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LIMITATIONS OF SOFT-LAW SHOW THAT IT S NOT A PROJECTION OF HARD

LAW - By Samantha Welagedara
(This is temporarily published for a limited purpose the Author and not permitted to use for any unintended

purposes)

Overview of research

The global legal system is a fabrication of many traditional sources and

innovations developed thereupon. Law had continuousl y proliferated to cater the

upcoming issues in the international transactions and it is believed that ―soft

law‖, which encompasses principles, codes of conduct, resolutions, declarations,

statements, codes of practice etc., to be such a proliferation of traditional law,

also known as ―hard law‖.

This research is to explore the realit y of this belief through the limitations of

their application. If soft law is a further development or invention of traditional

law, it should have some parental affinit y to hard law. This examination is

mapped in several directions to find the fundamental differences of the soft law

and hard law. Such d ifferences are observable with reference to the following

elements: (a), procedure of enactment, (b) jurisdiction, (c) application, (d)

recognition and (e) binding (f) limitations.

This research mainly selects ―limitations‖ of soft law in order to evaluate the

statement ―soft law is a proliferation of hard law‖ on the following argument:

The prevalent hard law is codified in accordance with an accepted traditional

legislative course of action. Hard law can be amended or a new law can be
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enacted when the exi sting laws can‘t address contemporary issues. Such new

laws or amendments always widen the horizons of prevalent law overcoming the

limitations of hard law. The bottom -line of the judiciary is hard law and soft

law can claim the access to the courts onl y a s a term, condition or clause of a

contract, agreement, MOU, treat y etc. but it directl y cannot steer the judiciary.

If it is in the place of hard law ― they must be enforceable by courts or quasi -

courts‖ 1 therefore‖ it cannot and should not be called ‗law‘‖ 2.if a soft law is a

definite proliferations of hard law, why it is not enforceable? Has it dropped its

recognition in the process of proliferation?

In this study, the soft law is mostl y represented by t he code of conduct and CSR

bulletins of Wal-mart which also represents global outsourcing entit y and

occasionall y referrers the treaties and soft law products of international

organizations; hard law is symbolized by deferent statutes and case law and

amicus Curiae interferes as an evaluative yardstick.

Definitions and conceptions

Hard Law

The ―Hard law‖ stands as an umbrella term for all the traditional laws and as an

opposite term for ―soft law‖. The term ―hard‖ is an additional adjective to the

use of the term ―law‖, but we may use it to distinguish this kind of law from

―soft law‖ 3.Therefore all the definitions of ―law‖ is applicable to the ―hard law‖.

Hard law is composed by legislation, by a governing body of a state; it can be

the parliament or co ngress. Legislation can be confirmed by the executive

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branch of government and then it enters the courts as an enforceable law. We

use ―hard law‖ in this research in above context. The ―hard law‖ may also be

cited as ―traditional law‖ considering its form al domestic way of enacting in a

traditional manner.

Soft law

The soft law frames the entire literature of codes of conduct, standards,

principles, ethical standards, guide -lines and MOUs up to treaties. There is no

clear definition for soft law, however, many cite the interpretation given by

Snyder, ―rules of conduct which, in principle, have no legally binding force but

which, nevertheless, may have practical effects‖ 4, as a definition; The phrase ― in

principle‖ says that such ―rules‖ don‘t contain any enforceabilit y ―by birth‖ as

traditional law does. Due to its poor enforceabilit y, some traditional law experts

have concluded that the obligations in soft law ―are neither soft laws nor hard

law: they are simpl y not law at all‖ 5.

In one end soft law can r epresent a brief list of few standards set by a small

organization and on the other end it can be a detailed treaty of international

concern. It is clear that soft law has certain impact on the hard law but its links

with law have ―to be specified at every turn and therefore do not show a uniform

value of intensit y with regard to their legal scope‖ 6

In this research, soft law is represented by a selected code -of-conduct of a

transnational corporation (Wal -mart) for the ease of study.

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Limitations

This research consider the limitations the soft law encounters in (a)

implementation (b) codification or drafting (c) case law and litigation in order

to find whether soft law is a ―law‖ that has been proliferated by traditional law.

“Legislation” of soft law

Ethical standards are voluntaril y created by many organizations operated locall y

and internationall y without any enforcement from any statutory body. The soft

law instrument we discussed in this research is the code of conduct of Wal -mart

Inc. Wal-mart introduced ―Standards for suppliers‖ (code -of-conduct of Wal -

mart) in 1962 as an own ―product‖. it was not demanded, in this form, by public

or consumers of products and it was not necessary to evaluate the public opinion

at drafting this soft law neither the soft -law makers in Wal-mart basicall y

responsible for the public for their codification. This process of codification is

not parallel to the enactment of domestic laws by a legislature which represent

the public opinion.

The poor interest in the opinions of sta keholders, trade unions or consumer -

groups in drafting soft law shows its disconnection from the traditional law

which gives plent y of opportunit y for the public opinion through representation.

The international treaties which are considered as the most de veloped and

carefull y drafted soft -law.

The Vienna Convention on the Law of Treaties established the guide lines for

composing a treat y and Article 07 categoricall y demand the full power of the
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representatives from sovereign states which participate shapi ng the treat y.

Therefore, the Article 07 restrains the public opinion of a state through

representation though. Therefore we can say a process of making a treat y is

s ymbolicall y parallel to the law -making process:‖ Heads of State, Heads of

Government and Ministers for Foreign Affairs, for the purpose of performing all

acts relating to the conclusion of a treat y‖ 7. These all are government

representatives responsible to the public and elected by the public. (The process

of ratification is more full y discusse d in a separate chapter, in this reach)

Application and Jurisdiction

The traditional law is adequatel y clear about its jurisdiction or it can be

clarified by interpretations: California Corporation Code, under section 102 -

103, specifies the frame of its application as‖ Every corporation organized

under the laws of this state, any other state of the United States or the District

of Columbia or under an act of the Congress of the United States…….‖ 8. The

transnational organizations are not limited to one geo graphic area; therefore, the

soft laws introduced by them are discussed in a global context.

One ‗supplier‘ for Wal -mart may be doing business in China while another ma y

be doing in Guatemala. Therefore its judicial territory is rather global and this

distinction falls soft law into permanent dependency on the traditional laws

(hard laws) in the countries where Wal -mart supplier is globall y positioned. If

the supplier is in Egypt the soft law set to be dependent on the (local) hard law

in Egypt: The soft l aw invented by Wal -mart says ―Suppliers must compensate
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all workers with wages, overtime premiums, and benefits that meet or exceed

local legal standards‖ 9.

The wages set out in the laws in Egypt is deferent to China. If the soft law is

another law, it do esn‘t need to depend on various local laws in deferent

countries and, instead, Wal -mart‘s soft law could set out its own ‗minimum

wage‘ and ‗overtime premium‘ for all the suppliers operated in all the countries.

This dependency is an acute limitation in so ft law and it has failed to sustain its

own ‗order‘ without linking it to hard -laws proving that soft law is not another

‗law‘.

Equity of (Soft) Law

The soft laws fabricated by transnational organizations are partl y or full y

superseded by local hard laws in the countries where they operate the business.

Therefore the workers doing exactl y the same job for Wal -mart in deferent

countries are ruled by deferent had -laws and receiving deferent benefits while

they are under same soft -law of Wal-mart.

The compens ation for losing the full finger by an industrial injury, in Jordan, is

all y deferent to the same in China. The workers in both factories are doing same

job for Wal -mart. Is that workers‘ problem that they get deferent compensation

for them Health & Safet y issue?. Therefore the soft law doesn‘t seem to be

disciplined by basic principles of legislation.

The ‗natural law‘ and ‗natural rights‘ are fundamentall y linked in hard -law. The

equit y, ―Lex Naturalis in Latin, is an ethical theory that posits the exist ence of a
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law whose content is set by nature and that therefore has validit y everywhere‖ 10.

Does soft law has its validit y and recognition ‗everywhere‘ they operate the

business?. It has been failed to establish equal rights for its employees in the

global suppl y-chain. Since soft -law doesn‘t base on the principle of ‗equit y‘, it

is not a law or any proliferation of hard -law. If Wal -mart‘s soft law is a global

(international) law it should supersede the regional laws of respective countries

or, at least, it should have been recognized as an alternative law by the

subcontracting countries.

It is clear that, in ‗standard for suppliers‘, Wal -mart strategicall y or

normativel y subdue to the local hard -laws:‖Suppliers shall comply with all local

and national laws and regulations of the jurisdictions in which the suppliers are

doing business as well as the practices of their industry. Should the legal

requirements and practices of the industry conflict, suppliers must, at a

minimum, be in compliance with the legal r equirements of the Jurisdiction in

which they are operating ”, therefore sot-law is unable to overcome and the

discriminative and inequitable situations possible under deferent legal systems

in deferent countries; this limitation shows that soft law is not up to the

fundamental principles of traditional legislations and therefore not in the place

of ‗law‘. Further, in ‗Standards for Vendors‘ Wal -mart says ―Vendor Partners

shall comply with all import requirements of the U.S. Customs Service and all

U.S. Government agencies. Necessary invoices and required documentation must

be provided in compliance with U.S. law ‖ 11;

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Wal-mart ‗enforces‘ the U.S law in other countries onl y with relation to the

Customs Services showing that soft law is functioning onl y as ‗switcher‘ that

refers the right legal issues to the right law in the relevant country.

Limitations of traditional law that demand for soft law

The traditional law can‘t reach the ‗soft corners‘ of the issues which are not

directl y included or discussed in the hard laws, acts or ordinances: the Securit y

and Accountabilit y For Every Port Act of 2006 which is known as SAFE Port

Act was escalated into a law by president Bush on October 13, 2006 but this act

couldn‘t cover everything related to ‗custom and bord er protection‘. This law

established seven fold securit y measures that are important for border

protection:

(1) Additional requirements for maritime facilities

(2) Creation of the Transportation Worker Identification Credential

(3) Establishment of interagency operati onal centers for port securit y

(4) Port Securit y Grant Program

(5) Container Securit y Initiative

(6) Foreign port assessments

(7) Customs Trade Partnership against Terrorism ( C -T P AT )

C-TPAT establishes securit y measures the oversea suppliers must follow at

manufacturing and exporting goods to US companies like Wal -Mart, K-Mart,

Macy‘s etc. It is important to look into the practice established by C -TPAT

for understanding the relationship between hard law and soft law. This shows

the soft law is a shadow cast by traditional law. C-TPAT ―works with the
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trade communit y in adopting tighter securit y measures throughout their

international suppl y chain s‖ 12 and this is a ―voluntary program with a ―trust

but verify‖ focus and, as such, the program must take immediate action to

suspend or remove members that are not in compliance with the program‘s

minimum securit y criteria‖ 13 if this statement is compared to the following

phrase in ―Standards for Vendor Partners‖ which is a voluntary soft -law

product of Wal -mart, ‖Any Vendor Partner w hich fails or refuses to compl y

with these standards is subject to immediate cancellation by Wal -Mart of all

its outstanding orders with that Vendor Partner as well as refusal by Wal -

Mart to continue to do business in any manner with that Vendor Partner‖ t he

action for noncompliance to the regulations is to ―remove or ―cancellation‖

and it doesn‘t consider any legal action against the violators; Wal -mart is

nongovernmental, transnational business body and Customs and Border

Protection (CBP) is government wi ng of US Home Land Securit y and C -

TAPT (soft -law) invented by Government was based on the legislation of

SAFE Port Act of 2006 but still C -TPAT cannot be implemented as a law and

cannot be directl y challenged in the courts, in a chamber of arbitration or in

any legal authorit y.

This shows, in certain cases, the ‗soft -law‘ is a projection of traditional law

but it‘s not a law and soft law is fabricated to fill the gap between the

traditional law and practical issues that is not categorically addressed by

traditional law.
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Hard (Traditional) Law Soft Law projected by Hard Law Practical Issue to be solved
Customs Law
C-TPAT Container Inspection*
[Safe Port Act]
Voluntary Labor Standards
Labor Law Holding of workers‘ Passports
[Standards for Suppliers]
Environmental Standards
Environmental Law Handling of Waste Water
[Standards for Suppliers]
Immigration Law Compliance to Immigration Law Inspection of Recruitment
[Standards for Suppliers] Agencies
Hard law doesn‘t categorically determine the practice
Soft law is designed to address the practical issue
being based on traditional legislation

(*’ co n ta in e r in sp ec tio n ’ i s o n e o f th e p ra c tica l i ssu e s to b e a d d r es s b y so ft la w a n d n o t

th e o n l y i s su e fo r wh i ch C-TPAT i s a n d so a re th e o th e r exa mp le s )

Therefore, it is clear that soft -law is an instrument that coordinates the message

of law to the unaddressed corners of interest; ‖the first reason states might

choose soft law is to solve a straightforward coordination problem‖ 14.

Nonbinding attributes in soft law

The US Department of States, providing‗guidance on non -binding documents‘

distinguishes the qualities of binding and non -binding ‗agreements‘. According

to the Department of States, if a document is to avoid its obligations under

international law, it should avoid the following constructions:

It ‟should avoid using the terms ” treat y ” or ” agreement ” ‖

15
 and using ―a

title such as ‟Memorandum of Understanding ” ‖

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which is another form of

soft-law can avoid the document being bonded by its obligations.

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 Department of Sates advices to avoid ― using terms “Parties” in non -

binding documents. Rather, we encourage the use of other terms such as

“Participants ‖‖ 17. The transnational business organizations are deepl y

concerned about keeping the non -binding qualities in their soft -laws using

this terminology:

Wal-mart signed a Memorandum of Understanding with –Environmental

Certification Center of Ministry of Environmental Protection (MEP) in Beijing,

China – 2008 and that document was titled as ―Participants to cooperate in

information exchange, green store standards drafting and certification‖ 18;

whoever participates in this program will be participant and not a ‗part y‘ which

is a sensitive term in litigation.

 Department of States also advices not to use the following words in soft -

law to sustain the non -binding status:

Avoid these binding phrases Replace them with these non -binding phrases

Shall, Agree, Undertake Should, Intend to, Expect to

Is to come into operation OR activities are to

Entry into force
commence

Done at‖ or ―Concluded at -Don‘t use any specification -

Parties Participants

Treat y, Agreement Memorandum

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The implied purpose of this ‗word -processing‘ is to protect business

organizations being responsible for unethical business relations and furthermore

to avoid being litigated in courts for violating the terms and contractual

obligation in the soft -law documentation they use down the suppl y chain of the

business. In simple, these strategic drafting of soft law weakens its

enforceabilit y which is important for soft -law to be present as a Law.

However, Dixon questions in ―Textbook on international law‖ ―is it reall y true

that the test of the binding quality of any 'law' is the presence or absence of

assured enforcement of its rules?‖ 19. According to Dixon‘s conceptions, ‗binding

qualit y‘ is not the only factor with what we can decide whether the soft -law is a

law or not. A national law becomes a law ―not because it will be enforced‖ but

because it is generall y accepted as such by the community to whom it is

addressed‖ 20.

Let us examine whether Soft -Law becomes a law sinc e the soft is ―generall y

accepted by the communit y‖; Doe v. Wal -mart was filled, by a communit y of

workers to whom Wal -mart‘s soft-law was addressed, under California‘s unfair

competition law (UCL). Wal -mart‘s soft-law (Standards for Suppliers) was the

fundamental document in the case and by which Wal -mart promised the workers

(in its global suppl y chain) satisfactory working conditions under their

supervision.

However, the ‗Standards for Suppliers‘ was not enforceable on Wal -mart by the

workers since they are not a direct party of suppl y chain: Gould, the Circuit

Judge held that ―this language does not create a dut y on the part of Wal -Mart to
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monitor the suppliers, and does not provide Plaintiffs a right of action against

Wal-Mart as third -part y beneficiaries…… We agree with the district court that

this language does not create a dut y on the part of Wal -Mart to monitor the

suppliers, and does not provide Plaintiffs a right of action against Wal -Mart as

third-part y beneficiaries‖ 21 regardless of Plaintiffs‘ a rgument ―that Wal -Mart

promised the suppliers that it would monitor the suppliers‘ compliance with the

Standards, and that Plaintiffs are third -part y beneficiaries of that promise to

monitor‖.

This context points out four limitations that show soft law is not a ‗law‘ on the

place of traditional law.

 Enforceabilit y in soft law depends on the technical relativit y to its parties

and not on the mere belief or ―general acceptance‖ as Dr.Dixon 1 9 (of

Cambridge University) once concluded.

 Non-binding attribute i s widel y quoted as the identit y of Soft Law but it

can be used as source documents in cases as a quasi legal 22 platform but

not a product of traditional law. Binding force has been considered b y

many as the key to decide whether Soft law is a law or not and most agree

that soft law neither a law as it lacks comprehensive binding power nor a

source of law 23.

 Soft law cannot approach the litigations alone it has to come by the

vehicle of a traditional law such as Fair Competition Law (UCL), Alien

Tort Claims Act (ATCA) or Contract Law.

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 Soft Law is codified in a literal language without focusing on

fundamentals of legal drafting and it shows that soft law is not

proliferated by traditional law.

As Mary Ann Glenden says Universal Declaration of Human Rights of 1948 took

the form of a Soft -Law because of the possible rejection by the US senate 24 as

such approval (ratification) to this declaration binds the United States to compl y

with the standards set forth by universal declaration of human rights; when it

took a form of a soft law it lost its binding force; consequentl y no litigation

became feasible.

Paths of two sources

The basic classification about soft law doesn‘t comprehensivel y build its

relations with other sectors. Some scholars include treaties and other forms of

soft-law in one group. Some critics seem to classify Treaties and an advance

product of soft-law. As Dr. Roberto Andorno, senior research fellow of

universit y of Zurich says there are two main sources of International Law:

 Treaties

 Customary Law

 Soft-Law

―Soft law is a third source of international law that has rapidl y developed in
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recent decades, especiall y to deal with sensitive matters‖ . Consequentl y we

can see that Soft Law, Treaties and Hard Law take three deferent routes to reach

the judiciary.
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Treaties usuall y are agreements signed between two or more countries and it can

be between sovereign states and an international organization. However,

Treaties and other soft -law instruments have certain similarities and also some

differences. Their paths, however, indicate soft law‘s access to the judiciary is

deferent to that of hard law. The Government makes the traditional law by

legislative activities and it can be implemented by judiciary without having any

other instrument in the midd le. Usuall y, non-governmental organizations make

soft-law but it has no direct access to the judiciary‘ that soft law has to be

considered by a stakeholder who has interest with the issue related to the soft -

law and then it has to find a way to ‗bind‘ it t o an instrument ( U C L , AT C A

Contracts, Agreements etc.) of traditional law and then it can reach the courts.

Soft law has to go through this circle since it is not a law. However, if we

consider the Treaties as a part of soft -law, it binds to its obligations by the

process of ratification and reach ‗International Courts‘; the process of

ratification is completed by the sovereign states it is similar to the legislation of

a traditional law in a legislature (parliament or congress). Therefore the soft -

laws which are known as Treaties become a part and parcel of traditional

(international) law and for this reason someone can misunderstand the entire

field of soft -law as another ‗law‘ or to have been a proliferation of hard -law.

This limitation of having no direct access to courts can be scattered in following

array:
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Law Judiciary Binding Stakeholder Sof t Law Organizations

Trade Unions Codes of Transnational

Traditional Employees conduct Organizations
Law Unfair Standards
Courts NGOs
(Hard Law) Competition Ethics NGO / INGO
Consumers
Law MOUs
Alien Torts Act
National/ Local
Organizations
Contracts
International Agreements
Treaties State / Govt.
Courts Organizations
Ratification

International human rights and humanitarian law - Such ―soft law‖ has ―hard

law consequences‖ through other international enforcement mechanisms 25.

International Treaties, in a way, cannot be classified under soft -law: in the case

related to Aerial Incident (1955), Bulgaria v. Israel, Israel held that

international treaties (Chicago Convention / Convention on International Civil

Aviation) ―illustrate the appropriate rules of international law and as a means

for the determination of the International Standards‖ 26, therefore, the treaties are

an integral segment of international law and they establish international

standards, too; however, th ese standards are in the place of law and not similar

to the standards that are published in soft -law documentation, in terms of

influencing the judiciary.

Hard law doesn’t ignore Treaties

The Treaties are governed by another ‗master law‘ which is known as ‗Law of

Treaties‘ 27 and any nonconformit y can be considered under Vienna convention of

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Treaties but soft law doesn‘t have any ‗infrastructure‘ to coordinate the soft -law

instruments which are, therefore, innumerous in shapes, forms and contents. As

it is established in a previous chapter, the Treaties if considered as a part of

soft-law, the treat y-based-soft-law is adequatel y close to the ‗hard law‘ and

therefore, we can consider treaties as part of ‗hard -law‘ (international law).

Consequentl y treaties are not clashing with traditional laws and their terms are

not negating each other. However, in this sense a document cannot be a treat y

since it is named as a ‗treat y‘: the Vienna CSR Treat y 28 cannot be considered as

a treat y or a hard -law instrument yet it i s a part of soft -law; because that

document is not basicall y between sovereign states or between a sovereign state

and an international organization; moreover, its content is not either way

binding.

On the one hand some soft -law products have been drafted to be in-line with

prevalent hard laws and international treaties, on the other hand some hard laws

trying to be in accordance with certain values in treaties: Labor Law in Jordan,

where many of US transnational companies are doing business under US Free

Trade Agreements (FTA), says under Article 56(a) of No 08, 1996,‖ The

working hours shall not exceed eight per day and fort y eight hour per week

except in the cases stipulated by this law, the time allocated for meals and rest

shall not be calculated; this law is based on Article 02 of ‗Hours of Work

(Industry) Conventio n(C1), 1919‘ established by International Labor

Organization: ―The working hours of persons employed in any public or private

industrial undertaking or in any branch thereof, other than an undertaking in

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which onl y members of the same famil y are employed, shall not exceed eight in

the day and fort y-eight in the week‖.

Hard law is so more consistent with relevant international treaties and

contradictions are very rare. The status of soft law is totall y deferent and

contradictions are quite often. The reason why onl y soft-law tend to be

controversial with treaties is clear: if a traditional law of a state violate an

internationall y recognized treat y, there will be social conversation in the

targeted societ y about the consequences of such contradictions becaus e there is

a certain communit y which is directl y effected by that law which doesn‘t share

the benefits of international treaties; the domestic laws which are so contradict

with international treaties (conventions) can be further confusion in courts. We

don‘t see such serious social -dialogue when a soft law is drafted against

international conventions (treaties) because the soft -laws not seriousl y affect its

intended communit y since such soft -law instruments cannot be productivel y

challenged in courts. This shows that contents of soft laws are ―simpl y not law

at all‖ 29.

Macy‘s and Wal-mart directl y violate Article 02 of ‗Hours of Work (Industry)

Convention (C1), 1919 which was established by International Labor

Organization. This treat y has been ratified by 47 countries; Austria, France,

Ital y and Latvia have conditionall y ratified this convention. Many states follow

these principles at drafting their labor laws (hard law). Macy‘s soft law, under

their code of conduct says ‖suppliers‘ factories should be workin g toward

achieving a 60-hour work week on a regular basis. Employees shall not work

more than 72 hours per 6 days‖ 30 and Code of Conduct of Wal -mart says
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―Suppliers‘ employees shall not work more than 72 hours per 6days‖. These

regulations established in th eir soft-laws given the opportunit y for the

employers to employ the workers up to 72 hours in a week. As ILO has

established the normal working hours as 48 hours, the employees working for

Wal-mart and Macy‘s working additional 24 hours (72 -48=24) on overtime

basis.

ILO lets the employers to employ the workers more than 48 hours on following

conditions:

 ―The limit of hours of work prescribed in Article 2 may be exceeded in cas e

of accident, actual or threatened, or in case of urgent work to be done to

machinery or plant, or in case of "force majeure", but onl y so far as may be

necessary to avoid serious interference with the ordinary working of the

undertaking‖ 31

 ―The limit of hours of work prescribed in Article 2 may also be exceeded in

those processes whi ch are required by reason of the nature of the process to

be carried on continuousl y by a succession of shifts, subject to the condition

that the working hours shall not exceed fift y -six in the week on the average. 32

 agreements between workers' and employe rs' organizations concerning the

dail y limit of work over a longer period of time may be given the force of

regulations, if the Government, to which these agreements shall be

submitted, so decides 33

Wal-mart is silent on these conditions and its objective i s to‖ working toward

achieving a 60 -hour work week on a regular basis‖ whereas ILO says it should

not exceed 56 hours a week; Wal -mart doesn‘t demand the consent of workers‘
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organizations and approval of government authorities in exceeding 48 hour

margin established by ILO Treat y, in their ‗Standards for Suppliers‘.

Neil Kearney, General Secretary of the International Textile, Garment and

Leather Workers‘ Federation (ITGLWF) says ―Fourteen hour work days are

abusive‖ (Wal -mart says in COC that workers can ― work more than a maximum

total working hours of 14 hours per calendar day‖ and this is contradictory to

the 8 hour working day of ILO which can be exceeded onl y on conditions we

specified above). Neil criticizes Wal -mart‘s approach to violate an Internatio nal

Treat y by its Soft -Law: ―As far back as 1919, the International Labour

Organisation established eight hours a day or 48 hours a week should be the

limit.‖ 34 The opportunit y to violate an international treat y by a soft law is quite

possible as ‗soft law ‘ is not a law against which the litigation process is

productive and fruitful.

―the institution of ratification grants states the necessary time -frame to seek the

required approval for the treat y on the domestic level and to enact the necessary

legislation to give domestic effect to that treat y‖ 35 which is going to be ratified

by a state. In this case the government of the state gets the opportunit y to

explore for the potential clashes between the new treat y and existing domestic

(hard) laws and not onl y to introduce new laws to acquire ‗domestic effect to

that treat y‘. Consequentl y the states get the opportunit y to eliminate the

possibilities for clashes between international treat y and local (hard) laws.

Therefore, hard law doesn‘t convincingly clash with international treaties as

soft law does because international treaties are proliferated or co -developed by

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hard laws but soft law is not so projected by hard law and therefore not

necessary to be alert about potential clashes with international treaties(la w).

Ratification of laws

The process of ratification can be examined as a reliable guide to determine the

placement of soft law and international treaties: International treaties which are

recognized by ratification of sovereign state cannot be treated as a part of soft

law but treaties such as Vienna CSR Treat y 2 6 which is a voluntary code shared

by international or local business organizations become an integral part of soft

law because its process of ratification is not parallel to the ratification of an

international treat y by a sovereign state. Besides they don‘t have particular

uniformed process for ratification and they are required to be ratified.

UNESCO says the ―soft law agreements differ from treaties in that they do not

require formal ratificati on by states and, therefore, can have a more direct and

rapid influence on the practice of states than treaties‖ 36

Glossary of terms relating to Treaty Actions 37 interprets the process of

ratification as a course of transformation that link the international treaties to

national (domestic / local) laws: “t he institution of ratification grants states the

necessary time-frame to seek the required approval for the t reat y on the

domestic level and to enact the necessary legislation to give domestic effect to

that treat y. Any process of obtaining parliamentary approval for ratification is

not ratification, though often mistakenly referred to as such. This procedure is

localising treat y's principles and obligations in to national law and is called
 22

Transformation‖. This shows that approval of Legislature to a Treat y is not

‗ratification‘ but such approval is important according domestic laws: "Treat y"

has a much more rest ricted meaning under the constitutional law of the United

States. It is an international agreement that has received the "advice and

consent" (in practice, just the consent) of two -thirds of the Senate and that has

been ratified by the President‖. It is im portant for the legislature to involve in

approving a Treat y as it does in passing usual Act or (Hard) Law. In this case

hard law and treaties are demanding similar requirement of being approved by

legislature even though it is not the absolute meaning of ‗ratification‘ according

to the ‗law of treaties‘. According to this similarit y of prerequisites, it is not

unfair to believe the international treaties to have been proliferated by

traditional hard law mimicking the traditional law (domestic hard laws).

According to the above characteristics, we can separate international treaties

from Soft-Law and then let us evaluate the status of other forms of soft -law with

respect to the process of ‗ratification‘. The soft -law introduced by deferent

organizations not becomes an element of national laws. It is not possible to find

any ratification process which is parallel to the ratification of a Treat y or a Hard

Law with regard to the establishing of a soft law. The soft law instrument of

Wal-mart doesn‘t demand and ratification. When a supplier enters into any

agreement with Wal -mart they have to accept the ‗standards for suppliers‘. It is

not a primary object of the ‗Supplier‘ to endorse ‗standards for suppliers‘; the y

do that because a Supplier cannot enter into th e suppl y chain of Wal -mart
 23

without accepting their soft -law, ‗standards for suppliers‘ and Wal -mart‘s soft-

law is onl y for the parties doing business with Wal -mart. However if another

business organization which is not doing business with Wal -mart may

voluntaril y accepts Wal -mart standards for implementation it can be taken as a

characteristic of Treaties because Treaties can be ratified by a state due to their

interest in the objectives of a Treat y: There are 187 countries ratified Kyoto

Protocol which kno wn as United Nations Framework Convention on Climate

Change, which was invented by United Nations but America didn‘t ratified it yet

considering the complications of domestic gas emission and its impact on

industries. Therefore a Treat y is not an instrumen t generated by one part y and

enforced on a stakeholder as it happened at implementing the Soft -law in most

cases.

Provisions in treaties and other international agreements are given effect as law

in domestic courts of the United States onl y if they are "s elf-executing" or if

they have been implemented by an act (such as an act of Congress) having the

effect of federal law 38, so that it is not impossible for the citizens to be

benefitted by a ratification of an international treat y by national government.

When a government entered into a Treaty to protect the environment the entire

world gets the benefits. However, what happened with regard to the soft law so

accepted by a suppler or stakeholder is totall y deferent: Suppliers of Wal -mart

operating in China, B angladesh, Indonesia, Swaziland, and Nicaragua didn‘t

fulfill the terms demanded by the soft -law of Wal -mart and suppliers violated
 24

the rights of employees but in Wal -mart v Doe, the court denied the employee‘s

rights to hold Wal -mart responsible for its f ailure to make sure the ‗standards

for suppliers in operation on the ground that this soft -law ―does not provide

Plaintiffs a right of action against Wal -Mart as third -part y beneficiaries‖ 39. Soft

law can‘t reach the courts due to its non -binding nature and, in above case, the

employees tried to claim the rights under the domestic laws of California and

therefore the final verdict is measured under the domestic law not in accordance

with the terms of soft law. Therefore the Suppliers approval (‗ratificati on‘) for

Wal-mart‘s was not recognized as employees‘ ratification to the ‗standards of

suppliers‘. However, by formal ratification process required by Treaties demand

the consent of the legislature which is the representative body of the public.

Therefore the consent of the government is deemed as the consent of public but

in soft law-instruments as such of Wal -mart don‘t take the employers consent as

the consent of employees or it separates Employer as a part y and employee as a

third part y beneficiary whos e rights can be interpreted in accordance with a

domestic law which is referred by the courts. By all these attribute soft law

shows that it doesn‘t have any relations or roots driven to the traditional law

and soft law is onl y a dependent on traditional l aw.

Conclusion

The collection of law -like instruments which are classified under international

law is known as ‗soft -law‘ and it doesn‘t have any particular structure it can be
 25

present of numerous forms. Soft -law doesn‘t fulfill any basic requirement to b e

categorized as a ‗Law‘ and its non -binding behavior is remarkable deficit that

denies its relations to the traditional hard -law. Soft -law instruments doesn‘t

comprise any formalities or tradition and nor does it compl y with basic

formalities of tradition al legislation procedures; however, it easil y reaches the

corners that Hard -Law is too traditional to reach.

Soft-law has proliferated itself into many forms and soft law carries abstracts,

references and quotations which have direct referred to hard -law, therefore, soft

law is often misunderstood to have been proliferated by hard -law. The most

reliable way to decide whether soft -law is another law that has been proliferated

by had law or not, is to compare its (a) Law making process, (b) Ratification /

acceptance / recognition, (c) Binding to the obligations (d) Accessibilit y to

judiciary, with the same qualities of hard law. In this research, soft -law showed

significant limitations with respect to all of the above parameters verifying that

soft-law is not another ‗law‘.

Soft-law also shows clear deviations from Treaties , too, with respect to above

parameters. For that reason, International Treaties which are so far known as a

part of soft-law is not proven to be a part of the soft -law any longer.

If Treaties are still to be considered as a part of soft -law, it is much more

reasonable to believe that the soft -law, which are onl y International Treaties, to

have been co -developed or proliferated by Traditional (Hard) Law but not the

entire plot of soft -law.

 26

BIBLIOGRAPHY

INTERNATIONAL AGREEMENT & TREATIES

 Vienna Convention on the Law of Treaties Done at Vienna on 23 May 1969

 Hours of Work (Industry) Convention, 1919- ILO

 Kyoto Protocol of 1997

 Chicago Convention

STATUES

 California Corporations Code section 100-192 (GENERAL PROVISIONS AND DEFINITIONS)

Jordan Labor Act No 08, 1996

CASES
 Doe v. Wal-mart, Opinion- No. 08-55706, Dc No. 2:05-cv-07307-AG
 Aerial Incident (1955), Bulgaria v. Israel

LAW JOURNALS

 Nordic Journal of International Law, vol. 65,1996

 European Law Journal, Vol. 11, No. 3, May 2005

 Modern Law Review, No 56, 1993

BOOKS

 The Principles of Existence & Beyond by L. A. Michael; Publisher Lulu.com, 2007

 27

 Explaining soft law‖ Andrew T. Guzman Professor of Law Berkeley Law School &
Timothy L. Meyer Attorney-Adviser U.S. Department of State 2007

 Textbook on international law By Martin Dixon, 6th Edition 0f 2007

 Mary Ann Glendon, A World Made New. Eleanor Roosevelt and the Universal
Declaration of Human Rights, New York, Random House, 2000

 International human rights and humanitarian law: treaties, cases and analysis By
Francisco Forrest Martin, Stephen J. Schnably, 2006

 International Agreements and U.S. Law by By Frederic L. Kirgis-Professor of Law at

Washington and Lee University School of Law,May 1997; The American Society of
International Law

LAW JOURNALS

 Nordic Journal of International Law, vol. 65,1996

 European Law Journal, Vol. 11, No. 3, May 2005

 Modern Law Review, No 56, 1993

MISELLANAEOUS

 Vendor & Supplier‘s Code of Conduct-Macy‘s Inc

 Wal-mart Standards for Suppliers , October-2009,available at

http://walmartstores.com/download/2727.pdf

 Wal-mart‘s Standards for Vendor Partners, Available at http://actrav.itcilo.org/actrav-

english/telearn/global/ilo/code/walmart.htm
 28

LINKS

 http://actrav.itcilo.org/actrav-english/telearn/global/ilo/code/walmart.htm
 www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_appeal_process.ctt/ctpat
_appeal_process.doc
 www.state.gov/s/l/treaty/guidance

 http://www.jci.dk/files/EXTERNET/Aktiviteter/CSR/2005_JCI_CSR_Treaty_-_EN.pdf
 http://www.scribd.com/doc/13331/Kyoto-Protocol

 http://www.unesco.de/1507.html?&L=0
 http://www.asil.org/insigh10.cfm#author
 http://www.itglwf.org/DisplayDocument.aspx?idarticle=15647&langue=2
 29

END NOTES

1
European Law Journal, Vol. 11, No. 3, May 2005, pp. 343–364. © Blackwell Publishing Ltd. 2005, 9600
Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA, available at
http://eucenter.wisc.edu/publications/trubektrubekelj.pdf
2
id
3
Nordic Journal of International Law, vol. 65,1996,p.167, Klabbers, Jan, The Redundancy of Soft Law
4
Snyder, F. (1993a), ―The Effectiveness of European Community Law: Institutions, Processes, Tools
and Techniques‖, Modern Law Review, No.56, pp.19-54, available at
http://www.francis-snyder.com/tl_files/contents/articles/The_Effectiveness_of_European_Community_Law.pdf
5
Prosper Weil, Toward Relative Normativity in International Law, 77 AM. J. INT‘L L. 413, 414-417 n.7 (1983)
6
K. C. Wellens and G. M. Borchardt, ―Soft Law in European Community Law‖ 14 ELRev 267-321. (1989)
7
Article 07(02)a, Vienna Convention on the Law of Treaties Done at Vienna on 23 May 1969
8
California Corporations Code Sections 100-195 ;CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS, available at
http://law.justia.com/california/codes/corp/100-195.html
9
Wal-mart Standards for Suppliers , October-2009,available at http://walmartstores.com/download/2727.pdf
10
The Principles of Existence & Beyond by L. A. Michael; Publisher Lulu.com, 2007, p 150
11
Wal-mart‘s Standards for Vendor Partners, available at
http://actrav.itcilo.org/actrav-english/telearn/global/ilo/code/walmart.htm
12
Customs-Trade Partnership Against Terrorism (C-TPAT) Enforcement and Appeal Process, Available at
www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_appeal_process.ctt/ctpat_appeal_process.doc
13
id
14
“Explaining soft law‖ Andrew T. Guzman Professor of Law Berkeley Law School & Timothy L. Meyer
Attorney-Adviser U.S. Department of State, p07. Available at: http://escholarship.org/uc/item/7796m4sc
15
Guidance on Non-binding documents –by US Departments of States, Sunday, November 15, 2009;
Available at http://www.state.gov/s/l/treaty/guidance/
16
id
17
id
18
Participants to cooperate in information exchange, green store standards drafting and certification;
Available at http://walmartstores.com/FactsNews/NewsRoom/8846.aspx
19
Textbook on international law By Martin Dixon, 6 th Edition 0f 2007,p 06
20
id
21
Doe v. Wal-mart, Opinion- No. 08-55706, Dc No. 2:05-cv-07307-AG; Appeal from the United States District
Court for the Central District of California, Andrew J. Guilford, District Judge, Presiding Argued and Submitted
May 8, 2009—Pasadena, California Filed July 10, 2009
22
‗Explaining Soft Law‘ by Andrew T. Guzman University of California, Berkeley - School of Law and Timothy
Meyer University of California, Berkeley - School of Law available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353444
23
Soft law in European Community law By Linda Senden,2004,p35
 30

24
Mary Ann Glendon, A World Made New. Eleanor Roosevelt and the Universal Declaration of Human Rights,
New York, Random House, 2001, p. 71
25
International human rights and humanitarian law: treaties, cases and analysis By Francisco Forrest Martin,
Stephen J. Schnably, 2006,p.7
26
Fifty Years of the International Court of Justice by Robert Yewdall Jennings, Vaughan Lowe, M.
Fitzmaurice,1996, p-317
27
Vienna Convention on the Law of Treaties. 1969. Done at Vienna on 23 May 1969. Entered into force on 27
January 1980
28
Vienna CSR Treaty of 27th October 2005, Palais Coburg,Vienna; Available at
http://www.jci.dk/files/EXTERNET/Aktiviteter/CSR/2005_JCI_CSR_Treaty_-_EN.pdf
29
Prosper Weil, Toward Relative Normativity in International Law, 77 AM. J. INT‘L L. 413, 414-417 n.7 (1983)
30
Vendor & Supplier‘s Code of Conduct-Macy‘s Inc available at
http://www.macysinc.com/AboutUs/Policies/minc_code_of_conduct.pdf
31
Article 03 of C1,Hours of Work (Industry) Convention, 1919- ILO
32
Id-Article-04
33
Id Article-05
34
Wal-Mart Must Improve Supplier Standards on Hours of Work, says Global Union,
Available at http://www.itglwf.org/DisplayDocument.aspx?idarticle=15647&langue=2
35
International Law and China : Treaty system;Kyoto Protocol to the UN Framework Convention on Climate
Change (UNFCCC) WHAT IS KYOTO PROTOCOL ANNEX A & B ARTICLE 25, 26: RATIFICATION KYOTO THERMOMETER
POST KYOTO. Available at: http://www.scribd.com/doc/13331/Kyoto-Protocol
36
The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics; A contribution to the
workshop "The implementation of bioethical principles in international comparison" (Foreign Office, 15.02.2007)
by Prof. Roberto Andorno; Available at http://www.unesco.de/1507.html?&L=0
37
Glossary of terms relating to Treaty Actions
Available at http://actrav.itcilo.org/actrav-english/telearn/global/ilo/law/glossary.htm
38
International Agreements and U.S. Law by By Frederic L. Kirgis-Professor of Law at Washington and Lee
University School of Law,May 1997; The American Society of International Law; Available at
http://www.asil.org/insigh10.cfm#author
39
Doe v. Wal-mart, Opinion- No. 08-55706, Dc No. 2:05-cv-07307-AG; Appeal from the United States District
Court for the Central District of California, Andrew J. Guilford, District Judge, Presiding Argued and Submitted
May 8, 2009—Pasadena, California Filed July 10, 2009