Law and soft law in the world of legal pluralism Beryl ter Haar 14 December 2016

Law and soft law in the world of legal pluralism Global space (or law and soft law) Hybridity An example: the ILO core labour standards

1. World of legal pluralism Globalisation Goods / products are no longer produced in one country or region of the world only E.g. clothes; smart phones; etc. Services are provided from everywhere E.g. an internet helpdesk is based in Singapore; FB photos are checked in the Philipines; rontgen photo’s are analysed in India; etc. Persons are moving from one country to another, permanently or temporarily Consequence: Various laws are applicable on one product/service/ or person Similar issues are governed by various legal regimes => Legal pluralism

1. World of legal pluralism Challenges for lawyers – to name some … Which legal regime should apply? How and by which legal regime can a situation be regulated? How do the different legal regimes interact? And what does that mean in practice? What to do when there is a conflict? Who decides? 2 Theories to help: Global space Hybridity

1. World of legal pluralism Global space => 4 features diverse and complex challenging law which has to bring uniformity between social systems and legal orders plural in terms of legal orders (horizontal and vertical) and in terms of participating actors (public and private) relatively weak and limited in means when it comes to international systems of coercion a knowledge deficit that is the result of a high degree of uncertainty concerning the optimal solutions to problems

1. World of legal pluralism Global Space => 2 roles conventional rule-setting role of (international) law that stresses the enforcement and compliance with fixed rules Cf hard law a problem-solving role that emphasises the operation of multi-level networks, the role of experimentation and deliberation in order to internalise open-ended standards. Cf soft law

2. Law and soft law Law One lawmaker Sets the norm Commands (has to; must; etc.) Controls through (third party) judiciaries Is linear Soft Law Multiple stakeholders Acknowledges the existence of a problem Consends to solve the problem Includes governance mechanisms to fosters deliberation, experimentation and participation Is itterative

3. Hybridity Hybridity = The acknowledgement that various regulatory regimes exist in the same dimension (society; legal order; etc.) About the interaction of the various regulatory regimes in the same dimension, which can be rivalry, complementary, or transformative

3. Hybridity Rivalry = when the newer forms of governance are designed to perform the same tasks as legal regulation and are thought to do it better, or otherwise involve a necessary choice between systems Complementary = when each system is operating at the same time and contributing to a common objective but they have not merged Transformative = configurations in which governance and traditional law are not only complementary; they are integrated into a single system and the functioning of each element is necessary for the successful operation of the other

4. An example: ILO Core Labour Standards ILO’s core labour standards are: - Ban on slavery Ban on child labour Equal treatment Right of association and collective bargaining Regulatory dimension - International (ILO, UN, OECD) Regional (e.g. Council of Europe) National (legislation; guidelines) Transnational public – e.g. ILO Better work programmes Private – e.g. CSR codes of conduct; IFAs

4. An example: ILO Core Labour Standards SupervI Ruggie Framework NCPs UN GC OECD Guidelines ILO Conventions & Recommendations Tripartite Declaration 1998 Declaration MULTI Follow-up CSR Codes NGOs IFAs

Thank you for your attention! Questions? b.p.ter.haar@law.leidenuniv.nl