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International Common Law: The Soft Law of International Tribunals

Andrew T. Guzman

USC Gould School of Law

Timothy Meyer

Vanderbilt University Law School

August 30, 2012

UC Berkeley Public Law Research Paper No. 1267446

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal's decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law.

Despite its inability to bind states, a tribunal can 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. In this sense the rulings of a tribunal influences states through the same mechanisms as does binding international law. Because tribunal rulings are soft law, however, they avoid the need for unanimity among states, thereby making it easier for the legal system (including the non-binding aspects of that system) to adapt to changing circumstances and conditions.

By establishing a tribunal to interpret legal obligations in a way that gives rise to a soft law jurisprudence, therefore, 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 this way tribunals create what can be called an international common law able to evolve without formal agreement from states.

Number of Pages in PDF File: 23

Keywords: soft law, international law, international common law, international tribunals, tribunals, international courts

JEL Classification: K33

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Date posted: September 15, 2008 ; Last revised: September 1, 2012

Suggested Citation

Guzman, Andrew T. and Meyer, Timothy, International Common Law: The Soft Law of International Tribunals (August 30, 2012). UC Berkeley Public Law Research Paper No. 1267446. Available at SSRN: http://ssrn.com/abstract=1267446 or http://dx.doi.org/10.2139/ssrn.1267446

Contact Information

Andrew T. Guzman (Contact Author)
USC Gould School of Law ( email )
699 Exposition Boulevard
Los Angeles, CA 90089
United States
Timothy Meyer
Vanderbilt University Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
615-936-8394 (Phone)
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