Alan Boyle

Some Reflections on the Relationship of Treaties and Soft Law

My starting point for this discussion of the relationship between treaties and soft law is the observation that the subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty. The role of soft law as an element in international law-making is now widely appreciated, and its influence throughout international law is evident. Within that law-making process the relationships between treaty and custom, or between soft law and custom, are also well understood. The relationship between treaties and soft law is less often explored, but it is no less important, and has great practical relevance to the work of international organizations.

Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction

The entry into force of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), on 16 November 1994, is probably the most important development in the settlement of international disputes since the adoption of the UN Charter and the Statute of the International Court of Justice. Not only does the Convention create a new international court, the International Tribunal for the Law of the Sea (“ITLOS”), it also makes extensive provision for compulsory dispute-settlement procedures involving States, the International Seabed Authority (“ISBA”), seabed mining contractors and, potentially, a range of other entities. Implementation of the Convention has spawned a number of inter-State disputes to add to the cases already before the International Court. The initiation of the ITLOS not only opens up new possibilities for settling these disputes but it also has implications for the future role of the International Court and ad hoc arbitration in the law of the sea and more generally. It contributes to the proliferation of international tribunals and adds to the potential for fragmentation both of the substantive law and of the procedures available for settling disputes. Judges Oda and Guillaume have argued that the ITLOS is a futile institution, that the UNCLOS negotiators were misguided in depriving the International Court of its central role in ocean disputes and that creation of a specialised tribunal may destroy the unity of international law. The law of the sea, both judges argue, is an essential part of international law and any dispute concerning the application and interpretation of that law should be seen as subject to settlement by the International Court.

Kosovo: House of Commons Foreign Affairs Committee 4th Report, June 2000

Following NATOs intervention in Kosovo in 1999, the United Kingdom House of Commons Foreign Affairs Committee commenced an inquiry with the following terms of reference: “To inquire into the foreign policy lessons of the Kosovo crisis and how the Foreign and Commonwealth Office might best promote peace and stability in the region.” The Committee heard oral evidence from government ministers, diplomats, FCO staff, journalists, academics, and lawyers. It also received written memoranda. The President of Montenegro and the Foreign Minister of Albania were interviewed in private, and the Committee visited Kosovo, Macedonia and Montenegro. The Committees Report was published on 7 June 2000 as the 4th Report of The House of Commons Foreign Affairs Committee (HC28-II, ISBN 010 2331006) together with the evidence and appendices (HC28-II, ISBN 010 2333009).