Standards and Sources.

II. Norm Varieties in International Law

Part of the preoccupation with the traditional sources triad stems from the fact that international legal discourse is largely a product of writers which are influenced by their own national legal traditions. Pre-world War I lawyers, including teachers of public international law, could not envisage the variegated forms of political action in international relations after 1945 that the tremendous increase in and means of world communication eventually brought about. Their own ideas about world society essentially meant the transposition of concepts of domestic law onto the plane of international law, in as far as that was possible. International law treaties at the turn of the century followed the traditional patterns of treaty law which in turn copied the modes of contract law found at the national level. Further, the Statute of the World Court in 1920, although the League of Nations was indeed geared towards a completely new regime of international organization, codified the legal abstractions prevalent before World War I, and these certainly were not universalistic from a contemporary point of view. The traditional national approach to legal norms - to this very day - follows the positivistic legal pattern of conditional programme, consequence, and conclusion, supplemented by sanctions or at least the threat of sanctions for breach of those legal obligations. This pattern clearly fits many developments in international law, but not all of them. It works well with the law of treaties, because there the analogy to national private law is obvious. But although treaty-law in international relations plays a most important role in times of multiple dissent amongst states by pinpointing common denominators, it certainly is not suited for all types of state action. There are many instances where states, for one reason or another, do not wish to bind themselves by treaty, sometimes because of internal legal reasons such as avoiding parliamentary ratification procedures, as has been the case with the foreign affairs power in the United States of America. Instead, other forms of international political modes of action are sought and applied. It is for these reasons that international law after 1945 had to develop several categories of different degrees of norm density.

Basically, these diverse norms fall into two categories: rules of `hard' positive law and transpositive norm programmes of `soft' law. This categorization is reminiscent of John Austin's limiting definition of strict positivism, of `laws properly so-called' and `laws improperly so-called'.²⁴ Both spheres are strictly delineated, and the lawyer is only entitled to analyse `laws properly so-called'. This distinction is not, however, meant here. Instead, the characterization of hard and soft law is merely intended to focus attention on the fact that on the one hand some state obligations are created by treaties binding states objectively or benefitting individuals as subjective rights, as is the case with human rights norms (clearly designed as rules of hard law), while on the other hand, there exist a whole range of international rules which are derived from legally non-binding instruments but undoubtedly express normative claims, such as norms of imperfect obligation. An example of a norm of this category is furnished by international prescription of a right to work. Such a right is even accepted by Western states that generally feel unable to accord it the same status as civil and political rights, owing to the fear that they might not be able to fulfil such rights in times of economic difficulties unless one opted for a model of socialist planned economy. The merits of that argument will not be pursued here.²⁵ Suffice it to say that norms such as the right to work can nevertheless be accepted as representing norms of imperfect obligation, yardsticks or standards, meant to serve as incentives at the national level. Such standards are parameters which are brought to bear upon the national legal order and which may be - but need not necessarily be - applied fully in the decision-making process of legislative, executive, or judicial bodies, unless these standards are turned into a hard obligation by means of domestic law. More will be said about these standards shortly.

Apart from these standards, other types of transpositive norm programmes exist, such as those formulating promotional obligations.²⁶ These obligations which amount to outlining specific promotional activities such as seminars, expert-meetings, educational programmes and providing general public relations measures, are placed on states ratifying respective treaties, in the hope of attracting attention to particular norm programmes. Resort to standards is meant to arouse awareness for economic, social, and cultural rights and to create stronger internal pressure which will supplement a relatively weak international pressure, in the hope that this will ultimately induce legislative or executive agencies to translate these norm programmes into binding rules of national law.

Another type of norm visualizing goals or aims considered desirable, may be described as norms of aspiration. These serve as pointers or landmarks for the direction of programmatic aims in longer-term projection and often stress the necessity of stronger respect for human rights in finding solutions to economic or social questions.

Transpositive norm programmes also include norms which do not properly belong to the legal sphere, but are rooted in religious, natural law, anthropological, contractualist or consent-based concepts. Although they may look like legal norms, they are derived from different sources. Amidst these extra-legal norms we also find norms of non-legal societal influence, such as recognized usages and practices of states, which fall short of legal norms and often have no other basis than psychological and sociological preferences or simply usages or habits of obedience. Yet, non-legal as these norms may be, they often influence state behaviour as if non-compliance with such usage or practice might actually entail sanctions. In a descending order of obligation such norm programmes become less and less law-like.²⁷

While it is thus possible to distinguish these various types of norm categories found in international law, the intrinsic value of the differentiation becomes evident when one looks at the practice of states in those areas of the law where the proper consent basis is slender, and yet the need for concerted international action is felt strongly, as seen for example, in the Helsinki process of the CSCE.²⁸ Undoubtedly, the Final Act of that Conference, while clearly representing a document relevant to international law, did not amount to `hard law' in the classical sense. The array of programmatic goal or aspiration norms, rules of conduct, declarations of state intent and practical recommendations found in that document may nevertheless steer state action and practice quite in the same way as would the traditional sources triad.<sup>29</sup> Critics of this view regard such documents as an upgrading of `soft law' sneaking in through the backdoor. To say that a sharp delineation of law and non-law would not do justice to modern international relations - as this author also believes - or that undertakings which are found in the Final Act of the CSCE, (such as quasi contracts of a moral, pre-legal or extra-legal nature) produce new `soft law', does not seem helpful. For in cases of conflict, the only germane question would seek to discover the concrete legal consequences that could be deduced from a specific declaration or a particular conduct.<sup>30</sup> Both points of view fall rather short of the mark as being too one-dimensional. They infer the existence of an international law norm equivalent to a norm equipped with sanctions at the national level. The importance of these composite norms without fully binding effect, however, lies in their underlying rationale (Begründungszusammenhang), and in the interplay of clearly identifiable hard law norms with non-binding norms. Only if the interaction of these various norms - despite their differing degrees of hardness - is seen, can a useful function be assigned to these interlaced norms, which may be termed combination norms or combination standards. As Jochen Frowein convincingly argued in reference to the freedom of information in the context of the CSCE,<sup>31</sup> if one is prepared to accept these premises it even seems possible to allocate an estoppel function - and thus certainly a hard law effect - to such legally non-binding CSCE norms. The principle of estoppel as a general principle of law in the sense of Article 38(1)(c) of the ICJ Statute, and, therefore, of unquestionably `hard law' quality, is thereby coupled with a stricto sensu non-binding norm of aspiration emanating from the CSCE. The ensuing mixture of binding and non-binding rules³² carries with it the danger of upgrading non-binding norms, by treating them just like hard law norms, although that is by no means an unavoidable consequence. As far as the validity of norms is concerned, it is quite possible to distinguish matters that were combined at the level of norm application. Thus, the concrete case decision will be borne by the `hard law' elements of the combination standard, while the non-binding elements of the standard serve as propositions of reasoning, bolstering up the often slender hard law foundation of the decision. Ultimately, the coalition or co-existence of norms of varying degrees of normative `density' should not be seen as a sign of the primitive nature of international law, but rather of its maturity, since it was able to develop an adequate and realistic array of cooperative instruments where effective sanctions are lacking.

In this combination role, programmatic norms can also fulfil harmonization and multiplication functions. Thus, the Universal Declaration of Human Rights (UDHR) of 1948, while clearly non-binding as a declaration of the UN General Assembly, has been incorporated in many constitutions of newly-independent states, and has served as an aspiration model for the European Convention on Human Rights, as well as for other Human Rights documents.³³ Aspiration norms can also be found in the UDHR: it recognized the right to own property, which was later dropped from the UN Covenant of Civil and Political Rights owing to dissent about the extent of limitations, not of substance as such.³⁴ Today, the UDHR is universally recognized as a high-ranking document of political and ethical value, containing norms of aspiration which in many ways can become the crystallization point for future legal developments at both the national constitutional level and the international level, as the numerous examples of domestic and international codification illustrate.

As an extra-legal or non-legal ethical construct contained within existing international normative programmes, the right to own property, for instance, has only limited significance. However, it can still serve, for instance, to legitimize the concept of `smaller ownership', i.e. property rights limited to subsistence guarantees of individuals, but it could not be utilized as a justification for large-scale capital accumulation. At this point it becomes quite clear that by this usage of a norm, the existing ideological barriers between various world regions may, in fact, have a destabilizing effect on human rights realization. All that remains to be done in such a situation is to climb down the ladder of norms of international law from the universal to the regional or even to the sub-regional level where more homogeneous conceptions about the contents of these norms may exist.³⁵ In the West European framework, the fundamental character of the property guarantee may thus serve as an additional argument when determining the common legal convictions of all member states of the Council of Europe about the need for protecting property.³⁶

These few illustrations may suffice to demonstrate the utility of employing combination standards in international law, particularly in those areas of international law where hard law rules do not abound, but where, as in environmental law, or economic, social, and cultural human rights law, the need for concerted action is evident to all. In these areas, political scientists, sociologists, and scientists of related disciplines generally shy away from norm analyses, and when international lawyers restrict their norm analysis to classical `hard law' formulations, a gap is left that should definitely be bridged. For this practical reason alone, such inchoate norms should be regarded as an integral part of international law, not just as part of the discipline of international relations. For the focus of that discipline will generally be on mechanisms of interaction of political systems and of political actors, thereby belittling the factual importance of the legal standards outlined.³⁷

If one looks at another social human right, the right to work, one finds that its universal acceptance in the UDHR and in Article 6 of the UN Covenant on Economic, Social, and Cultural Rights of 1966 has been underpinned and concretized by more than 100 ILO conventions.³⁸ And these conventions openly utilize the `standard-setting' procedures, whereby universal norm formulation is joined with national law modes of implementation and regular references and controls in ILO expert fora.<sup>39</sup> At least 70 ILO conventions cover aspects of the right to work or of the rights in work/employment, even embracing on-site inspections. Another point to bear in mind is the fact that many states have altered their substantive law even without ratifying specific ILO conventions. The objective norms in such cases thus serve as motivators for the development of internal law, and may even function as warning lights for the legislators when debating bills, or when the `essentials' of such international human rights standards are in danger of being overlooked or neglected. If another metaphor is permitted to demonstrate the functioning of those combination standards, they may be compared to the accumulation of sand at breakwaters in land accretion measures by the seaside. Every norm by itself will have little or no effect, and will be swept out to sea again, so to speak. Only the correlation and combination of norms of differing nature, the interplay of breakwaters, groynes, sand, dry periods between two tides, and salt-resistant seaweeds gradually leads to land accretion and, by analogy, to a gradual solidification of such human rights norms. It is the presence of norms of varying degrees of legal obligation that mutually reinforce each other, and establish new forms of implementation which bring about significant changes of human rights realization within individual states and at the international level.

A review of these various types of norms shows that despite their clearly distinguishable functions they are, in practice, closely intertwined, correlative and co-variant in the sense that the reinforcement of one norm category also affects the other norm types of that combination standard. Thus, the rights to work and to own property are themselves bound into groups of other human rights, and are correlative in that respect, too. Property in relation to work as `work ownership' may receive special protection, and conversely, the right to work may represent the property surrogate rooted in the common aspect of subsistence guarantees.⁴⁰

The co-variance of such norms may be illustrated by an aetiological model of a norm relating to the right to work. Initially, only non-binding parameters or yardsticks are postulated as human rights standards that may or may not be applied, because sovereign states as yet are not prepared to accept stronger obligations. Through promotional obligations and other norms of aspiration, aided by a general climate friendly to human rights issues and the recognition of pertinent ethical values, and perhaps also by a sufficient number of norms of societal influence (habitual acceptance, the specific value selection of a particular legal community, and support by public opinion) pressure on an individual state legislator may become so strong that a legislator may even be forced to ratify human rights treaties of higher norm density. This process can be observed, for example, in the United States of America, where the difficulty of securing Senate majorities so far has prevented ratification of the UN Covenants on Human Rights. However, the mere existence of the pressures mentioned above is responsible for the continuing discussion on the ratification of the human rights covenants as well as for acceptance of at least a few of the more specialized human rights treaties. Although such promotional functions of standards can be observed in state practice, their actual use is certainly not a foregone conclusion. The value of such a model of norm co-variance lies solely in demonstrating that norms of different legal concreteness may interact co-variantly, and that sometimes, when political interest is aroused in questions such as the New International Economic Order, such norms may produce a sort of legislative `cascade' effect. Frequently, particularly if world public opinion is silent or indifferent to the issue in point, standards will only represent relatively isolated attempts at norm creation. In state practice, a norm cascade may occur quite frequently, as in the `Universal Bill of Rights', which was triggered off by the UDHR of 1948 and subsequently found its hard law formulation in the UN Covenants of 1966. Another case in point would be the series of resolutions and declarations about the New International Economic Order in the 1970s. Usually, attempts at norm setting begin at an isolated point of the `cascade', as a mere focus of opinion, resolution, recommendation, promotional obligation, or similar transpositive norm, in times hostile or indifferent to human rights realization. The movement may be from promotional obligations to lesser degrees of obligation, and ultimately even to a dilution or total extinction of the protecting effect of the initial stage of the cascade. By contrast, if states are favourably inclined, even the most loosely framed transpositive norm may trigger new political orientations, as the development of so-called third generation rights has shown<sup>41</sup>. One last example may illustrate this cascade model. The human rights catalogues - `nonsense upon stilts' in the terminology of Jeremy Bentham⁴² - at the end of the eighteenth century, could only be regarded as ethical norms of aspiration at the international law level until 1948; only at the national level did they achieve some significance. And yet, they had a profound influence on the substance of the UDHR of 1948, and even on the contents of the UN Covenants of 1966.

The purpose of this norm analysis in international law was to show that international law, if restricted to analyses of positive hard law norms will uncover only minimalistic legal structures which produce a distorted and incomplete picture, revealing only pointillistic or partial aspects of norm regulation in the community of states. Consequently, if one adopts such a positivist approach, only very few phenomena of state intercourse can be explained. The plea for decisionism in the sense of power politics would be an almost natural consequence. And, to follow the argument even further, such positivistic reductionism of a complex norm context would inhibit processes of change which only analysts trained in legal categories could adequately evaluate. Moreover, the insight would be lost that all positive and transpositive norm programmes are only elements of the process of substantial peaceful change. Each in its own way, every such norm seeks to strengthen political or societal processes geared towards renunciation of the use of force, which states abandoned in favour of strategies aimed at improving living conditions as a precondition for lasting peace and for material justice.⁴³

24 J. Austin, The Province of Jurisprudence Determined (1954) Chapter 1.

25 Cf. Riedel, supra note 5, Chapter 1 and 2.

26 Cf. J. Delbrück, Die Rassenfrage als Problem des Völkerrechts und nationaler Rechtsordnungen (1971) 108, with further references.

27 Cf. Riedel, supra note 5, at 149 et seq.

28 Cf. Tomuschat, `Die Charta der wirtschaftlichen Rechte und Pflichten der Staaten', 36 ZaöRV (1976) 444 et seq., at 478, 483; K. Hailbronner, Entwicklungstendenzen des Wirtschaftsvölkerrechts (1983) 21; Luchterhand, `Menschenrechtspolitik im KSZE-Prozeß', Aus Politik und Zeitgeschichte (Suppl. B 19/86) 23 et seq.; Schweisfurth, `Zur Frage der Rechtsnatur, Verbindlichkeit und völkerrechtlichen Relevanz der KSZE-Schlußakte', 36 ZaöRV (1976) 696, 699.

29 See Riedel, supra note 5, at 154 f; and authors in supra note 26.

30 Hailbronner, supra note 26, at 22.

31 Frowein, `Das Problem des grenzüberschreitenden Informationsflusses und des "domaine réservé"', 19 Ber DGVR (1979) 22.

32 Verdross, Simma, supra note 2, § 657; see also Jabloner and Okresek, `Theoretische und praktische Anmerkungen zu Phänomenen des "soft law"', 34 ÖZöRVR (1983), 229 et seq.; Schreuer, `Die innerstaatliche Anwendung von internationalem "soft law" aus rechtsvergleichender Sicht', 34 ÖZöRVR (1983) 243 et seq.

33 See, for example, T. Buergenthal, R. Norris, D. Shelton, Protecting Human Rights in the Americas (2nd ed., 1986); by the same author, International Human Rights (1988) 81 et seq., 123 et seq., 171 et seq.; P. Kunig, W. Benedek, C.R. Mahalu, Regional Protection of Human Rights by International Law: The Emerging African System (1985); Riedel, `Menschenrechte der dritten Dimension', EuGRZ (1989) 9 et seq.

34 Riedel, supra note 5, at 156 et seq.

35 Cf. Riedel, `Die Meinungsfreiheit als Menschenrecht und ihre Verbürgung durch die Europäische Menschenrechtskonvention', in J. Schwartländer, D. Willoweit (eds), Meinungsfreiheit, Grundgedanken und Geschichte in Europa und USA (1986) 275 et seq., 278.

36 Riedel, `Entschädigung für Eigentumsentzug nach Art. 1 des Ersten Zusatzprotokolls zur Europäischen Menschenrechtskonvention', EuGRZ (1988) 333 et seq.

37 Cf. L. Sohn, T. Buergenthal, International Protection of Human Rights (1973) preface, vi: `Apart from their individual legal significance, each of these acts is a complementary element of a single law-making or institution-building process which derives its authoritative character from the legal consequences that attach to the cumulative effect or interaction of these acts'; see also Dillard, `Some Aspects of Law and Diplomacy', RdC II (1957) 449 et seq., at 497; Randelzhofer, `Völkerrecht und internationale Beziehungen', 58 Friedens-Warte (1975) 252 et seq.; Kimminich, `Teaching International Law in an Interdisciplinary Context', 24 AVR (1986) 143 et seq.

38 See International Labour Conventions and Recommendations 1919-1981, Geneva 1982, passim; see also E. Fried, Rechtsvereinheitlichung im internationalen Arbeitsrecht (1965;) N. Valticos, International Labour Law (1979) 89 et seq.

39 Riedel, supra note 5, Chapter 7.

40 See, as regards this problem which cannot be pursued here, Riedel, supra note 5, at 163; Häberle, `Arbeit als sozialrechtlich vermitteltes Eigentum im Sinne des Art. 14 GG', in Mitteilungen der Landesversicherungsanstalt Oberfranken und Mittelfranken (1982) 483 et seq. and response by W. Rüfner, ibid., 486 et seq.

41 Riedel, supra note 31, at 9 et seq. and same author, supra note 5, Chapter 6.

42 J. Bentham, Anarchical Fallacies, Works Vol. II, (1843) 489 et seq., at 502: `Natural Rights is simple nonsense: natural and imprescriptible rights (an American phrase) rhetorical nonsense, nonsense upon stilts ... nature has given no such right to anybody ... what is every man's right is no man's right, as that which is every man's business is no man's business'.

43 See Delbrück, `Zum Funktionswandel des Völkerrechts der Gegenwart im Rahmen einer universalen Friedensstrategie', 58 Friedens-Warte (1975) 246 et seq.; Simma, `Völkerrecht und Friedensforschung', 57 Friedens-Warte (1974) 65 et seq.; Kewenig, `The Contribution of International Law to Peace Research', Journal of Peace Research (1973) 227 et seq.; Randelzhofer, `Der normative Gehalt des Friedensbegriffs im Völkerrecht der Gegenwart - Möglichkeiten und Grenzen seiner Operationalisierung', in J. Delbrück (ed.), Völkerrecht und Kriegsverhütung (1979) 13 et seq.

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