Background paper for the Country-Led Initiative in Support of the UNFF “Scoping for a future agreement on forests”
Berlin, Germany 16-18 November 2005.
by
Richard G. Tarasofsky
Head, Energy, Environment and Development Programme
Chatham House
Lauren Flejzor
PhD. Candidate, London School of Economics and Political Science
Energy, Environment and Development Programme
Chatham House
10 St James Square, London SW1Y 4LE, UK
www.chathamhouse.org.uk/eedp
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© Royal Institute of International Affairs 2005
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Credit: © Royal Institute of International Affairs 2005
Executive Summary
This background paper aims to inform the discussions at the Country Led Initiative in Support of the UN Forum on Forests (UNFF) “Scoping for a future agreement on forests”, in Berlin, Germany, 16-18 November 2005. The paper surveys and analyses various non-binding “soft law” instruments in the international system, outside the forest sector, and confirms that, given an appropriate context and operational capabilities within a given sector, soft law can be an effective way to express an international consensus.
The paper begins by setting forth the context in the UNFF where such instruments have been mooted.1 It then examines more deeply what is meant by “soft law”, and reveals its sometimes complex relationship to “hard law”. A detailed examination of ten non-binding instruments then follows, to shed light on the general approach to developing such instruments (including the main motivations), their format, the types of responsibilities they set forth, the degree of detail they contain, and their measures to ensure effective implementation. The paper ends with a consideration of some key lessons that have been learnt about these instruments and identifies a set of general factors that contribute to a non-binding instrument’s ultimate success.
Background and Context: recent discussions at the UNFF
Some UNFF members have recently proposed developing new “soft law” for the forest sector. In particular, it has been proposed that an instrument that is “not legally binding but requires member states to actively subscribe to it in order to demonstrate their political commitment”2 would be a useful step forward. Such a voluntary code on sustainable forest management (“SFM”) could, inter alia, establish global goals for SFM; provide the basis for the formulation of national targets; be action oriented and focus on the implementation of agreed actions; provide guidance at the regional and national levels; and contain commitments to strengthen funding at the national and international levels.3
At UNFF-5, in May 2005, a number of proposals were tabled on the formation of a voluntary code. Views diverged on a range of issues, including the status and content of such an instrument, as well as its link to financing. While UNFF-5 did not lead to concrete policy outcomes in May 2005, the final report included draft text on forming a voluntary code/guidelines/or international understanding on the “management, conservation and sustainable development of all types of forest”.4 Some elements of such an instrument were outlined in a draft terms of reference, concerning the purpose, process and topics to be included.
Box 1. Terms of Reference for developing a voluntary forest code/guidelines/international understanding5
Purpose: The purpose it to articulate international forest related agreements on the management, conservation and sustainable development of all types of sustainable forest management and to help achieve the goals decided upon at the fifth session of the UN Forum on Forests.
Process: The process of developing the voluntary code/guidelines/international understanding will be integrated into the future multi-year programme of work of the Forum.
Possible topics to be included: Title and purpose; reaffirmation of existing agreements; relationships with other international instruments; cooperation; implementation; monitoring and reporting; and provision for review.
The box above leaves open the possibility of including a range of modalities to achieve the four international goals provisionally agreed at UNFF-5.
What is “soft law” and is it useful?
The application of “soft law” instruments has become increasingly popular in the international policy community, especially in the last twenty years. “Soft law” instruments provide states with room to manoeuvre where there are conflicts over goals and standards.6 Thus, “soft law” may be a useful compromise in situations where an agreement is desired, but a legally binding one is difficult to achieve.
However, critics of soft law note that “hard law” is the only sure way to achieve set objectives and that non-binding – rather than legally binding – instruments are more difficult to implement.7 Tsamenyi et al note that a “key problem associated with voluntary instruments is their non-binding nature, which can and does significantly impede the effectiveness of the instruments due [to] the lack of legal force they carry”.8 Nonetheless, in some instances, soft law instruments have led to effective outcomes. Some experts go on to suggest the “distinction between hard law and soft law is less a dichotomy than a continuum, while maintaining the core, distinctive features of each”.9
There are a variety of titles for non-binding legal instruments: e.g. codes of conduct, guidelines, undertaking, and memoranda of understanding. The title is not in itself the determinant of its legal or political weight. Even if an instrument bears a title that is similar to non-legally binding instruments, it may ultimately be considered legally binding if its content so suggests. According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties, a treaty is:
“an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”;
An example of this is in Qatar v. Bahrain, where the International Court of Justice ruled that signed minutes of a meeting were legally binding, having regard to the terms and the particular circumstances in which it was drawn up.10 On the other hand, not only is the OECD Arrangement on Export Credits intended to be non-binding, but it is clearly stated in the text that the instrument is only a “Gentleman’s Agreement”.
It may also be the case, however, that a non-legally binding instrument contains some binding elements. For example, the Non-Legally Binding Authoritative Statement Of Principles For A Global Consensus On The Management, Conservation And Sustainable Development Of All Types Of Forests (UNCED Forest Principles) is expressly non-legally binding – according to its title. Nonetheless, some elements in this instrument may reflect customary international law, such as Principle 1(a), 11 and therefore are legally binding. Such instruments may also reflect opinio juris, one of the constituent elements of customary international law.
In other cases, non-legally binding instruments contain provisions that also appear in treaties. Thus, these provisions are legally binding on those states that are party to those treaties. In still other cases, treaties can “harden” provisions in non-binding instruments by obligating parties to implement the standards that they set out.12 There are also provisions in some treaties that allow for dispute settlement of non-binding norms.13
Therefore, soft law is often not completely distinct from hard law and indeed, the relationship between the two in a given sector may be dynamic.
Survey and Analysis of Non-Legally Binding Instruments
This section contains a detailed survey and analysis of the following international instruments:
International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (“Instrument on Small Arms”)
FAO Code of Conduct for Responsible Fisheries (“FAO Fish Code”)
Financial Action Task Force’s Anti-Money Laundering Recommendations (“FATF Recommendations”)
International Undertaking on Plant Genetic Resources for Food and Agriculture (“International Undertaking”)
UNESCO Code of Conduce for Social Sciences Research (“UNESCO Research Code”)
International Atomic Energy Agency (IAEA) Code of Practice on the International Transboundary Movement of Radioactive Waste (“IAEA Code on Radioactive Waste”)
The Hague Code of Conduct against Ballistic Missile Proliferation (“Ballistic Missiles Code”)
Kimberly Process Certification Scheme (“Kimberley Process”)
International Code of Conduct on the Distribution and Use of Pesticides (“FAO Pesticides Code”)
Conference on Security and Cooperation in Europe Final Act (“Helsinki Process”)
These instruments are analysed with reference to a number of parameters detailed below. Information available from the literature was supplemented by non-attributable interviews with secretariats and governments. These instruments were selected because they represented a useful cross-section, both inside and outside the UN system. But since the selection is not exhaustive, there are occasional references made to other non-binding instruments, which were not thoroughly assessed.
The general approach taken in developing the instrument
There are a number of motivations that states have in establishing a non-binding legal instrument. These include:
1) Because a legally binding instrument is not politically feasible and a non-legally binding instrument was considered better than nothing. For example, in relation to the Instrument on Small Arms, many UN States did not want a another treaty or Protocol to the UN Convention Against Transnational Organized Crime as negotiation and ratification of treaties and protocols were considered too time consuming.14 Another example is the International Labour Organization, which decided to emphasise non-binding instruments to counter the low and declining rate of ratification of its draft conventions.15
2) To act quickly. This was evident in the formation of the FAO Fish Code. The political atmosphere was conducive to rapidly galvanizing consensus in the face of troubling fisheries statistics in the early 1990s. However, the development of the Instrument on Small Arms illustrates that speed is not always achieved in such negotiations – in that case the process spanned many years.
3) The creation of a preliminary, flexible regime that can be further developed.16 This appears to be the case with the International Undertaking, which was fairly rudimentary at the outset, but stimulated the establishment of a fuller system on genetic resources for food and agriculture.
4) Avoids need for ratification, which could ultimately derail its entry into force. These concerns motivated the developers of the Helsinki Process and the Ballistic Missiles Code.
5) To push the boundaries of current law. For example, the outcome of the Copenhagen CSCE Conference on the Human Dimension exceeded human rights norms at that time.
6) The tradition in a sector is for non-binding instruments. The Hague Code of Conduct against Ballistic Missiles grew out of, and complements, the Missile Technology Control Regime by specifically addressing the issue of ballistic missiles. The Missile Technology Control Regime is an informal and voluntary association of countries which share the goals of non-proliferation of unmanned delivery systems capable of delivering weapons of mass destruction, and which seek to coordinate national export licensing efforts aimed at preventing their proliferation.17 The initiators of the Kimberley Process were of the view that it should build upon the voluntary self-regulating initiatives of the diamond industry.
7) To complement a field of binding legal instruments. The FAO Code of Conduct for Responsible Fisheries was the first voluntary instrument adopted for the fisheries sector. It is meant to complement a host of other, legally binding, instruments, which fit in with a wider regime. The Code was adopted by consensus in FAO and negotiated in a manner similar to treaties. It interprets and amplifies some aspects of UN Convention on the Law of the Sea and the Straddling Stocks Convention. In addition creating a code ensured a prompt outcome, since it seemed more politically feasible and less time consuming than forming a treaty on the issue.
Many non-binding instruments are adopted under the auspices of international organisations. For example, the International Undertaking was adopted as a Resolution of the FAO Conference. In such cases, these instruments tend to be aimed, at least in the first instance, at the membership of such organisations. Sometimes, the way an organization adopts an instrument places its political and legal status in doubt. For example, the IAEA Code on Radioactive Wastes was approved in 1990 by a Group of Experts, who had a mandate from the General Conference to work on a code. However, the General Conference did not subsequently adopt it.
Similarly, an instrument adopted by only a few states will generally be aimed at only those states. In other cases, instruments adopted by universal bodies, such as those emanating from the UN General Assembly, tend to be aimed at all states or others. Examples of this include the UNCED Forest Principles, the Universal Declaration on Human Rights, and the Global Compact.
Non-binding legal instruments are adopted in a number of ways, which can be significant for their ultimate legal effect. Indeed, although some attributes of treaty development may not be present – e.g. full powers or a diplomatic conference – the elaboration of some non-binding instruments can involve similar negotiation approaches.18 The development of the Ballistic Missile Code is instructive in this regard. It emerged out of a pre-existing Missile Technology Control Regime. In 1999, MTCR partners began consultation on the Code, initially with MTCR and then with non-MTCR states. Once it became apparent that they had a “critical mass” of States that would support a Code, they agreed at Ottawa in 2001 to universalize a draft text through a transparent and inclusive negotiating process open to all states. France hosted the first negotiation session, which was attended by participants from more than 70 countries. Spain hosted the second session, by which time the participants had grown to more than 90 countries. The draft Code was launched in The Hague in November 2002.
Sometimes these instruments are adopted after a wide consultation. The FATF first developed its Recommendations in 1990, then again in 1996 and 2003. The FATF Revised Recommendations (2003) were formed after extensive consultations with regional private sector and non-governmental organisations, a measure that is seen as key to ensuring their implementation on a regional basis.
In some cases, initiatives to develop, modify or strengthen an instrument come from outside bodies. For example, Agenda 21 contains a reference to “possible mandatory applications” through “legally binding instruments” in the context of the Prior Informed Consent (“PIC”) procedure for chemicals and pesticides.19 This helped generate political will inside the FAO, which then decided to develop an international treaty on that issue. Another example is that the development of the Kimberley Process certification scheme was given encouragement and legitimacy through a UN General Assembly Resolution.20 The states involved were encouraged to report detailed proposals on the certification scheme. In addition, the commitment was made for the General Assembly to include in its provision agenda for the following session an item entitled “the role of diamonds in fuelling conflict.”
Format of the instrument
There is no set format of non-binding instruments, although certain elements tend to appear often. The Instrument on Small Arms is typical. It contains: a preamble; general provisions (which represent a statement of purpose); definitions of key terms; detailed commitments, inter alia, on marking provisions (by manufacturer and export/import points), record keeping, cooperation in tracing; and implementation and follow up actions.
The language adopted in such instruments is also important for understanding the weight of commitment. For example, the use of the terms such as “should” or “endeavour to”, which are common in many instruments, appears less of a commitment than providing that states “should ensure “the “code is to be”.21 When an instrument is adopted by an international organisation, some non-legally binding instruments use mandatory language in relation to the tasks that organisation is to carry out.22
Some instruments are supplemented by other instruments, which add to or clarify their interpretation. For example, as a follow up of the Code of Conduct for Responsible Fisheries, several Plans of Action were adopted.23 In addition, a series of technical guidelines were prepared by the FAO secretariat to assist in implementation. In the case of the International Undertaking, three resolutions containing “agreed interpretation” of contentious issues were adopted.
Rules for subscription/membership
Most non-legally binding instruments, either implicitly or explicitly, are open-ended as regards subscription or membership. In some cases, it would appear that the instrument is aimed at members of the organisation under whose auspices the instrument was adopted. A few instruments contain provision for subscription or membership.
In the case of the Kimberley Process, only states that are full members are entitled “Participants”. “Applicants” are states that aspire to become Participants, but have not met minimum requirements yet. The Process is open to all Applicants, without discrimination. “Observers” are from industry and civil society – three main ones are the World Diamond Council, Global Witness, and Partnership Africa Canada. Participants, industry and civil society participate in working groups (e.g. monitoring, diamond experts, and statistics) and committees (participation committee and selection committee). The Chair is from a Participant and is elected by the Participants. He is tasked with overseeing the implementation of the Process – i.e. it is a government representative
Researchers with UNESCO MOST programmes were required to sign the UNESCO Research Code as an attachment to their UNESCO research contracts.
The Ballistic Missiles Code is open to voluntary subscription by all countries. 24 States make “politically binding commitments to curb the proliferation of WMD-capable ballistic missiles and to exercise maximum restraint in developing, testing, and deploying such missiles”.25 Those states which seek to adhere to this need to send a letter to the Immediate Central Contact (“ICC”) (currently Austria), stating their desire to subscribe to the Code. However, there are no verification or inspection measures associated with the Code and no sanctions.
The International Undertaking refers to “adherents”, which can be states or institutions, as defined by the instrument, although at the time of adhesion, these are to advise on the extent to which they are able to comply with the Principles of the Undertaking.26 Not all countries adopted it, even though it was based on accepted principles of international law at the time. As a result, some countries entered “reservations”,27 out of concern that the International Undertaking was not fully compatible with their domestic systems for plant genetic resources. However, the subsequent resolutions containing the “agreed interpretations” were all adopted unanimously.
The FATF Recommendations are to be implemented by all FATF members, which includes any OECD member state or other ‘strategically important’ country or territory that communicates its desire to become an FATF member. International organisations can join the FATF, but are considered observers rather than members. All prospective members supply a letter of political commitment, for instance, through a Prime Minister or Minister of Finance. Applications for membership are endorsed and adopted during FATF meetings.
Sometimes the membership in restricted instruments is the subject of political negotiation. For example, the original proposal for the Helsinki Process by the USSR in 1960s was for a conference on security in Europe, which would include all European states. Western Europe agreed, but insisted that Canada and the US also join. Thus the conference became open to those states as well, although such states could elect to be observers instead of participants.
Finally, part of an instrument may be open to membership. For example, the PIC procedure under the Pesticides Code provided that countries were to notify the FAO of their national designated authority. By 1997, 154 states had elected to participate in the PIC procedure and had appointed 219 designated national authorities. Although this operated as a de facto subscription mechanism, the FAO’s own surveys of countries revealed that despite the high level of compliance with the provision on designating national authorities, there was less compliance with the PIC procedure itself.
Types of responsibilities set forth
In the main, these instruments outline responsibilities of governments. Sometimes they also include responsibilities of international organizations, and sometimes they aim to have an even wider reach.
For example, the FAO Code on Pesticides addressees are: international organisations, governments of exporting and importing countries, industry, and public sector organisations.28 Accordingly, some responsibilities are shared between governments and international organisations29 and governments and industry.30
Given that the Fish Code applies to all fish, it contains detailed provisions aimed at the different categories of states – i.e. flag states and port states. One of its plans of actions, the International Plan Of Action to Prevent, Deter And Eliminate Illegal, Unreported And Unregulated Fishing (“IPOA IUU Fishing”) goes into further detail, including specifying measures for coastal states.
Manufacturers as well as governments at the national level have responsibility for implementing the provisions of the Instrument on Small Arms. Manufacturers have the responsibility under state “jurisdiction or control” to provide either the name of the manufacturer, the country of manufacture and the serial number, or maintain any alternative user-friendly marking with simple symbols in combination with a numeric and/or alphanumeric code.31 Under tracing provisions for arms and light weapons, states who are subscribers to the statement can initiate tracing requests “in relation to [illicit arms/weapons] found within its territorial jurisdiction”.32
Non-binding instruments occasionally aim their provisions purely at non-state actors. An example of this is the OECD Guidelines for Multinational Enterprises, which are aimed directly at such companies.
Degree of detail regulated
The soft law instruments surveyed reveal a wide range of detail. All of them contain general principles, some of which may be drawn from existing or emerging international law. Most instruments go on into considerable detail regarding definitions, information exchange, regulation of specific transactions, technical aspects, etc. The formulations often reflect delicate balancing of interests, which will impact on their ultimate impact on the ground. For example, the Pesticides Code applies a life cycle approach and wide definition of Integrated Pest Management (“careful consideration of all available pest control techniques and subsequent integration of appropriate measures…..”) but still leaves discretion to parties to determine what is “economically justified” and how to “reduce or minimise risks to human health and the environment”. However, phrases such as “least possible disruption to agro-ecosystems” also suggest a high standard is to be achieved.
The main purposes of the Ballistic Missiles Code are to build confidence and facilitate information exchange. Accordingly, the Code is based on broad principles rather than detailed provisions. Subscribing states use annual reporting mechanisms to outline their ballistic missile policies and the “number and generic class of Ballistic Missiles launched during the preceding year”.33 Subscribing states are also required to alert other states before conducting ballistic missile launch tests.
Some instruments specifically provide for legislative action. It is not uncommon for them to call for the adherence to legally binding rules. For example, the Fish Code calls for States to accept the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Vessels Fishing in the High Seas.34 It also specifies how the Code is to relate to some legally binding instruments, such as the UN Convention on the Law of the Sea and the rules of the World Trade Organization. Such instruments also call for domestic legal action. For example, the FATF Recommendations urge members to take legal measures including to: “(a) identify, trace and evaluate property which is subject to confiscation; (b) carry out provisional measures, such as freezing and seizing, to prevent any dealing, transfer or disposal of such property; (c) take steps that will prevent or void actions that prejudice the State’s ability to recover property that is subject to confiscation; and (d) take any appropriate investigative measures”.35
In some cases, the instruments direct states on their law and policy-making process. For example, the Fish Code urges that fishers and fish farmers be involved in this process.36
They also can provide for the creation of nationally specific frameworks. For example, the International Plan of Action For Reducing Incidental Catch of Seabirds In Longline Fisheries calls on states to adopt a national action plans on seabirds.37 Technical guidelines were developed which contain the elements for such national plans.
The Kimberley Process contains considerable detail in relation to its transactions. It includes a set of definitions, provides for a certificate, which is to accompany shipments of rough diamonds, the internal control measures that Participants are to carry out, including designating importing and exporting authorities, as well as on cooperation and transparency. Annex I contains detailed provision regarding the certificates, including minimal requirements, while Annex II contains recommendations governing internal controls, including over diamond mines, participants in and processing of trade. Similarly, the 1990 version of the FAO Pesticides Code contains very specific procedures were set out for importing and exporting governments, FAO and UNEP, in relation to the PIC procedures.
Non-binding instruments may be technical – e.g. the Kimberley Process – but others may have technical aspects dealt with separately. This latter approach was adopted by the Fish Code, whereby technical aspects are set out in various Technical Guidelines that were developed after the adoption of the Code (e.g. fisheries operations, ecosystem approach, precautionary approach). These guidelines are detailed, aimed at states and others involved in the fisheries sector) – developed by FAO, as requested in the Conference Resolution adopting the Code.
Some instruments create procedures for further decisions to be taken. The Kimberley Process Certification Scheme is buttressed by communiqués issued by the Participants plenary meetings, which take decisions around the workings of the Process (e.g. establishing working groups) and various technical matters (e.g. packaging and security aspects of the scheme). Related to this is the structure established for decision-making. For example is the creation of the FATF as an ad hoc body, which is considered an effective mechanism because it is a “task force” of experts, rather than an intergovernmental body.38
Measures aimed at ensuring effective implementation
The subsections below describe some of the methods that soft law instruments use to enhance their implementation.
Monitoring, reporting, verification
The Kimberley Process provides for annual reporting by Participants, which are considered by the Working Group on Monitoring. Others can make submissions on the implementation, but Participants are also granted right of reply. The Kimberley Process’s reporting provisions are buttressed by Review Visits. This is a peer review mechanism established in 2003, as demanded by non-governmental organisations (NGOs) and some governments. As noted at the time, the criteria for participation was that the necessary laws were in place, not whether they were actually being implemented. These missions are to be conducted in an analytical, expert and impartial manner with the consent of the participant concerned. The size, composition, terms of reference and time frame of these missions should be based on the circumstances and be established by the Chair with the consent of the Participant concerned and in consultation with all Participants.39
FATF countries/territories report on implementation using a self-assessment process. Countries/territories respond to a standard questionnaire on the Recommendations and FATF analyses the responses. To help with this assessment, a formal Anti-Money Laundering/Combating Terrorist Financing Methodology was developed to guide the assessment of compliance with the Recommendations. As a second step, the FATF (selected experts from other member governments) conduct an on-site visit to conduct assessments on effectiveness and improvements needed.40
In respect of the Ballistic Missiles Code, annual reports are submitted to the ICC, which has the responsibility for collection and dissemination of information. Regular international meetings are also held in support of the code to “define, review and further develop the workings of the Code”.41 There are no penalties for non-reporting or non-compliance under the Code.
The Pesticides Code invites governments, industry and NGOs to report on the implementation of the Code to the FAO Director General.42
The FAO regularly conducts surveys on the Fish Code and considers the results in the FAO Committee on Fisheries.
The International Plan of Action on IUU Fishing calls on States and regional fisheries management organizations to report on their implementation of the Plan to the FAO.43
Compliance and dispute prevention
The Kimberley Process includes a provision on compliance and dispute prevention, based on dialogue.44 In addition, the Process allows Participants to “inform another Participant through the Chair if it considers that the laws, regulations, rules, procedures or practices of that other Participant do not ensure the absence of conflict diamonds in the exports of that other Participant.45 The Fish Code also calls on States to prevent disputes.46 In the event a dispute occurs, it is to be resolved peacefully in accordance with rules of international law or as otherwise agreed between the parties. The Code also encourages states in this situation to enter into practical provisional arrangements.
Penalties and suspension of membership
Most instruments do not contain penalties for non-compliance, but a few do. The Kimberley Process has taken decisions concerning the trade from Participant countries – e.g. decision not to accept Kimberley Process certificates from Cote d’Ivoire in 2004 and the decision to remove The Democratic Republic of Congo from the Process in 2004. In the case of the FATF, penalties for not reporting range from the issuance of interim progress reports during plenary meetings to suspension of FATF membership of a non-complying country. In addition, the FATF can suspend members that do not implement the four tiers of its Recommendations.
Linkages to decisions in external bodies
Decisions in external bodies can raise the profile of such instruments. The Kimberly Process has been buttressed by UN Security Council taking decisions regarding the diamond trade and linking that to the Process.47 In addition, the Chair generally reports on progress to the UN General Assembly, to feed into the UN General Assembly’s annual resolution on conflict diamonds.
FATF Recommendations have been raised on the political agenda, most recently through UN Security Council Resolution 1617 (2005) as a international standard setting approach to combating money-laundering.48 At present, the UN Counter-Terrorism Committee has expanded its work on compliance with FATF Recommendation, including as they apply to UN Security Council Resolution 1267.
Outreach
The Pesticides Code calls for the Code to be brought to the attention of all concerned with manufacture, marketing and use of pesticides.49 This is particularly appropriate given that the information provision and labelling called for in the Code is dependent on action by those actors.
Support by international organisations
Since many instruments are adopted under the auspices of international organisations, the support of these institutions can be vital. The role of FAO, in cooperation with UNEP, in reviewing the effectiveness of the Pesticides Code and helping further developments was instrumental. It has been asserted that joint implementation by FAO and UNEP avoided inefficiency and leveraged benefit from combined expertise in relation to the old Code.50 For example, the FAO and UNEP created a joint Group of Experts on PIC to advise the secretariats of both organisations.
Financial and technical assistance
Although there may be references in non-binding instruments to financial and technical assistance, most do not contain mechanisms to provide substantial financial or technical assistance. However, there are some exceptions.
The Conference Resolution adopting the Code requests FAO to provide programme and budget for providing advice to developing countries in implementing the Code and a facility for external assistance to developing countries in implementing the Code. Further, the FAO is to strengthen regional fisheries bodies, many of which are under FAO auspices. However, current problems with the Code’s implementation include the FAO Fisheries Division’s partially funded mandate to carry out work associated with the Code.51
The ILO has developed a follow-up procedure in relation to its Declaration on Fundamental Principles and Rights at Work. This procedure enables the secretariat to request reports from countries that have not ratified all the ILO fundamental Conventions, which inform the decisions taken on priorities and plans for technical cooperation.
Review meetings
Review meetings can be especially important where there is no separate secretariat. Biennial meetings for those involved in the Instrument on Small Arms are held to report on national level experiences and measures taken on international cooperation and assistance, and to review progress on the mechanism under the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects.
Lessons learnt
The implementation record of the soft law instruments surveyed above is mixed. Some instruments were considered a success and are no longer applied. The UNESCO MOST programme was discontinued after a six year time frame. This Code could be considered a success, since it fulfilled a specific need required at the time and no complaints were raised in association with research undertaken in UNESCO MOST programmes.52 Additionally, the UNESCO Code was applied to other networks, and discussions of a larger code for the scientific community are currently underway.
For many others, challenges lie in improving implementation and compliance. For others, which have subscription provisions, the current challenge is to increase the number of subscribing states (e.g. the Ballistic Missiles Code).
However, the lack of capacity building measures can be a major hindrance to the impact of such instruments. For example, experts suggest that manufacturers will not have a difficult time complying with the provisions of the Instrument on Small Arms, since most are already required to mark and report the weapons they produce. The key implementation issue for the Instrument at present is increasing developing country capacity to formulate tracing requests and create reports. A system to address this is not yet in place.53
Some of the more successful instruments have triggered further international developments in their sector. The International Undertaking is credited with a number of major achievements in implementing the Global System.54 One was the establishment of the International Network of Ex Situ Collections under the auspices of the FAO. By 1994 the 12 centres of the Consultative Group on International Agricultural Research (CGIAR) with gene banks concluded a series of agreements to place their germplasm collections under the auspices of the FAO, which became the cornerstones of the International Network. It meant that almost 450,000 accessions of plant varieties, including the information about them, were made available for plant breeding and direct use, while the accessions make up between 20 and 50 per cent of all genetic material conserved in gene banks. Another is the establishment of the World Information and Early Warning System on Plant Genetic Resources for Food and Agriculture to foster information exchange among FAO member States.
In some cases, it becomes evident that an instrument needs to be adapted, though subsequent instruments and modifications. For example, the Pesticides Code was revised twice. In 1990 it was amended to include the “prior informed consent” procedure. This was considered necessary because the original Article not sufficient to protect interests of developing countries, which did not have the capacity to control trade in chemicals that have been banned or severely restricted in exporting countries. The World Commission on Environment and Development and the FAO Conference in 1987, which decided to include PIC in the Code, endorsed this view. An expert consultation took place in 1988 and a government consultation in 1989. The result was that the PIC provisions were codified in the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. In 2002, it was amended again and now encompasses a comprehensive approach to pesticide management, in the context of chemical management and sustainable agricultural development. It was also renamed as the International Code of Conduct on the Distribution and Use of Pesticides.
In other cases, these instruments were considered fundamentally insufficient for their purpose. The solution was sometimes the “hardening” of the law. This occurred, for example, in the case of the International Undertaking. Once the CBD was adopted, which established a regime on access to genetic resources, it was clear that the International Undertaking needed fundamental revision. The Conference that adopted the CBD called for a resolution of various lacunae relating to the use of ex situ collections and farmers rights; this was reinforced by Agenda 21 and then taken up by the FAO Conference, which authorised the process of revising the Undertaking. These negotiations led to the 2001 adoption of the International Treaty on Plant Genetic Resources for Food and Agriculture. Similarly, elements of the IAEA Radioactive Waste Code of Practice were included in the Joint Convention on the Safety of Spent Fuel and the Safety of Radioactive Waste Management.
Sometimes the further development of an instrument does not strengthen it. The Ballistic Missiles Code was updated in 2002 to reflect “less explicit references to existing disarmament and non-proliferation treaties, as well as the introduction of looser language with respect to the Code’s ‘obligations’ and ‘incentives’”.55
Final Remarks
The survey above reveals that there is a wide variety of non-binding instruments, their form, content, and impact. In her conclusions of a multi-year research project on “soft law” carried out by the American Society of International Law, Professor Brown Weiss set forth a number of factors that will impact on their effective implementation: number and type of actors involved, clarity of provisions, monitoring mechanisms, wider international political environment, and country specific capacities.56 More fundamentally, she identifies the following as contributing to their ultimate success:57
The force of the continuing relationship among participants. Several of the instruments considered above, such as the Kimberley Process, establish meetings, working groups, and reporting/review processes. Having the instrument anchored in an international organisation may therefore facilitate such interaction taking place.
The reputational factor. Some instruments have been applied to great effect in “shaming” those non-complying, such as the way NGOs and others applied pressure on the Soviet Union in the context of the Helsinki Process. Mechanisms to dismiss parties from membership would also affect reputation, such as the FATF.
Consensus on underlying norms. The means of adoption and the degree of detail contained in these instruments would appear to be critical factors. Instruments that do not command a high sense of legitimacy would appear less likely to succeed. The Pesticides Code, in its initial form, was not considered to sufficiently take account developing countries capacities, which lead to its revision. The International Undertaking was not effectively implemented during the time that its basic principles were under re-negotiation. However, other instruments, bolstered by important bodies such as the UN Security Council, can represent a high degree of consensus, e.g. the FATF.
Maximising welfare and increasing efficiency. These motivations would appear to underpin instruments that involve financial transfers, such as the FATF, or which revolve around specific transactions, such as the Kimberley Process.
The institutional setting. This would appear to be a key factor in the success of an instrument – the financial, technical, logistic support of institutions, such as the FAO, are determinant. At the same time, an institutional home is no guarantee of success – limited resources are more intensely competed over. Indeed, some rather light institutional set-ups, such as for the Helsinki Process and the Kimberley Process, would appear to be more suitable to achieving their objectives.
1 In this paper, the use of the term ‘instrument’ is meant to be generic, rather than prescriptive as to political or legal weight..
2 Informal Non-paper produced by the ‘Friends of Guadalajara’, “Towards the Future International Arrangement on Forests (IAF): A Way Forward”, 26 April 2005, at 7.
3 Ibid.
4 United Nations on Forests, “Report of the Fifth Session: 14 May 2004 and 16 to 27 May 2005”, United Nations, Economic and Social Council, Official Records, 2005, Supplement No. 22, E/2005/42, E/CN.18/2005/18, at 9.
5 Ibid, at 10.
6 C.M Chinkin, “The Challenge of Soft Law: Development and Change in International Law”, 38 ICLQ (1989) 850-866, at 866.
7 Based on a personal interview conducted in October 2005.
8 M. Tsamenyi, L. Manarangi-Trott, and S. Rajkumar, “The International Legal Regime for Fisheries Management”, UNEP Workshop on Fisheries Subsidies and Sustainable Fisheries Management, International Environment House II, Geneva, 26-27 April 2004 , available at <http://www.unep.ch/etu/Fisheries%20Meeting/submittedPapers/MartinTsamenyiLaraManarangiTrottShilpaRajkumar.pdf>, at 17.
9 J. J. Kirton and M. J. Trebilcock (eds) Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance, Global Environmental Governance Series, Ashgate Publishing Limited, 2004, at 22.
10 See 1995 ICJ Reports 6, cited in See. C. Chinkin, “Normative Development in the International Legal System”, in D. Shelton (ed), Commitment and Compliance – The Role of Non-Binding Norms in the International Legal System, Oxford University Press, 2000.
11 E.g. Principle 1 (a): States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction.
12 E.g. Articles 210-211 of the UN Convention on the Law of the Sea, which refers to standards in relation to ocean dumping and pollution from vessels. The WTO Agreement on Technical Barriers to Trade sets out presumptions of conformity based on voluntary international standards. See, more generally, A.E. Boyle, “Soft Law in International Law Making” in M. D.Evans (ed) International Law (2nd edition), Oxford University Press, forthcoming in 2006..
13 E.g. Convention of 15 December 1992 on Conciliation and Arbitration within the Conference on Security and Cooperation in Europe.
14 Based on a personal interview conducted in October 2005.
15 K.W. Abbott and D. Snidal, “Hard and Soft Law in International Governance” 54 (3) International Organization 2000, pp 421-456, at 434.
16 See H. Hillingenberg, “A Fresh Look at Soft Law”, 10 EJIL 1999, pp 499-515.
17 --- “ Objectives of the Missile Technology Control Regime”, MTCR homepage, available at <http://www.mtcr.info/english/objectives.html>
18 A.E. Boyle, op. cit., n. 12.
19 Paragraph 19.38.
20 Resolution 55/56 of 1 December 2000.
21 E.g. Code of Conduct for Responsible Fisheries
22 E.g. In the PIC code, the FAO “will” review notifications to ensure conformity with the definitions of the Code”.
23 International Plan of Action to Prevent, Deter And Eliminate Illegal, Unreported And Unregulated Fishing; International Plan of Action for Reducing Incidental Catch Of Seabirds In Longline Fisheries; International Plan Of Action For The Conservation And Management Of Sharks; International Plan Of Action For The Management Of Fishing Capacity.
24 See <http://www.mctr.info>.
25 Center for Nonproliferation Studies,“Hague Code of Conduct Against Ballistic Missile Proliferation” Inventory of International Nonproliferation Organizations and Regimes, 2003, available at <http://cns.miis.edu/pubs/inven/pdfs/icoc.pdf>, at 1.
26 Article 11.
27 Eight industrialised countries: Canada, Japan, Switzerland, United States, Germany, France, New Zealand, and United Kingdom.
28 Paragraph 1.5.
29 E.g. Paragraph 4.4.
30 E.g. Paragraph 4.5.
31 Art III, Paragraph 8 (a).
32 Art V, Paragraph 16.
33 Paragraph 4 (a)(i)
34 Paragraph 8.2.6.
35 Recommendation 3.
36 Paragraph 6.1.6.
37 Paragraph 11.
38 Based on a personal interview conducted in October 2005.
39 Paragraph 14.
40 Financial Action Task Force, “FATF Standards: Monitoring the Implementation of the Forty Recommendations”, 2005, available at <http://www.fatf-gafi.org/document/60/0,2340,en_32250379_32236920_34039228_1_1_1_1,00.html>
41 Paragraph 5 (c)
42 Paragraphs 12.7-12.9.
43 Paragraph 87.
44 Section VI, Paragraph 16.
45 Section V, Paragraph (e)
46 Paragraph 6.1.5.
47 On December 21, 2004 the Security Council adopted resolution 1579 which renewed the measures prohibiting of direct or indirect import by states of all rough diamonds from Liberia "for a further six months from the date of adoption of this resolution, but to review them after three months in light of the Kimberley Process Visit and the preliminary report of the expert panel ... with a view to lifting the measures as soon as possible, when the Council concludes that the National Transitional Government has established an effective Certificate of Origin regime for trade in rough diamonds that is transparent and internationally verifiable." (Report of the Chair 2004)
48 Financial Action Task Force. (2005) “FATF will explore the symbiotic relationship among corruption, money laundering and terrorist financing”, FATF Press Release, 13 October 2005, available at <http://www.fatf-gafi.org/dataoecd/13/36/35497629.pdf>
49 Paragraph 11.3.
50 M. A. Mekouar, “Pesticides and Chemicals: The Requirement of Prior Informed Consent”, in D. Shelton, op cit. note 10.
51 Based on a personal interview conducted in October 2005.
52 Based on a personal interview conducted in October 2005.
53 Based on a personal interview conducted in October 2005.
54 See R. Andersen (2003), “FAO and the Management of Plant Genetic Resources”, in Olav Schram Stokke and ?ystein B. Thommessen (eds.), Yearbook of International Co-operation on Environment and Development 2003/2004 (London: Earthscan Publications), 43–53, for this and following points.
55 Center for Nonproliferation Studies, n. 24 above.
56 E. Brown Weiss, “Conclusions: Understanding Compliance with Soft Law”, in D. Shelton, op cit. Note 10.
57 Ibid.