Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority

Abstract

This paper suggests a tentative model for the legal conceptualization of the great variety of instruments by which international institutions exercise public authority, brought to light by the thematic studies of this project. If one recognizes that international public authority may not only be exercised through binding rules, but also through non-binding law ("soft law") and non-legal instruments (e.g., information), the challenge arises to taxonomise these various forms of public authority. This taxonomical exercise is of high interest for lawyers, as it would allow the development of legal standards that are commensurate with the specific kind of public authority exercised by a particular instrument.

The paper identifies a series of formal criteria which enable a meaningful distinction of authoritative instruments on the international level. Drawing on a great array of case studies, the paper then proposes a tentative taxonomy of "standard instruments" and discusses which legal standards would be appropriate for which instrument.

The paper concludes that such a taxonomy of standard instruments should take the place currently held by traditional sources theory and determine the identification of the legal significance of a particular instrument. Compared to the richness of the instrumental forms of public authority on the global scale, the classical distinction between binding law and non-binding non-law is oversimplifying and at times leads to confusing and contradictory results.

The paper is part of a larger project on the exercise of public authority by international institutions.

Keywords: soft law, hard law, sources of law, international organizations, law-making, global governance, non-binding agreements, information, Handlungsformen