第一节国际经济法概念与渊源

第一节　国际经济法概念与渊源 Section 1　Definition and Sources of International Economic Law

【The Fundamental】

A. Definition of International Economic Law

International economic law, in its wildest meaning, refers to those rules of public international law which directly concern economic exchanges between the subjects of international law. Seen from this angle, international economic law thus covers only a part, albeit an important one, of the discipline of public international law as a whole. This statement will be unwelcome to those who maintain that international economic law is or should be a discipline of its own, separate from public international law. Such a claim may be useful as a plea to increase the number of academic posts in the field of international law, yet, in our opinion, international economic law is so closely embedded in the discipline of public international law that the latter would be crippled by such a separation. Peaceful relations between subjects of international law are, after all, to a very large extent directly concerned with economic exchanges.

If, on the other hand, one were to extend the notion of international economic law even to all those aspects of international law as are indirectly affected by economic activities, this envisaged new discipline would swallow-up the old discipline altogether. Law reflects the interests of the ruling class and international law, in particular, reflects the interests of the most prominent powers of the period concerned. These interests, in turn, are influenced to a very large extent by the aim of obtaining material gains, and thus by economic considerations, even if the actors concerned may not always be aware of the materialistic background to their actions, which, ostensibly, may appear prompted by more idealistic motives.

Be that as it may, the present book will deal only with the rules of public international law directly concerned with economic exchanges. For example, presupposing the audience to be familiar with the general problems of self-determination and of the use of force, we will discuss only the right of economic self-determination and the use of economic force.

However, the effect of this reduction of the scope of the book is offset by the necessity at least to touch upon all aspects of international economic law. We would fail to cope with the realities of present-day international life, if we omitted to deal with phenomena like the existence of multinational enterprises or of contracts concluded by States with nationals of other states. Some authors still may consider that international law should deal only with relations between States and possibly with international organizations, thus giving priority to a preconceived doctrine over present realities. We intend to follow the more modern doctrine which extends the categories of subjects of international law so as to include individuals, and which takes into account the possibility of other sources of international law than those enumerated in Article 38, paragraph 1, of the Statute of the International Court of Justice(ICJ)^[1]or, at least, the necessity of re-interpreting these sources.

Consideration of these two factors may pave the way for the admission of a new body of rules into international economic law, the so-called “ lex mercatoria ”^[2]. Comparative law shows that traders all over the world are beginning to develop uniform conditions for doing business which are more or less cut loose from any national law and enforceable mainly by arbitration. Thus, the “Law Merchant” of the Middle Ages seems to come alive again. By definition, the lex mercatoria will apply merely between merchants. Joint inter-State enterprises may elect to base their relations merely on the lex mercatoria . Non-profit making international associations, likewise desirous of demonstrating their independence from any domestic law, cannot do likewise. G. van Hecke, shows that the basis of common practice of these entities is too small for legal notions common to all of them to develop.

In its content, the lex mercatoria does not aim to regulate relations between states directly and thus it does not fit into the classical notion of international law. On the other hand, by definition the lex mercatoria does not form apart of the national law of any State. Yet domestic courts have rejected the plea that awards based on lex mercatoria were not based on law and should therefore be annulled. If we extend the notion of subjects of international law so far as to include traders as subjects at least of international economic law, the non-national lex mercatoria could be counted among the sources of that law.

The difficulties in practice of separating commercial from State activities are shown by the development of the euro-dollar market. On this market, traders place for a limited period of time amounts of currency (usually United States dollars) in a bank outside of the country where this currency is issued and where it is legal tender. These traders thus create payment facilities additional to those offered by the bank of issue of the several States, earning higher interest than in the United States, as the bank granting the loan is not obliged to keep a corresponding interest-free deposit with the US Federal Reserve Board^[3]. The conditions for lending euro-dollars (“Euro-loans”) have a great influence on the national interest rate. The almost unfettered circulation of vast amounts of money exercises a great influence on the rate of exchange for national currencies.

By thus stretching the notion of international law in order to accommodate the facts of present-day international economic life, we are again confronted with such an unwieldy mass of material that we are once more obliged to make a choice. Many inter-State economic relations are today handled within the framework of the law of the particular international organizations. The law and the activities of these organizations, concerning exclusively or, inter alia, certain fields of economic cooperation, are relatively well covered by monographs. Where this is the case, we will limit ourselves to discussing merely those of their activities which we consider most striking. Knowing quite well how subjective such choice will appear, it has nevertheless to be made or else the present book would grow into a multivolume treatise.

The same reasons of space prevent, a fortiori, any extension of the notion of international economic law to include transnational (economic) law, i.e., to include all rules capable of affecting human relations across national borders, without regard to the national or international origin of such rules, thus including, e.g., national rules of conflict of laws.

B. Sources of International Economic Law

There are essentially two dimensions to a consideration of the sources of international economic law: the actual formal sources of public international law and the complexion of these sources in the context of international economic law.

International Law, considered merely as a body of rules, comprises those sources of law as enumerated in Article 38(1) of the ICJ. These are stated as follows:

“(a) international conventions, whether general or particular, establishing rules recognized by the contesting states;

(b) international custom as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations…”.

However, it needs to be noted at this juncture that international law is not defined universally merely as a body of rules alone. A broader conception of international law is entertained by someone. Whilst it includes the sources mentioned in Article 38, this broader perspective of law comprehends it as a process of decision making; or to put it another way, as a process of communication. Thus, according to Reisman, law involves a prescription, the authority to prescribe, and the power, the capacity and the willingness to render effective the prescription. The emphasis is thus on how decisions are formulated by relevant decision-makers, and arguably on power. In international economic law the relevance of this theory of law in predicting decision-making needs to be explored. However, whatever one’s stand-point as to the nature of international law, the sources of law mentioned in Article 38 of the Statute of the ICJ cannot be avoided.

1. Conventional international economic law.

International economic law derives mainly from agreements arrived at between States, either on a bilateral, regional or multilateral level. This is because treaties suit the exigencies of international economics, being efficient in norm creation, adaptable, and capable of generating detailed rules. International economic treaty practice has often progressed from bilateral to multilateral arrangements. However, the existence of a network of bilateral arrangements can also inhibit progression to a multilateral state because it involves the setting aside of a vast network of bilateral agreements. This is not necessarily an overwhelming obstacle, and mechanisms to deal with such an inhibitor need to be explored.

There are a number of problems that characterize this source of international economic law. Some of the main problems may be described as follows:

First, given the abundance of international agreements, there are serious questions as to the co-ordination of such obligations. A State may have entered into multilateral, regional, and bilateral arrangements involving the same subject matter. There is the need to ensure the avoidance of conflicting obligations undertaken in different treaty arrangements. Thus, questions of conflict have been raised in relation to the World Trade Organization (WTO)^[4]code and the International Monetary Fund (IMF)^[5]; the WTO code and environmental treaties; the WTO code and double taxation agreements; and the IMF and the European Monetary Union^[6]. Further, the particular feature of the m-f-n ^[7]standard in international economic relations calls for an added vigilance by States when negotiating new commitments. For example, there is arguably a query in relation to the m-f-n commitments under the WTO code, and bilaterally agreed double taxation relief. Similarly, increasingly there is tension between arrangements involving regional integration, a particular feature of international economic relations, and multilateral commitments. The capacity of regional blocs to thwart the application of multilateral norms to them is a reality of international economic relations.

Secondly, the process of interpreting international economic agreements can involve particular difficulties. These can stem from the language of the agreement itself (which can sometimes shelter differences of opinions between States); from the institutional processes involved in interpreting an agreement in international economic institutions; from the differences in interpretations of international agreements by national courts; from the lack of agreement as to the particular national law to be applied which is conclusive of the meaning of a term in an international agreement; in the determination of the status of an international interpretation in national law. In particular, the mechanisms for the interpretation and implementation of international agreements often involve internalized mechanisms of interpretation and dispute resolution. These procedures can have a tendency to ensure a pragmatic rather than a strict rule orientated solution. Further, given the multitude of international economic agreements and the various principles enunciated under General International Law, the interpretation process of a particular international economic agreement has to take into account the corpus of International Economic Law as it governs the relations between the parties.

Conventional international economic law is to be found in bilateral, regional and multilateral agreements. Examples of bilateral agreements are Friendship-Commerce-Navigationtreaties (FCNs)^[8], Double Taxation Agreements (DTAs)^[9], Trade Agreements, and Bilateral Investment Treaties (BITs)^[10]. Examples of regional agreements are mostly those which facilitate regional economic integration, e.g. free trade agreements, and agreements for the establishment of customs unions. Chief examples of multilateral agreements comprise those establishing the international economic organizations (e.g. the IMF and the WTO), and those arrived at under their framework.

2. Customary international economic law.

At one level Customary International Economic Law provides the foundations and the background for the institutions of international economic relations. Examples of such norms are those that pertain to freedom of communication: for instance, freedom of the high seas, diplomatic protection and international claims, the principle of pacta sunt servanda, and the standards in relation to the treatment of aliens. In this respect the role of Customary International Law is significant. However, in so far as the body of Customary International Economic Law is concerned, this is mostly marginal. The Customary International Economic Law that does exist has been characterized as having three distinct features, namely negativity, extremity and ambiguity. Thus, generally, the rules proscribe rather than prescribe, tend to be vague, and focus on extreme situations. As examples of customary international economic law mention has particularly been made of the norms relating to expropriation, international economic torts, economic warfare, interference of the international monetary system, and the requirement to consult and collaborate in international monetary matters.

In addition to State practice generally, State treaty practice in the economic field, and the practice of international economic organizations, can give rise to the formation of customary international economic law. This may appear undemocratic in that the rules so formed bindnon-parties to the agreements. Generally, State treaty practice has been driven by the economically powerful States, as indeed have the activities of some international economic organizations.

The very establishment of the existence of customary norms can be fraught with difficulties. This is illustrated by the lack of consensus between developing and developed States as to the nature and impact of certain General Assembly resolutions in the international economic field.

3. General principles of law.

The importance of this source to international economic law was considered at one time even more limited to that of customary international economic law. The International Economic Order may be said now to have evolved somewhat since then. Indeed, as the view was expressed even then, it may be contended it was formulated in somewhat strong terms. As Zamora points out, international economic organizations can and have promoted harmonization and uniformity in domestic law. This domestic development may in turn spawn the birth of General Principles of International Economic Law at the international level. In 1966 when Schwarzenberger delivered his lectures he considered this source to lend itself “too readily to abuse”. Certainly in the interpretation and application of the principles, there can be much latitude.

4. Soft law.

The phenomenon of soft law has been variously described. At its core it refers to “rules”that command respect, but are either not strictly formulated and/or not strictly enforceable. Soft law is not legally binding. It is an expression of a preference. Non-compliance is not considered a violation. However, failure to observe can lead to certain consequences. Further, the formation of soft law in relation to a certain matter takes it out of the domestic jurisdiction of a State.

The notion of “soft” is as much a reference to a rule as to the manner of its enforcement. In so far as the soft law indicia of the rule is concerned, these have been described as having any one or more of the following elements: vagueness, imprecision, recommendatory language, strictly formulated obligations in a binding instrument but undermined by exceptions, and strictly formulated obligations but contained in recommendatory non-binding instruments, for example, General Assembly Resolutions, Guidelines and Codes of Conduct. In addition to these indicia, the requirements for soft law to exist have been stated to comprise of a common intent, and an acceptance of the legitimacy of their promulgation. Compliance with soft lawendows the relevant conduct with legitimacy, although non compliance does not constitute a breach of an obligation.

The soft law indicia relating to the enforcement apparatus includes any or all of the following: waivers from compliance; flexible or haphazard enforcement; compliance mechanisms that de-emphasize the role of law and jurists. However, it seems some measure of policing is necessary.

Although soft law is not strictly law, it has many positive assets. It is in fact both a sophisticated normative framework, as well as a pre-legal or legislative apparatus. It is a method for experimenting and experience building, and a formula for encapsulating compromises. Soft law can shape opinion and practice, and thereby assist in the formation of General International Law. Thus, when soft law codes are incorporated in national legislation, given force in judicial practice, and form a basis of treaty practice, the elements necessary for the development of general international law are triggered into operation. Compliance with it on a voluntary basis on its own however cannot bring directly the emergence of customary international law, since the compliance is not engaged in out of a sense of legal obligation.

There are in international economic relations certain matters that are more effectively served through soft law, either because of the delicacy involved, or because the nature of the object of regulation is such that it does not, or cannot, lend itself to strict legal regulation. Thus, soft law provides a diplomatically more palatable method for regulating State conduct, as well as a method for States to undertake international obligations.

Although the advantages of soft law have been variously rehearsed, some specific mention of the problems associated with this form of “law” needs to be made. First, soft-law can be a deliberate device to minimize and cloak firm law purely for political reasons. The political reasons may not be sound. In such a situation “soft law” is not so much a second best solution but rather a facilitator for the postponement of firm law. Secondly, soft law can involve convoluted jargon in order to avoid legal obligations. In this sense, it does not promote clarity. Thirdly, soft law interpretations can be liberal and thus could result in a higher degree of burden. Fourthly, soft law is static-it does not benefit from authoritative interpretations and clarifications that are consequent upon the processing of firm law through adjudication. Finally, soft law can be a more potent instrument of power-given, for example, the latitude in interpretation, and the flexibility in avoiding legal and constitutional constraints through soft law characterizations. Such considerations provide a safe harbor for non-transparentpower-oriented modus-operandi-both at the national and international level.

(Abridged from Chapter 1 of the International Economic Law written by Seidl-Hohenveldern, Ignaz, and published by Kluwer Law International in 1999. ＆ Chapter 1 of the International Economic Law written by Asif H. Qureshi, and published by Sweet and Maxwell in 1999.)

[The Reflections]

1. What is the relationship between international economic law and public international law?

2. How do you understand the definition of international economic law?

3. What are the sources of international economic law?

4. What problems may conventional international economic law cause as a source of international economic law?

5. What are the advantages and disadvantages of soft law?

【The In-depth】

How Does Soft Law Affect Behavior?

We propose two main theories for the use of soft statutes in particular and soft law in general. First, Congress or another law-making body uses soft law to convey information about future intentions to enact hard law, allowing people to adjust their behavior in advance of binding statutes and in some cases avoiding constitutional requirements that apply to hard law. As we will show, soft law can be useful in this way even when the anticipated hard-law successor never materializes: if people adjust their behavior in anticipation of hard law, hard law enactment might not be necessary.

Second, Congress uses soft law to convey information about its beliefs about the state of the world—both factual and normative beliefs. The Armenian genocide resolution, for example, expressed the factual belief that the Armenian genocide actually occurred—a historical event that is officially denied in Turkey—and the normative beliefs that the Armenian genocide was wrong, rather than (as Turkey sometimes argues in the alternative) an unfortunate but excusable incident to war. Congress’s beliefs about states of the world may influence the beliefs of other people.

In both settings, soft law is a signal that provides information. Like other signals, soft law can convey information more or less accurately and more or less efficiently. Soft law is preferable to hard law when the signal conveys information more reliably or more cheaply than hard law does.

A. Soft Law as a Strategic Instrument

1. How does law conveys information?

At first sight, it may seem that the difference between soft and hard statutes is considerable. Hard statutes have the force of law; people comply with them in order to avoid sanctions. Soft statutes do not, so people should not follow them. However, we can profitably think about both types of statute in a different way. A regular statute is essentially an act of communication that satisfies certain formal requirements set out in the Constitution and embodied in tradition. By voting and satisfying other formalities, Congress communicates to courts and other legal agents that certain behavior will now be subjected to sanctions. The courts and other agents in turn interpret these communications in light of specific disputes or factual settings, and issue orders to another set of agents who have coercive powers—police officers, wardens, soldiers, marshals. Thereupon these agents engage in the designated actions. Anticipating this chain of events, most people engage in the desired behavior rather than risk sanctions.

The agents who receive this signal from Congress do not in any sense act automatically. Indeed, agents often refuse to comply with Congress’s order. Most commonly, judges refuse to order agents to comply with a regular statute that violates the Constitution. Executive officials, in turn, will refuse to enforce the statute if judges forbid them to. Less commonly, the President and executive agencies will refuse to follow or enforce a statute if they believe that it violates the Constitution. Anticipating these responses, many ordinary people might refuse to comply with the statute.

A soft statute also reveals legislative information. The relevant audience no longer has a legal obligation to follow Congress’s order, but it may nonetheless change its behavior. When parties change their behavior in response to soft law, it cannot be because they fear immediate formal legal sanctions. Nonetheless, because soft law reveals information about legislative beliefs, there are settings in which rational observers will react as if it were hard law.

2. Theories of communication.

To explain the influence of soft statutes, we need a theory of how legislative communication can influence behavior. Fortunately, there are many such theories, and wedraw on them below.

a. Signaling theories

One theory is that Congress’s statement provides the addressee with information about Congress’s goals or interests. If Congress says that it opposes the Iraq war, the public learns that Congress disapproves of the Iraq war, or at least that it is more likely that Congress disapproves of the war than would be the case if Congress did not make this statement. The public might also learn more generally that Congress does not approve of preventive or humanitarian wars. This information is useful, and it might cause some members of the public to change their behavior. For example, investors might be more reluctant to invest in firms that supply the military, and people who seek military training but not combat experience might become more willing to join the army.

But why is Congress’s statement credible? Maybe Congress does not really mean that it disapproves of the Iraq war, but is trying to obtain some short-term political advantage by pandering to temporary passions. Perhaps the legislature is exploiting a transient public mood in the hope of pressuring the President to yield in some other political disputes between the two branches.

As a general matter, a statement is credible when it is accompanied by a costly action—in particular, an action that is more costly for a dishonest speaker to engage in. Passing resolutions is costly: it takes time that could be used for other things—passing legislation, engaging in constituent service, meeting supporters, enjoying leisure. These other activities benefit members of Congress either directly or by improving their chances for reelection. If Congress spends resources to enact a resolution disapproving the Iraq War, observers will rationally infer that Congress cares more about this issue than it cares about other issues for which it does not enact resolutions. In turn, people who are taking actions with an eye toward how Congress might, in the future, regulate the Iraq intervention or other military interventions would do well to take note of the resolution.

There is another signaling mechanism that can explain why soft statutes are credible. Suppose that Congress can benefit from resolutions because they let the President know Congress’s view on a particular issue—say, budgetary priorities. If the President knows Congress’s view, he can take account of it when formulating a budget prior to its submission to Congress. By doing so, the President can avoid a subsequent budgetary impasse that hurts both him and Congress. Moreover, if the President takes the soft statute seriously, then Congress thereby reduces the first-mover advantage (however slight) that otherwise accrues from thePresident’s ability to propose an initial budget.

Congress and the President engage in repeated play extending indefinitely into the future. The President may well adopt the strategy of taking seriously Congress’s resolutions as indications of Congress’s views only as long as Congress in fact acts consistently with the resolutions when the budget is submitted. If Congress can commit its members to act consistently with resolutions, then it benefits from having a reputation for complying with its resolutions. The resolutions are credible; others, such as the President, the courts, and the public, will believe them.

b. Cheap talk theories

Communication can be credible even when it is not costly, as long as certain other conditions are satisfied. One such setting exists when parties face a coordination game, where they both benefit by coordinating on a particular move. Suppose, for example, that congressional leaders believe that Congress should strongly express a commitment to human rights. The leaders believe that a concurrent resolution would receive more publicity than a single-house resolution, and further that, given the legislature’s opportunity costs, only one concurrent resolution on this topic is possible. Members of Congress might be equally split as to whether to condemn the Armenian genocide or the genocide in Darfur, but all agree or nearly all agree that condemning one genocide is better than condemning none, and condemning both genocides is not politically possible given time constraints and fears about diluting the message.

If one house goes first, then it can simply choose to condemn whichever genocide that its members feel most strongly about. The other house, faced with the choice between its first or second best outcome (passing an identical resolution), or muddying the message (passing a different resolution), which is its worst outcome, will join in the concurrent resolution. The first house’s resolution is a credible statement of its members’ political preferences because those members anticipate the second house’s reaction, and cannot benefit by that reaction if it misrepresents its preferences.

In a related model, a political agent must express its view about some issue, where there are two separate audiences with conflicting political preferences. Suppose, for example, that when Congress issues a condemnation of the Armenian genocide, the relevant audience consists of Armenians and Armenian-Americans, on the one hand, and Turkey and its American supporters, on the other hand. Assume that both groups have political power and can punish members of Congress for adopting a resolution that they disapprove. Here, whenCongress condemns the Armenian genocide, it incurs a cost. This cost comes from political pressure or loss of political opportunities from Turkey and its supporters (including the U.S. military and businesses). Congress’s willingness to incur this cost indicates that its support for Armenia is credible. Indeed, analytically this is very similar to the signaling game: the cost is not intrinsic but nonetheless has the same effect of producing credibility.

c. Implications

As long as Congress can credibly reveal its intentions with congressional resolutions, it is likely that people’s behavior can be affected by these resolutions as well. If resolutions reveal Congress’s policy views and hence the path of future legislation, then potentially affected parties will adjust their behavior in light of their updated beliefs about the legal environment in the future. Indeed, we have found a few examples where soft statutes anticipate, and appear to cause, the adoption of voluntary codes of conduct. The Recording Industry Association of America’s adoption of advertising guidelines for notice of explicit lyrics after a congressional resolution urged a uniform labeling and disclosure system. Colleges and universities adopted voluntary guidelines on illegal file-sharing on university computer networks after congressional resolutions urged such action. The decision of several major food companies to restrict advertising for “junk food” during children’s television programs follows this pattern too. This way of affecting behavior need not take the form of resolutions. Simple threats or promises from congressional leaders or oversight committees can also do the trick, as others have noted. But soft statutes, because they reflect the views of the entire body (a chamber or Congress as a whole), should be a particularly useful vehicle for accomplishing this purpose.

B. Soft Law as an Epistemic Instrument

In international law, much discussion has revolved around the possibility that soft law reflects normative commitments that governments will not initially treat as law but that nonetheless eventually influence them or their successors. The Universal Declaration of Human Rights is the preeminent example. Formally, the Declaration had no legal effect; it was merely a declaration to which states agreed on condition that it creates no legal obligations. Today, it has a great deal of normative authority. States criticize others for failing to live up to the Declaration’s aspirations, and they go to the trouble of defending themselves when subject to like criticism. How did this happen?

An initial puzzle concerns the moral status of the Declaration itself. If the Declaration merely embodied universal or widely held moral views, then it is not clear what the Declaration adds to this prior moral consensus. Writing down our moral views on a piece ofpaper should not make them any stronger. On the other hand, if the Declaration deviates from moral views, then presumably the Declaration would not have much moral force.

To understand how norms might spread, suppose that agents have some but not full information about the state of the world; that their beliefs are independent, that is, not derived from the same sources or sources that are in some way correlated; and that they sincerely express their views through a voting process. As the size of the group increases, the probability that the majority will vote correctly increases at an exponential rate. So even if each individual has only a low probability of being correct, a relatively small group will jointly reveal the correct state of the world with a probability that rapidly approaches one as the group size increases. This phenomenon is known as the Condorcet Jury Theorem.

In the real world, people who vote in groups do not always satisfy these conditions. They do not always vote sincerely, and they sometimes have zero rather than a little information about the issue in question. If individual members of a group pick the wrong answer more often than the right answer, then the aggregate judgment of the group will not tend towards accuracy. Nonetheless, the larger point is that when an institution (or person) expresses its views about a topic, it reveals information that others can benefit from, and the informational benefits can sometimes be dramatic.

Let us distinguish two types of facts: descriptive and normative. A descriptive fact is that the Armenian genocide occurred. A moral fact is that the Armenian genocide was wrong. No one doubts that descriptive facts exist; the case for moral facts is more complicated, but it is at least plausible that certain moral judgments are facts or sufficiently fact-like that the Condorcet Jury Theorem can be applied to them.

In the case of congressional resolutions, the Condorcet Jury Theorem operates at two levels. The congressional resolution aggregates the votes of members, and the congressional resolution can be treated as one vote in a larger, more informal national or global debate about a particular moral or descriptive fact. If one thinks that the members of Congress voted sincerely and had independent (or roughly independent) sources of information, then one should be more inclined to believe that the Armenian genocide occurred (and was wrong, assuming that moral facts exist) as a result of the resolution. And if multiple legislatures, governments, or other institutions around the world issue similar resolutions or statements, and one believes that they vote sincerely and on the basis of independent sources of information, then one’s inclination to believe that the genocide occurred should be strengthened. A similar point can be made about resolutions that praise military withdrawals and peace agreements,condemn human rights violations, military threats, and internal meddling, urge reform in foreign countries, and identify domestic problems that need attention.

There is reason to be skeptical about whether congressional resolutions actually do work in a Condorcetian manner. The opposite phenomenon—herding or cascading, where people imitate others for reputational or informational purposes—is just as plausible. Voting might simply reflect public sentiment or a desire to go along with colleagues for other reasons. Still, if the Condorcetian theory applies with respect to either descriptive facts or moral facts, then the soft statute can be informative and useful.

(Abridged from Chapter 2 of the Soft Law written by Gersen, Jacob E. and Posner, Eric A., University of Chicago, USA and published in March, 2008)

[The Terms]

1. Armenian genocide resolution: 亚美尼亚种族灭绝决议

2. Signaling theories: 信号理论

3. First-mover advantage: 率先行动者优势

4. Cheap talk theories: 廉价交谈理论

5. Recording Industry Association: 美国记录工业协会

6. Universal Declaration of Human Rights: 世界人权宣言

7. Condorcet Jury Theorem: 康多瑟陪审团定理

[The Discussions]

1. The differences between soft and hard law.

2. The influence of soft law.

3. The advantages and disadvantages of soft law.

【The Further Sources】

Arrington, Alexandra R., Law Without Links: Re-Locating International Economic Law within the Sphere of Law and Society (January 20, 2009).

Subedi, Professor Surya P., International Economic Law , University of London Press, 2005.

Meyer, Timothy and Guzman, Andrew T., Customary International Law in the 21st Century (May 8, 2007).