Andrew T. Guzman and Timothy L. Meyer,
International Common Law: The Soft Law of International Tribunals, 9
Chi. J. Int'l L.
Available at: http://scholarship.law.berkeley.edu/facpubs/1771
The subject of this article lies at the intersection of two institutions states have used during this period of legalization: international tribunals & soft law. We argue that the nature of channeling legal disputes to international tribunals necessarily implicates the use of soft law. In short, decisions of international tribunals interpret binding legal obligations but are not themselves legally binding beyond the particular states & the particular facts before the tribunal. Any further role performed by these decisions is best characterized as soft law. Tribunal rulings can nevertheless influence state behavior by implicating a state's reputation for compliance with international law, by bolstering the reciprocity underlying an agreement, or by triggering retaliation. Moreover, by establishing a tribunal to interpret legal obligations in a way that gives rise to a soft-law jurisprudence, states are able to expand the tribunal's influence beyond those states that submit to the tribunal's jurisdiction. In effect, all states subject to the underlying legal obligation come to be subject to the soft-law impact of the tribunal, regardless of whether they have formally submitted to the tribunal's jurisdiction. In sum, the decisions of international tribunals create a form of nonbinding, yet influential, international common law. Adapted from the source document.