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Standards and Sources.
IV. Conclusion: The Utility and Limits of Standards
As has been discussed above, standards fulfil many functions. Foremost amongst them are their roles as tools of interpretation, and guidelines or yardsticks of reasoning for existing but open hard law rules and principles. Standards may also be employed to bridge gaps in the law conceptually, paving the way for future legal developments, as promised under the heading `progressive development of international law' in Article 13 of the UN Charter. Standards also serve as mere orientation marks, or as model clauses in non-codified legal orders, and frequently will appear in the shape of `zebras', containing obligatory and non-obligatory norm components concurrently. It is submitted that standards in all these functions have an increasing role to play and explain, better than the traditional sources triad, processes of international law-making and legal application wherever binding and non-binding norms coalesce.
Useful as standards may be, a word of warning about their scope and limits seems warranted. They are useful, when `zebra' situations are at issue, when the complementary nature of `hard' and `soft' norms, or better, of norms of different degrees of hardness, is relevant. They are dangerous if meant to replace hard law-sources. The sources triad of Article 38(1) of the ICJ Statute always has predominance as far as it goes. But the point made here is that large areas of international law concern precisely fields which are not covered, or are only partially covered by rules emanating from the sources triad. Another danger would be to attribute the binding character of one standard component to the non-binding parts of it: the individual legal relevance of each component should always be borne in mind. To avoid incorrect inference, the `hard law' - `soft law' dichotomy certainly is not resolved by utilizing the concept of standards and combination standards. And yet, the value of these standards lies in channelling future developments, outlining programmatic intentions, stressing aspirations, and generally providing a penumbra of shadows around the hard norm core.
In individual disputes, courts and tribunals and other decision-makers in international law can use these standards, while faithfully abiding by the existing sources delineated in Article 38(1) of the ICJ Statute. Standards, thus, are signposts, landmarks, buoys in the open sea. Actors other than the ICJ are ultimately much freer in international law to develop and apply standards,71 and may utilize them in specific instances, but may also ignore them, if they feel so inclined. From a systematic point of view standards are a definite new source, and certainly more than subsidiary means for the determination of the traditional sources triad. They have a useful role to play in their own right, and should be seen in that light.
71 And it matters little then, if only isolated decisions of tribunals and diplomatic incidents can be mustered; contra, see Lang, supra note 67, at 154.
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