Article

Non-binding instruments in international humanitarian law : questions of efficacy and legitimacy

Emily Crawford

• Soochow law journal, Vol. 13, no. 2, 2016, p. 153-184

English

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In the past 30 years in the filed of international humanitarian law (IHL), there have been a considerable number of non-binding instruments created, designed as either "best practice" guidelines, or (re)statements of applicable law. These instruments are not treaties, but they often put themselves forward as authoritative statements of what the law is and, in some instances, what the law should be. Soft law instruments have the ability to be dynamic, prompt, and responsive measures to address pressing issues in arned conflict situations. However, it is possible to see problems with the processes that bring them to fruition. Concerns about legitimacy are especially pertinent. In addition to the concerns about the legitimacy of how these instruments come about, it is useful also to examine whether these instruments are effective. How have they been received by States and other participants in armed conflicts? Do they actually shape or influence practice in conflicts? Finally, some attention should be paid to whether the concerns about soft law are actually misplaced, and whether instruments or provisions that suggest best practice or that simply restate existing accepted law are actually problematic.

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