Non-state Actor Dynamics in International Law by Ryngaert Cedric. Noortmann Math. & Cedric Ryngaert

Author:Ryngaert, Cedric.,Noortmann, Math. & Cedric Ryngaert
Language: eng
Format: epub
Publisher: Taylor & Francis (CAM)
Published: 2010-11-15T00:00:00+00:00

‘Soft’ International Legal Personality

Outside the ‘law as process’ school, certainly softness of international law is also an issue. The end of the binary opposition between international law as a system of ‘hard’ rules on the one hand and ‘soft’ international law on the other (Chinkin 1989: 850–866), arguably leaves room also for a softer (version of) ILP. The general idea then is that for actors to be addressed by soft international norms, to be involved in the creation of soft law instruments, etc., may not be enough to have full-fledged ILP in international law – yet it stands for something. ‘Soft international legal personality’ may then express the ‘existence’ of a particular actor in the eyes of international soft law instruments. In other words, it is not so much a fundamental adaptation of the definition of ILP as it is an implication of the growing ‘softness in international law’ (d’Aspremont 2008) for the ILP conception. While Jean d’Aspremont is right that the binary nature of law is worth fighting for, I beg to differ on the point of his explanation for the softening of international law. In this case, the introduction of a softer version of ILP for NSAs means a more adequate description of a serious normative development, that is to say, soft law that addresses NSAs (Shelton 2009, also Chinkin 2000). It is not ‘an artificial extension of the frontiers of international law’ for the sake of mere scholarly pleasure (d’Aspremont 2008). It is worth developing our terminology so as to encompass also softer tones of ‘legalness’ and recognize that international law can have normative force also for actors which are not formally bound by a particular international norm, yet sometimes willing to comply; or that international normativity can be shaped by international documents which escape the binary structure of law, such as non-binding documents of international organizations, codes of conduct, private governance arrangements. A soft ILP notion would thus accommodate and recognize the new role of NSAs within the international legal system. Otherwise they are left with an unclear, controversial status within a global legal arena that will become only more complex and plural.

Obviously, on the one hand softening ILP is an inclusive exercise. It may serve to rescue ILP from the positivist, binary understanding of international law and contribute to its adaptation to new legal phenomena. On the other hand, softened ILP confirms to some extent the validity of Higgins’ critique of how our discipline has ‘erected an intellectual prison’ that obstructs the adaptation of international law to the social reality. Alston has uttered similar critique with his ‘Not-a-Cat’ image (Alston 2005: 3–4, 19–20); the use of the term ‘non-state actors’ is in itself an intentional technique to exclude these actors from the international legal system. Behind our discipline’s terminology functions the exclusive club or ‘catalogue’ approach to ILP (see also, Alston 2005: 19, Clapham 2006: 70–71: ‘doctrinal filters’, Brölmann 2007a: 69–70), which stands in the way of inclusion. Against the backdrop of the traditional approach

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