International law is a largely consensual system, consisting of norms that states in sovereign equality freely accept to govern themselves and other subjects of law. International law is thus created by states, using procedures that they have agreed are legislative, that is, through procedures identified by them as the appropriate means to create legally-binding obligations. In contrast to the agreed sources listed in the International Court of Justice (ICJ) Statute, state practice in recent years, inside and outside international organizations, increasingly has placed normative statements in non binding political instruments such as declarations, resolutions, and programs of action, and has signaled that compliance is expected with the norms that these texts contain. Commentators refer to these instruments as "soft law" and debate whether the practice of adopting them constitutes evidence of new modes of international law making. States, however, appear clearly to understand that such soft law texts are political commitments that can lead to law, but they are not law, and thus give rise only to political consequences. The distinction may not be as significant as expected, however, because such commitments have proven sometimes to be as effective as law to address international problems.
The paper concludes, among other things, that the growing complexity of the international legal system is reflected in the increasing variety of forms of commitment adopted to regulate state and non state behavior in regard to an ever growing number of transnational problems. The various international actors create and implement a range of international commitments, some of which are in legal form, others of which are contained in non binding instruments. The lack of a binding form may reduce the options for enforcement in the short term (i.e., no litigation), but this does not deny that there can exist sincere and deeply held expectations of compliance with the norms contained in the non binding form.
GW Paper Series
GWU Legal Studies Research Paper No. 322; GWU Law School Public Law Research Paper No. 322
Dinah L. Shelton, Soft Law in HANDBOOK OF INTERNATIONAL LAW (Routledge Press, 2008).