Leiden Journal of International Law

Table of Contents - June 2012 - Volume 25, Issue 02  

SYMPOSIUM ON SOFT LAW

Shades of Grey: Soft Law and the Validity of Public International Law

JAYE ELLIS*

Abstract

Soft law is often seen as a way to overcome certain problems of legitimacy in international law, notably the weaknesses of a voluntaristic conception of international law's validity. Other perceived benefits of soft law include flexibility, speed of adoption and modification, and even effectiveness. Yet, soft law is seen by others as a threat to law, because it effaces the border between law and politics. This paper explores different approaches to the boundary between law and not-law that seek both to maintain this boundary and to reconceptualize it in a way that better anchors the validity of international legal rules.

Key words

  • autopoietic theory;
  • internal morality of law;
  • publicness of law;
  • soft law;
  • validity of international law

Footnotes

* Associate Professor, Faculty of Law, McGill University, Montreal, QC, Canada [jaye.ellis@mcgill.ca]. The author gratefully acknowledges the research assistance of Henry Ngan. Thanks are also due to Mark Antaki, Jean d'Aspremont, Matthias Goldmann, Victor Muñiz-Fraticelli, Gunther Teubner, and the anonymous reviewers for their immensely helpful comments and suggestions. The financial support of the Fonds québécois de recherche en société et culture and the Hydro-Québec Fund for Sustainable Development Law is also gratefully acknowledged. This paper was written while I was a visiting scholar at the Centre de recherche en droit public at the Faculté de droit, Université de Montréal, and the Centre d’études et de recherches internationales et communautaires at the Université Paul-Cézanne in Aix-en-Provence. Finally, a deep debt of gratitude is owed to Stephen J. Toope, who supervised my doctoral dissertation on soft law.