SOFT LAW o GTAs are personal pledges based on a party's reputation but are in no
Hartmut: A Fresh Look at Soft Law
International agreements not concluded as treaties and therefore not covered by the VCLOT
play an important role in international relations. In Hartmut's article, he discusses the
characteristics of 'non-treaty agreements' (hereinafter NTAs) and why countries, more often
than not, prefer to enter into the same, rather than entering into proper treaties. Hartmut also
explores whether NTAs are binding and if they are, to what extent do they bind countries.
The author is of the opinion that both treaty and non-treaty commitments should have a
degree of flexibility in the application of rules to agreements. This opens up the possibility of
regarding a treaty as a complex and differentiated whole. Hartmut also addresses the doubts
against adding new categories to the sources listed in Article 38 of the Statute of the
International Court of Justice (in this case, 'soft law' in the form of NTAs) and thus brings
order into the subject by making more explicit the distinctions between various levels of rules.
The author also explores the notion that resolutions of international organizations may also
create 'soft law'. Of note is Hartmut's discussion on the 'rules of the game' applicable to
parties to NTAs. Finally, he discusses the role of NTAs in the general system of int'l law.
Article Conclusions:
 For the author, the wholesale criticism that IL is being 'softened' due to NTAs is
not justified
 Non-treaty agreements can be best described as a self-contained regime, its
characteristics dependent on the intentions of the parties in the specific case
 Considerations of good faith may also help supplement such 'non-treaty'
agreements
 Non-treaty agreements are not regarded as treaty substitutes, but an independent
tool used to regulate state behavior in cases where a treaty is not an option
 They can be rudimentary or complex and may stand independently of treaty law
 They may also flesh out treaty law
 They are not subject to international treaty law since they're not treaties
 At present, there are no set of rules regulating non-treaty agreements
 Technical agreements, declarations of intent, codes of conducts and guidelines
are some examples that show the importance of agreements below the level of
treaties
 Non-treaty agreements are not indifferent to legal terms. They contain rules
governing state relations and are the source of legal thinking
 They should be analyzed on a case-to-case basis, depending on the will of the
parties and may be developed to treaty law if parties desire so
 Present rules of international law take account of non-treaty agreements as a
factor, not a source, of law
 Political function also provides the power 'to justify and persuade' – not important
whether one attaches limited legal quality to such self-contained regimes
Introduction
 A 'non-treaty' agreement (hereinafter "NTA") is not a new concept. As early as
1934, Strupp has suggested that greater attention should be given to this type of
agreement. Wengler also wrote that what is involved in such agreements 'cannot
be ascertained from statements by xxx lawyers nor xxx explanations in literature'
 NTAs should be differentiated from true gentlemen's agreements (hereinafter
"GTAs")
1 2
Author gives the example of the Luxembourg compromise of 1966 in the UN International Law Commission. The compromise
was that voting procedures in the EEC Council of Ministers would not constitute GTAs.
case binding on his/her state or even his/her successor in office
o GTAs concern personal action – which cannot be simply transferred to
relations between states1
 NTAs are also different from 'inter-agency agreements' which are only binding on
governments or specific ministries and not on states as a whole.
 NTAs are also different from agreements in the form of treaties which contain (in
whole or part) obligations which cannot be implemented due to their lack of
specificity. Such are also referred to as 'soft law' – they are 'provisions…void and
incapable on account of uncertainty and discrepancy' (Lauterpacht)
o The author notes however, that precision or lack thereof is not an
appropriate criterion whether an agreement is binding or not.
o Treaties remain treaties even if there are only minimal possibilities for
responding to infringements, or if non-fulfillment/withdrawal is largely left
to state discretion.
o The author notes, however, that since the fulfillment of such 'soft law'
treaties is largely subject to good faith, it approximates them to NTAs.
Why Non-Treaty Agreements?
 Hartmut presents some reasons why countries would avoid entering into treaties
proper:
o General need for mutual confidence-building
o To stimulate developments still in progress (lack of specificity)
o To create a preliminary and flexible regime – and let it develop
o Impetus for coordinated national legislation
o Concern of overburdening international relations with a 'hard treaty' –
failures would deteriorate state relations
o Simpler procedures thus more rapid finalization (consensus rather than
treaty conference)
o Avoids cumbersome domestic approval
o Can be made with parties which do not have the power to conclude
treaties under IL
o Can be made with parties which other state parties are unwilling to
recognize
o Sometimes, just in order to reach an agreement
 Also, there are frequent cases in which a text, laid down as a non-treaty-binding
standard, gradually becomes, as awareness grows, a binding and a 'hard'
obligation (Human Dimension Copenhagen Meeting in 1990 as example which
have been inserted in Germany's 'hard' agreements with Poland and the CSSR)
 Hartmut posits that the problems of NTAs are actually also present in treaties
proper. Correlatively, benefits given by treaties proper also can be provided for by
NTAs.
o When assessed realistically, the difference between a treaty and the
binding 'political' effect of an NTA is not as great to a politician as is often
thought
o Treaties, similar to NTAs, are also dependent on continuing cooperation
between states.
o Rotter likened this phenomenon to the 'prisoner's dilemma'2 and posited
that the behavior of those involved will be made predictable for the joint
(minimum) benefit even without enforceable rules
the prisoner's dilemma stipulates that personal interest seems more desirable, but it often leads to a worse result if two parties
are both acting in self-interest
1
 o Though 'soft law' may sometimes be a precursor to treaty obligations,
this is generally far from being its purpose
Are Agreements Binding only in the Form of a Treaty?
 The author posits that there are intermediate areas covering non-treaty but binding
agreements which entail certain repercussions under IL that are less extensive
than those incurred under treaties. This is not a new topic of discussion as it has
been discussed in the past by several studies.
 Whether NTAs are excluded from the application of IL cannot be ascertained from
the VCLOT
 However, this does not necessarily mean that all NTAs only follow 'political' or
moral rules.
 Moreover, there is no provision of IL which prohibits such NTAs from being sources
of law, unless they violate jus cogens.
Excursus: Constitutional Law
 Hartmut discusses the constitutional aspects of the issue. Since treaties are the
agreements that are of legal relevance, the need for parliamentary approval (in the
domestic sphere) does not arise for any other agreement.
 However, such approval from governments should not be ruled out in principle
when it comes to NTAs. However, this is a case to case basis, depending on the
state in question (in this reading, the author presents the example of Germany's
Federal Government that allows non-treaty dealings to be unaffected by the
German Basic Law).
Intention to be Bound by, and Freedom to Choose, the Form of Agreements
 States are free to design the agreements they enter into.
 NTAs are concluded because the states involved do not want to enter a full-fledged
treaty, which if not fulfilled, will result in a breach of IL
o Which may mean more costs, for example, the non-erring state may be
entitled to put in place countermeasures
 An indication of the lack of treaty force for example, would be when parties
expressly exclude the registration of the agreement in accordance with Article 102
of the UN Charter
 The author then discusses the legal significance of NTAs which the parties
consider to be binding – which, in his opinion, is not merely a political or moral
commitment
 Hartmut proposes two approaches in analyzing the legal treatment of NTAs:
o 'subjectively' from the standpoint of the intention of the parties to be
bound by their commitments; or
o 'objectively' in the sense of a factual interdependence created by the
actions of the parties and other legal conclusions drawn from an
evaluation of the overall situation
 'subjectively'
o Obligations arise from the moment an agreement is reached – the
agreement then, is the source
 'objectively'
o Rules to be applied to the events originate NOT from the parties' wishes
but directly from customary international law, or general principles
of law.
 In this case, commitment arises only after a long time after the
agreement was reached
 The traditional approach (particularly in NTAs) is the 'objective' one. In addition to
good faith, the relevant legal concepts are the prohibition of venire contra factum
proprium (No one may set himself in contradiction to his own previous conduct) or
estoppel (from common law).
 Hartmut however criticizes that these aim at the limits on the exercise of rights,
rather than at their origin.
 This is a problem because these impose limits than their source, it would be difficult
to apply them even to unilaterally binding declarations.
 To put it simply, because the source of the obligation is uncertain, then the legal
consequences too are unclear (i.e. how shall these NTAs be interpreted, how can
they be revoked, etc.)
 Hence, the important question to be answered is whether NTAs can be sources of
law as these will show the legal consequences of a (limited) intention to be bound
by a commitment.
 Both treaties and non-treaty agreements are based on a coincidence of declared
intentions.
 Hartmut then argues that since the decisive factor in IL of treaties is the intention
of states, then there appears to be (at least at first glance) no reason why states
should be denied the possibility to take on a commitment with lesser legal
consequences as a treaty would have.
On the Content of Non-treaty Agreements
 Since NTAs are not treaties, when state enter into the former, certain legal
consequences are also excluded (such as effects of non-fulfillment or
compensation or possible enforcement through dispute settlement).
 NTAs may range from a promise of a one-off future action or a complex system of
regulated cooperation. However, what distinguishes NTAs from treaties is that the
former can be independent, and at the same time can supplement or flesh out
formal treaties.
 Hartmut concludes that when NTAs are so precise, they are permissible in
substances, independently of the nature of the agreement as long as they are
within jus cogens.
 Hartmut then asks: to what extent can supplementary rules be introduced without
the agreement being regarded as a treaty under IL?
Excursus: Non-Binding Declarations of Intent
 These non-binding declarations of intent are solely intended to express shared
values, interests, or desires and uncertain hopes.
 Such declarations are in reality parallel declarations of intent by the respective
governments, and their political significance would be that they document a
coincidence of intention at the highest level.
Degree of Non-treaty Commitments
 However, as soon as a document links future action of parties, it must be
assumed that a greater degree of commitment is intended.
 The author agrees with the objections to the idea of a "sliding scale" of legal
commitment as regards genuine treaties and posits that the same understanding
should be applied to the non-treaty field too – that is, there should be no sliding
2
 scale. Either an agreement is binding under IL or it is not – and states take the
greatest care to make this distinction.
 Hartmut then discusses that sometimes, the force in the international sphere of a
treaty is a serious matter of negotiation (ex. Basic Act between NATO and Russia).


Differentiation between Legal Levels

 Latin maxim inadimplenti non est adimplendum comes from internal law. It means
that if a party substantially violates a treaty, the other party may invoke the violation
to put to an end its application. It is traditionally used to depict non-performance by
way of reciprocity in the context of international treaties. According to the maxim,
it is only the violated treaty that may be subject to denunciation.

The Rules of the Game Applicable to Partners in a Non-treaty Agreement



Role of Non-Treaty Agreements in the General System of International Law



Conclusion

DIGESTER: Kim