The role of corporate social responsibility and soft law options in the protection of migrant workers' interests in host countries: the case of Malaysia

This article examines the potential for corporate social responsibility (CSR) and other soft law initiatives in generating change for blue-collar migrant workers in the Malaysian workplace. We explain the absence thus far of adequate protection for blue-collar migrant labour in formal law and corporate governance from a 'path-dependence' perspective and examine the potential of soft law options and government policies on labour migration as possible catalysts of change. The impact of the 1997 Asian fijinancial crisis in creating new corporate governance rules and government support for the development of CSR is discussed along with international initiatives, such as the United Nations Global Compact, whereby Malaysian companies have committed to playing a positive role in creating favourable outcomes for labour and human rights. Avenues of development vis-a-vis CSR and other soft law mechanisms for blue-collar migrant workers are offered. We conclude with a comment on the trajectory for CSR, soft law options and blue-collar migrant employee relations in Malaysia by highlighting the potential for hybrid labour regulation, whereby soft law may be hardened through creative methods of interpretation by the courts

Customary International Law: An Instrument Choice Perspective

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law

International Financial Standards and the Explanatory Force of Lex Mercatoria

The global financial crisis has cast a strong light on some hitherto obscure corners of the financial world, provoking an outpouring of calls for concerted international action. “Hard law” having disappointed, can “soft law”, in the form of international financial standards, substitute for traditional national legislation. This article examines some of the difficulties associated with the “international standards as soft law” discourse. First of all, conceptual problems in the “soft law” discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries, resulting in different understandings of international financial standards. Secondly, recent experience, over the past decade, with some “soft law” international financial standards as both diagnostic and prophylactic tools, has been decidedly mixed, in fact, largely unsatisfactory. Thirdly, the “soft law” discourse in international finance appears strangely remote from the daily grind of international commercial practice, where the discourse is largely unknown. But perhaps in this disconnect between theory and practice lies clues to important normative forces at work in international finance, and in particular the international capital markets. The more one considers the world of international finance, the more obvious become the outlines of centuries old transnational merchant law, the contentious lex mercatoria. The proposition put forward here is that the formal regulation of financial markets is supported by a body of strong and persistent customary law, a lex mercatoria, a rarely acknowledged but powerful undercurrent in finance, especially in its international iteration. The continued prevalence of oral contracting and the stubborn persistence of self-regulatory principles are examples. There are several intriguing implications to this proposition. Is it possible that the global financial crisis represented not only a failure of formal, state-led regulation, as it surely did, but also a breakdown of a lex mercatoria of finance? If that is the case, international standard setters and national regulators, both, ignore this lex mercatoria (the customs and practices of international finance) at their peril. To do so, would be to miss a true, powerful, source of normativity operating in international financial markets

Soft Law

International law is a largely consensual system, consisting of norms that states in sovereign equality freely accept to govern themselves and other subjects of law. International law is thus created by states, using procedures that they have agreed are legislative, that is, through procedures identified by them as the appropriate means to create legally-binding obligations. In contrast to the agreed sources listed in the International Court of Justice (ICJ) Statute, state practice in recent years, inside and outside international organizations, increasingly has placed normative statements in non binding political instruments such as declarations, resolutions, and programs of action, and has signaled that compliance is expected with the norms that these texts contain. Commentators refer to these instruments as soft law and debate whether the practice of adopting them constitutes evidence of new modes of international law making. States, however, appear clearly to understand that such soft law texts are political commitments that can lead to law, but they are not law, and thus give rise only to political consequences. The distinction may not be as significant as expected, however, because such commitments have proven sometimes to be as effective as law to address international problems. The paper concludes, among other things, that the growing complexity of the international legal system is reflected in the increasing variety of forms of commitment adopted to regulate state and non state behavior in regard to an ever growing number of transnational problems. The various international actors create and implement a range of international commitments, some of which are in legal form, others of which are contained in non binding instruments. The lack of a binding form may reduce the options for enforcement in the short term (i.e., no litigation), but this does not deny that there can exist sincere and deeply held expectations of compliance with the norms contained in the non binding form

Soft Law and the Protection of Vulnerable Migrants

Since the 1980s, an increasing number of people have crossed international borders outside of regularized migration channels, whether by land, air or sea. Policy debates on these kinds of movements have generally focused on security to the neglect of a focus on rights. In a range of situations, though, irregular migrants, who fall outside of the protection offered by international refugee law and the United Nations High Commissioner for Refugees (UNHCR), may have protection needs and, in some cases, an entitlement to protection under international human rights law. Such protection needs may result from conditions in the country of origin or as a result of circumstances in the host or transit countries. However, this article argues that despite the existence of international human rights norms that should, in theory, protect such people, there remains a fundamental normative and institutional gap in the international system. Rather than requiring new hard law treaties to fill the gap, the article argues that a “soft law” framework should be developed to ensure the protection of vulnerable irregular migrants, based on two core elements: first, the consolidation and application of existing international human rights norm into sets of guiding principles for different groups of vulnerable irregular migrants; and second, improved mechanisms for inter-agency collaboration to ensure implementation of these norms and principles. This article suggests that learning from the precedent of developing the Guiding Principles on Internal Displacement and its corresponding institutional framework can be particularly instructive in this regard

Comments on the Normative Challenge of Environmental “Soft Law”

This paper describes the increased presence of non-binding soft law in international environmental law and begins by listing the possible uses of a “non-binding normative instrument.” Next, the paper describes the relationship between soft law and customary international law and notes that soft law may result in subsequent codification of those principles or interpret existing treaty obligations. The paper then contemplates why states are utilizing soft law in international environmental law and discusses issues regarding compliance with non-binding soft law. The paper concludes that the complicated nature of the international system prevents a prediction of the extent to which states will use and enforce hard or soft law

Soft Law y la teoría de las fuentes del derecho

Soft law concerns rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effects. The article examines this notion in the light of the relationship between legal sources and interpretation. Soft law refers to a range of phenomena related to legal positivization and interpretative practices in the field of international law, EU law and national law. Soft law performs various functions, traveling in tandem with hard law. Soft law plays a role in legal order, which shows a gradual differentiation of its normativity.El soft law hace referencia a reglas de conducta que en principio no tienen fuerza jurídica vinculante, aunque produzcan efectos prácticos. El artículo investiga esta noción a la luz de la relación entre fuentes del derecho e interpretación. El soft law hace referencia a una serie de fenómenos relacionados a la positivización jurídica y a las prácticas interpretativas en el ámbito del derecho internacional, derecho de la UE y derecho nacional. El soft law desempeña distintas funciones que coexisten con el sistema de hard law. El soft law juega un papel en el ordenamiento jurídico que muestra la gradual diferenciación de su normatividad

Soft Law in the European Union - The Changing Nature of EU Law

This article is based on the assumption that there is a continuum running from non-legal positions to legally binding and judicially controlled commitments with, in between these two opposite types of norms, commitments that can be described as soft law. It aims at defining soft law in international relations in order to provide a mapping of EU law on the basis of the soft law / hard law divide. It helps categorize EU competences and public policies, and see how they fit with the distinction between two kinds of processes: legalization (transformation of non-legal norms into soft or hard law) and delegalization (transformation of hard law norms into soft law and evolution from hard to soft law)

How Hard Is Soft EU Company Law?

This article analyzes the soft law applicable to companies within the European Union (EU) in order to extract tendencies, including by comparing US and EU soft law instruments. It concludes that soft law is like wine: many enjoy it, and it gets better as it ages. Soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. After an overview of the main soft law instruments related to corporate governance and financial markets, and their sources, this article extracts a number of trends