The Level of Enforceability

A second distinction between soft and hard law which is also usually taken as an indicator of soft and hard law's legal (ir)relevance, is that only hard law is legally enforceable. That is, soft law instruments generally do not stipulate for any legal way to enforce their provisions. Hard law in contrast is legally enforceable, for example, in courts or equivalents. If a hard law provision is breached an injured State may even take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations, i.e. may itself breach international law.281

Convention is here far from being precisely worded and from specifying the exact obligations undertaken or rights granted. Council of Europe, Parliamentary Assembly, Projet de convention de bioethique, doc 7124, 1994, at 25.

279 _{Hillgenberg, note 216, 504. Article 1 paragraph 2 of the Oviedo Convention, note 5, stipulates that each}

Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention. This paragraph has been added in the last preparatory stage of the Convention in an effort to enhance the conformity between the Convention and the internal law of the Parties. According to the Explanatory Report on the Oviedo Convention it is largely up to the Parties to determine how they endeavour to comply with this obligation: "With regard to each provision, the means will have to be determined by each Party in accordance with its constitutional law and taking into account the provision in question." Explanatory Report Council of Europe European Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine DIR/JUR, 1997, 54.

280

Chinkin, note 220, 851, arguing that the Vienna Convention, note 218, does not require treaties between States to create any identifiable rights and obligations to be subject to its regime. "It is sufficient that the agreement is in writing and subject to international law. However, if a treaty is to be regarded as "hard", it must be precisely worded and specify the exact obligations undertaken or the rights granted. Where a treaty provides only for the gradual acquiring of standards or for general goals and programmed action it is itself soft for what is apparently a treaty may be devoid of legal content".

Again, formally this characteristic holds true with regard to declarations and conventions, including those in the area of bioethics. The UDBHR, for example, if breached, stipulates for no legal consequence. No state could take another state to court in order to have the provisions of the UDBHR enforced on the 'perpetrating' state. Similarly, no state could legally demand the

imposition of sanctions on another state in order to press for the implementation of the Declaration's provisions. The Oviedo Convention, in contrast, stipulates for a variety of enforcement methods, including in Article 25 the application of sanctions in the event of

infringement of the provisions contained in the Convention. Other hard law standards in the area, such as for example WTO agreements, come with mandatory dispute resolution processes. 282

Practically speaking, however the difference at least between the Oviedo and the UNESCO standards, should not be overstated and again is of limited informative value with regard to the question of whether or not it is justified to speak of a legal discourse when that discourse builds (also) on legally non enforceable standards. First, in contrast to the theory behind it, practically, the legal enforcement of provisions seems to be only of limited relevance. In cases like the Oviedo Convention, for example, the likelihood that a treaty will give rise to court proceedings or sanctions is so low that it might as well be said that enforcement structures are de facto non-existent. One reason for that is certainly the aforementioned weak and cautious wording of the Oviedo

Convention which then makes it difficult to breach its provisions at all.283 _{In fact, in many ways the}

Convention itself seems so softly and vaguely worded that what is apparently a treaty in fact is devoid of legal content.284 _{Moreover, even with regard to those provisions of the Oviedo}

Convention which might be specific enough, such as in the area of informed consent to trigger legal action in case of infringement285 _{it seems unlikely that any state would refer to sanctions to enforce}

them. States' tendency not to resort to sanctions if their aim can also be achieved via other, usually softer means stems from the fact that the application of sanctions often hurts the state imposing the sanction as much as the state against which they are directed if they lead to a deterioration of relations between the states.286 _{Another reason is that sanctions are hardly ever effective.}287 _Thus,

even if states in theory can rely on sanctions and other means to enforce a treaty the supposed efficacy of sanctions has been frequently challenged and their use, at least at the multilateral level, has remained fairly limited.288

States instead often have replaced conventional dispute mechanisms by the establishment of mechanisms that monitor compliance with international legal standards on a permanent basis, and

282 _{See discussion below in Chapter IV, 3.2..}

283 _{See discussion in the preceeding section.}

284

Ibid. On the argument generally see also Chinkin, note 220, 851.

285 _{Oviedo Convention, note 5, Articles 5-7, 15-18.} 286 _{Malanczuk, note 204, 4}

287 _{Ibid, 5.} 288

L. Wolcott, "Ongoing at the Carter Center: Seeking Effective Sanctions", 11 Emory International Law Review, 1997, 351, 357; P. Kozal, "Is the Continued Use of Sanctions as Implemented Against Iraq a Violation of International Human Rights?", 28 Denver Journal International Law & Policy, 2000, 383, 389.

thus prevent or deter as much as possible deviation from standards.289 _{The establishment of such}

formal and informal mechanism can, however, also be observed in the area of soft law. States for example rely on a variety of non-legal compliance inducing strategies at their disposal including most prominently naming and shaming strategies,290 _{strategies which are also available with}

regard to soft law. Finally, it should be noted that courts have referred to both soft and hard law instruments in the area of bioethics. Like the Oviedo Convention, the UDBHR was thereby cited as a relevant standard with no apparent distinction as to its legal standing.291 _{Moreover, the European}

Court of Human Rights has already referred to the Oviedo Convention as a standard in cases where Member States of the Council of Europe were involved that had not ratified, in this case France292

or not even sign it, in this case the United Kingdom.293 _{The fact that the courts referred to both}

types of standards in an indiscriminate way and even considered standards applicable to states that had not ratified or signed them implies that the court does not think it necessary to always draw a distinction between formally legally binding and enforceable and formally legally not binding and not enforceable standards. In both instances the standards in question were used as legal

instruments from which states should derive normative guidance.

To conclude, legal enforceability certainly is not all that is to be said about law and is not

necessarily indicative of legal relevance. Moreover, practically the difference between what is and what is not legally enforceable is not always easy to discern. Most importantly, as shown by the courts lack of legal enforceability certainly does not by itself mean that soft law standards in the area of bioethics cannot give rise to a legal discourse.