Non-State Actors, Soft Law and Protective Regimes: From the Margins

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Contrastingly, soft law instruments are neither governed by the Vienna Convention on the Law of Treaties nor covered in the narrow definition of sources of international law defined in Article 38 ICJ Statute. Therefore, they allow to move beyond the narrow definition of subjects of international law. This makes it easier to include non-state actors as negotiating parties of international norm creation and enables international law-makers to directly address non-state actors.

Its development and the process of negotiation turned out to be highly inclusive towards non-state actors: non-governmental organisations played a crucial role during its the development. Furthermore, the infant formula industry also participated in the negotiations. The latter invoked the expectation that the participation of the industry in the development of the Code would increase its willingness to comply with the provisions set out in the instrument.

The inclusion of non-state actors to the development of the Code of Marketing turned out to be advantageous, since it led to the adoption of detailed and significant provisions. Furthermore, the Code of Marketing of Breast-Milk Substitutes directly addresses multinational companies. The latter point is crucial, since this specific context demanded for the direct accountability of the infant formula industry in order to be effective. This section critically discusses the insights gained in the sections above. It thereby also sheds light on the general weaknesses of legally non-binding instruments.

One famous and frequently expressed criticism on soft law is that its voluntary character makes it redundant: since it is not legally binding, non-compliance cannot be sanctioned and the regime of state responsibility does not apply.

Non-State Actors, Soft Law and Protective Regimes : From the Margins.

And, to phrase it in a rhetorical question: what weight does a soft law instrument have if it cannot be enforced and if non-compliance does not have any consequences? With regard to the Code of Marketing, this line of criticism is weakened by the fact that the instrument exerted considerable influence. The involvement of the infant formula industry in the process of Code negotiation and the possibility to address them directly has turned out to be beneficial in terms of effectiveness and compliance. Furthermore, many provisions of the Code of Marketing were implemented to national legislation.

It can also be contended that the inclusion of non-state actors through the use of soft law instruments is fostering power asymmetries. Facilitating the participation of different non-state entities at the international plane might imply the empowerment of actors that have the resources to participate in an international law-making process while neglecting all other actors. For example, multinational enterprises have more financial resources to participate in a negotiation process and to pursue constant lobbying than small and destitute non-governmental organisations.

Customary international law from the practice of non-state actors

Again, this criticism seems not to hold true in the context of the Code of Marketing: as shown above, civil society organisations and multinational enterprises were equally involved in the process of Code negotiation. Small non-governmental organisations united to the International Baby Food Action Network that became a prominent voice in the promotion of breast-feeding.

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