-361, at pp.331-332

[26]Antonio Casesse (Ed).2009. The Oxford Companion to International Criminal Justice. New York: Oxford University Press, at p.434

[27]Boyle and Chinkin,Note 2, pp. 293-296

[28]S.S. Lotus (Fr. v. Turk.),1927P.C.I.J. (Ser. A) No.10 (Sept. 7)

[29] Fisheries Jurisdiction (United Kingdom v. Iceland),Merits, Judgment, I.C.J. Reports 1974, p. 3.

[30]Boyle and Chinkin,Note 2, p.301

[31]Ibid at p. 269

[32]Ibid at p.301

[33]Shaffer and Pollack,Note 11, p.713

[34]Shaw, Note 7, p.94

[35]ILC Commentary on the Law of Treaties, found in : Boyle and Chinkin,Note 2, p.216

[36] Agreement On Implementation Of Article VI of the General Agreement On Tariffs And Trade 1994 (or GATT 1994)

[37]Shaffer and Pollack,Note 11, p.718

[38]Ibid,p.719

[39]WHO and UNICEF. 2000. Global Water Supply and Sanitation Assessment 2000 Report (http://www.who.int/water_sanitation_health/monitoring/jmp2000.pdf , accessed on 19 November 2013, at 5pm), at page 1

[40]CESCR General Comment No. 15, The Rights to Water, 2002 (E/C.12/2002/11)

[41]The CESCR is a subsidiary body under the ECOSOC to monitor the application of the ICESCR (see the UN Official Website, Subsidiary Bodies of ECOSOC, http://www.un.org/en/ecosoc/about/subsidiary.shtml , accessed on 19 November 2013 at 5.20pm)

[42]Boyle and Chinkin,Note 2, p.217

[43]See Article 13 and 62 of the UN Charter

[44]Codex Alimentarius Official Website. About Codex (http://www.codexalimentarius.org/about-codex/en/, accessed on 21 November 2013, at 8.21am)

[45]Shaffer and Pollack,Note 11, pp.756-757

[46]World Trade Organization Official Website. Members and Observers. (http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm accessed on 24 November 2013 at 9.51pm)

[47]Andreas Fischer-Lescano and Gunther Teubner. Regime-Collisions: the Vain Search for Legal Unity in the Fragmentation of Global Law. Michigan Journal of Internatonal Law, Vol.25 (2004), pp.999-1046, at pp.1024-1025

[48]See Operative Clause 4 of the CHR Resolution No. 2001/33

[49]Fischer-Lescano and Teubner, Note 47, pp.1028-1029

[50]Ibid

[51]United Nations Treaty Collection. Charter of the United Nations and Statute of the International Court of Justice (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-1&chapter=1&lang=en, accessed on 24 November 2013 at 9.24pm)

[52]Gregory J. Kerwin. The Role of United Nations General Assembly Resolutions in Determining Principles of International Law in United States Courts. Duke Law Journal,Vol.32, No. 4 (1983), pp876-899, p.879

[53]Annex I of the Rome Conference Resolution No. RC/Res.6 (2010)

[54] Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits,Judgment. I.C.J. Reports 1986, p. 14.

[55]Ibid,para 188

[56]Ibid,para 191-193

[57]Ibid,para 195

[58]Kerwin, Note 52, p.883

[59]Texaco Overseas Petroleum Compny v. The Government of Libyan Arab Republic (1977) 53 I.L.R. 389

[60]Ibid,para 87 (see also )

[61]Shaw,Note 7, p.271

[62]Boyle and Chinkin,Note 2, p.227

[63]ILC Official Page. Introduction (http://www.un.org/law/ilc/, accessed on 23 November 2013 at 11:47am)

[64]Article 1(1) of the Statute of the ILC

[65]Boyle and Chinkin,Note 2, p.174

[66]Ibid, pp.172-173

[67]Article 23 of the Statute of the ILC

[68]Boyle and Chinkin,Note 2,p. 190-191

[69]ibid

[70] United Nations Treaty Collection. Vienna Convention on the Law of Treaties 1969http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&chapter=23&Temp=mtdsg3&lang=en, accessed on 24 November 2013 at 2.10pm)

[71] Indonesian Constitutional Court Decision No. 36/PUU-X/2012, para 3.19

[72]People’s Representative Council Official Website. 2012. Naskah Akademik Rancangan Undang-Undang Tentang Perjanjian Internasional (http://www.dpr.go.id/uu/delbills/RUU_Naskah_Akademik_RUU_Usul_Inisiatif_DPR_RI_tentang_Perjanjian_Internasional_(masih_dalam_proses_Pembahasan_Tingkat_I).pdf, accessed on 24 November 2013 at 1.03pm)

[73]Icelandic Fisheries Case, paras 36-37

[74]See note 72

[75]Boyle and Chinkin,Note 2,p. 190-191

[76]Gabcikovo-Nagymaros Project (Hungary v. Slovakia),Merits,Judgment, 1. C. J. Reports 1997, p. 7, para 123

[77]United Nations Treaty Collection. Vienna Convention on State Succession in Respect of Treaties (http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-2&chapter=23&lang=en accessed on 24 November 2013 at 7.14pm)

[78]Gabcikovo-Nagymaros Case, para 50

[79]Ibid,para 51