Effect and Impact

A further distinction sometimes made between soft and hard law and thereby between legal (ir)relevance is that the former is usually said to be of limited effect and impact. Since states are

289 _{The UN Human Rights Committees for example are supposed to fulfil such a function. Boyle, note 217, 904.} 290 _{Other such strategies are boycotts of products, changes of trade policies, and other soft reprisals etc. See for example}

V. Gowlland-Debbas/H. Hadj-Sahraoui/N. Hayashi (eds.), Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process, 2000, 2 et seq.; and P. Moremen, "Costs and Benefits of Adding a Private Right of Action to the WTO", 11 UCLA Journal of International Law & Foreign Affairs, 2006, 189 et seq.

291 _{The Oviedo Convention, note 5, and the UDBHR, note 4, have been cited by international courts as relevant}

documents. See the European Court of Human Rights, Evans v. The United Kingdom, Application No.6339/05 of 7 March 2006, EHRR 43, 2007, 21, citing the UDBHR as a relevant international text at para 42; and European Court of Human Rights, European Court of Human Rights, Vo v. France, Application No.53924/00 of 8 July 2004, EHRR 10, 2005, 71 para 84.

292

In Vo v. France, note 728, the Court referred to the "Oviedo Convention on Human Rights and Biomedicine" and also to its first additional protocol on human cloning and the, at that moment, draft protocol on biomedical research with human beings. Cf. Vo v. France, 71 para 84.

293 _{In Glass v. United Kingdom the Court remarked "that it does not consider the regulatory framework in place in the}

United Kingdom is in any way inconsistent with the standards laid down in the Bioethics (sic) and Human Rights Convention in the area of consent." See the European Court of Human Rights, Glass v. United Kingdom, Application N° 61827/00, para 75, 2004.

free to follow the provisions of a soft law instrument the effect of these instruments is said to be at best unpredictable.294 _{Hard law in contrast is generally perceived to have a significant impact on}

states' behaviour.

Depending on what is involved, treaties and/or customary law in fact often are more effective than soft law instruments.295 _{That is so according to Boyle because they usually indicate a stronger}

commitment to the principles or rules in question and to that extent carry greater weight than a soft law instrument.296 _{But the assumption that treaties are necessarily more authoritative is}

misplaced".297 _{In most cases as Boyle points out "treaties do not generate or codify customary or}

other hard law because of their binding form but because they either influence state practice and provide evidence of opinion juris" for new or emerging rules, or because they are good evidence of what the existing law is already".298 _{In many cases this is no different in the case of non-binding}

and non enforceable soft law instruments.299 _{They are generally the more effective the more they}

reflect an already existing agreement in a certain area of law and the better they are suited to influence states' behaviour.300 _{In the area of bioethics instruments of the hard and the soft law}

seem to be most accepted and effective in those respects where they endorse already established principles of international law. That is for example the case when it comes to the principle of autonomy and its formulation in the rules regarding the area of informed consent.301 _{They are less}

strong when it comes to endorsing new, contested principles, such as protection of the integrity of future generations or the recognition of previously expressed wishes with regard to a medical intervention.302 _{Yet that assessment applies to all standards, not only the soft law standards which}

somewhat defies the original statement that held that only hard law standards are effective. The exact demarcation line between hard and soft law measured by the effect of an instrument becomes even further blurred in those cases in which the potential force of a treaty is heavily qualified by reservations or when there is a need to wait for ratification and entry into force of that treaty and/or when only few states agree to the terms of that treaty.303 _{Soft law's authority in}

contrast is likely to increase if it is able to secure immediate consensus support among states and 294 _{Boyle, note 217, 902.} 295 _Ibid. 296 Chinkin, note 220, 861. 297 _{Boyle, note 217, 903.}

298 _{Ibid. Chinkin, note 220, 859. On the issue of compliance see for example K. Rausiala/A. Slaughter, "International}

Law, International Relations and Compliance", in: W. Carlsnaes/T. Risse/B. Simmons, Handbook of International Relations, 2002, 538 et seq.

299 _{Boyle, note 217, 903.}

300 _{On a discussion of this issue with regard to the Convention on the Elimination of All Forms of}

Discrimination against Women, United Nations, Treaty Series, vol. 1249, 13., 1979, (hereinafter CEDAW) see

H. Charlesworth/C. Chinkin, The Boundaries of International Law. A Feminist Analysis, 2000, 52 et seq.,

noting that the Convention on the Elimination of all Forms of Discrimination Against Women has been a widely reserved and frequently violated treaty despite its Treaty status.

301 _{Oviedo Convention, note 5, Articles 5-7, 15-18; UDBHR, note 4, Articles 5 -8. These provisions were, for example,}

referred to in the case of Glass v. United Kingdom, note 730.

302 _{UDBHR, note 4, Article 2 g. Oviedo Convention, note 5, Article 9.} 303 _{Boyle, note 217, 906.}

other stakeholders so that it becomes immediately valid.304 _{The UDBHR for example was accepted}

by all of UNESCO's member states – even if qualified through declarations of vote-, whereas the Oviedo Convention was not signed or ratified by a number of states, including the United Kingdom and Germany. Such signing patterns might even indicate the lesser force of the latter agreement, whereas, in comparison, UNESCO's soft law declarations show immediate support from all states, which also implies some authority at least.

Finally, hard and soft law can, as indicated above, both be influential because states perceive it to be so. In the absence of a reliable international police to enforce the law, much depends upon a commonly shared belief that states' conduct will definitely be constrained by the commitments states have accepted, either by specific consent or by virtue of their membership in a rule regime such as the United Nations. In the interstate community, the belief that pacta sunt servanda, that treaties are binding, and not just when they are convenient or advantageous is largely responsible to making these agreements work.305 _{The same reasoning can be true in the area of soft law. If}

states perceive to be bound by the terms of the UDBHR then it seems that there will be little difference between the Oviedo Convention and the UDBHR. Both will and are followed because they are perceived to be binding and to entail some sense of obligation not because they come in a certain form.306

Hence quite besides the fact that higher impact and effect do not necessarily attach to hard law only a standard's limited effect and impact does not necessarily mean that the standard in question does not give rise to a legal discourse.