This chapter shows how involuntary sterilisation and castration have become problematised in international law. The chapter discusses the rise of international law and human rights in the post-war context. Despite being regarded as international crimes on meeting certain criteria since the Nuremberg trials, the interventions are rarely prosecuted in practice. Efforts to mainstream involuntary sterilisation as human rights violations have been more successful. This development began in the 1990s and has since gone from soft law to binding legal obligations. The chapter shows that uncertainty prevails regarding the legal and remedial conceptualisation of involuntary sterilisation and castration in international human rights law due to inconsistent and incidental treatment of such cases. Ultimately, the argument is made that international law provides a socio-legal master frame for national legal claims. In the case of involuntary sterilisation and castration, however, this master frame is not sharply defined, effectively impeding investigation and problematisation of the practices in national contexts.

The Basel Committee on Banking Supervision (BCBS) is the most important international standard setting body in the field of financial regulation. Its remit concerns banking regulation, and particularly prudential requirements of internationally active banks. The fundamental question addressed by this chapter is what explains the resilience of the BCBS and its standards, particularly in the aftermath of the 2007-2008 global financial crisis. The chapter is organised as follows: first, there is an introduction to the BCBS and the standards its members develop. Second, the failures of the Basel regime leading to the financial crisis are highlighted, as well as some possible explanations thereof. Thereafter follows a discussion about the reasons why the fundamental features of the regime are still in place even after its evident inadequacies and why the reforms adopted in the wake of the crisis are a way to safeguard the resilience of such features.

This chapter explores the legality of the IMF’s shift in mandate, and considers the overarching question of whether the institution was legally entitled to expand its mandate over time through de facto legal doctrines rather than express or implied consent of the members. The analysis begins with a consideration of the legal basis of the Fund’s initiative by examining the international legal theory on the legal personality of international organisations. That is, whether the mandate of an international organization is strictly dependant on the wording of its constitutive instrument(s), or whether the mandate can evolve so as to accommodate new de facto attributions and competences. The Fund’s mandate shift is then tested by taking into account the power of soft law. A key aspect in the legal literature is whether the constituent doctrine of ‘separate will’ or ‘volonté distincte’, which allows an organisation to act independently – that is without the express or implied consent of members – would apply to the mandate expansion as the move ensured the Fund maintained relevancy in an ever-changing world. Finally, the chapter concludes that the Fund’s mandate expansion was in line with the standards of international law applicable to international organisations.

Non-legally binding instruments do not constitute treaties but they are widely used by states and international organisations as a form of political commitment. They have various titles, the most common of which is memorandum of understanding, although some states use this title also for treaties with a certain subject matter. In the multilateral context, non-binding instruments are often used for plans of action, guidelines and other forms of standard setting. To ensure that an instrument is non-legally binding, care must be taken in the drafting to evidence that intention, including use of the right terminology. An examination of state practice reveals broadly similar principles. Why do states and international organisations use non-legally binding instruments in preference to treaties? Reasons include confidentiality, lack of formality, and ease of amendment and termination. But there are risks, including possible lack of respect for commitments and lack of care in drafting. Non-legally binding instruments, both bilateral and multilateral instruments, may in some contexts be regarded as a form of soft law. They may also exceptionally give rise to estoppel. Non-legally binding instruments may also be evidence of a state’s decision or policy in the context of judicial review by domestic courts.

The advent and development of soft law in international arbitration is no new phenomenon. More than thirty years ago, a proposition was advanced that soft law has become nearly indispensable in international arbitral practice (Reisma nn, 1988). Today, while there are many who fully support this proposition, a growing number of actors in international arbitration generally take a critical stance regarding the non-consensual use of soft law in arbitral proceedings. The aim of this chapter is to analyse these two poles in order to examine the current state of soft law in international arbitration. This chapter first discusses the theoretical concepts of soft law in international arbitration. Then, the application of soft law in international arbitration is explored, by taking into account its relevance to commercial and investment arbitration. Finally, prominent soft law instruments pertaining to procedure, ethics and the merits of an arbitration case will be assessed briefly both in terms of reasons for their development and reception in practice. The chapter concludes with some reflections on the role of soft law in today’s arbitral practice and possible future developments.

Chapter 5 synthesises our analysis and identifies targeted normative reforms. ASEAN leaders will eventually need to defy political demands for protectionism to establish a stable foundation for economic growth as they harness the development potential within the ASEAN region. The inauguration of the Regional Comprehensive Economic Partnership Agreement (RCEP) provides a golden opportunity for ASEAN members to deepen trade and investment liberalization among themselves to maximize the RCEP’s true potential: the synthesis of extra-ASEAN and intra-ASEAN economic flows. What seems essential in soliciting cooperation from ASEAN members is to gradually expand shared grounds and consolidate the ASEAN identity pronounced in the ASEAN Charter. By embracing a constructivist logic, ASEAN members need a new paradigm of integration based on trust and confidence in their common market project. Touting human agency and soft law, ASEAN leaders can rebalance domestic political economy and collective economic interests, thereby synthesizing global and regional (ASEAN) value chains and linking a single ASEAN market to the global market.

In this chapter, Fruzsina Molnár-Gábor and Johanne Giesecke consider specific aspects of how the application of AI-based systems in medical contexts may be guided under international standards. They sketch the relevant international frameworks for the governance of medical AI. Among the frameworks that exist, the World Medical Association’s activity appears particularly promising as a guide for standardisation processes. The organisation has already unified the application of medical expertise to a certain extent worldwide, and its guidance is anchored in the rules of various legal systems. It might provide the basis for a certain level of conformity of acceptance and implementation of new guidelines within national rules and regulations, such as those on new technology applications within the AI field. In order to develop a draft declaration, the authors then sketch out the potential applications of AI and its effects on the doctor–patient relationship in terms of information, consent, diagnosis, treatment, aftercare, and education. Finally, they spell out an assessment of how further activities of the WMA in this field might affect national rules, using the example of Germany.

In this chapter, the ethics and international law scholar Silja Voeneky and the mathematician Thorsten Schmidt propose a new adaptive regulation scheme for AI-driven products and services. To this end, the authors examine different regulatory regimes, including the European Medical Devices Regulation (MDR), and the proposed AI Act by the European Commission and analyse the advantages and drawbacks. They conclude that regulatory approaches in general and with regard to AI driven high risk products and services have structural and specific deficits. Hence, a new regulatory approach is suggested by the authors, which avoids these shortcomings. At its core, the proposed adaptive regulation requires that private actors, as companies developing and selling high risk AI driven products and services, pay a proportionate amount of money as a financial guarantee into a fund before the product or service enters the market. The authors lay down what amount of regulatory capital can be seen as proportionate and the accompanying rules and norms to implement adaptive regulation.

In this chapter, Thomas Burri, an international lawyer, examines how general ethical norms on AI diffuse into domestic law directly, without engaging international law. The chapter discusses various ethical AI frameworks and shows how they influenced the European Union Commission’s proposal for an AI Act. It reveals the origins of the EU proposal and explains the substance of the future EU AI regulation. The chapter concludes that, overall, international law has played a marginal role in this process; it was largely sidelined.

The law scholars Weixing Shen and Yun Liu focus on China’s efforts in the field of AI regulation and spell out recent legislative actions. While there is no unified AI law today in China, many provisions from Chinese data protection law are in part applicable to AI systems. The authors particularly analyse the rights and obligations from the Chinese Data Security Law, the Chinese Civil Code, the E-Commerce Law, and the Personal Information Protection Law and explain the relevance of these regulations with regard to responsible AI and algorithm governance. The authors introduce as well the Draft Regulation in Internet Information Service Based on Algorithm Recommendation Technology. This adopts many AI specific principles such as transparency, fairness, and reasonableness. Regarding the widely discussed field of facial recognition by AI systems, they introduce a Draft Regulation, and a judicial Opinion by the Supreme People’s Court of China. Finally, Weixing Shen and Yun Liu refer to the AI Act proposed by the European Commission, which could also inspire future Chinese regulatory approaches.

This chapter, the volume’s Introduction, formulates central analytical and practical challenges posed by the effort to render the solidarity principle in concrete regulations, policies and legal outcomes, that is in “inscriptions of solidarity” in the terminology adopted here. Actors and institutions have often relied on the solidarity principle in their response to new challenges but that reliance poses as many new questions as it answers. Some of these questions are related to the fact that invocations of the solidarity principle have thus far largely failed to effectively reverse the tendency toward growing inequality. The chapter identifies not only positive elements of solidarity’s “inscriptions” but also challenges, especially those that involve enforceability and that partly reflect the frequent use of soft-law instruments in renderings of the solidarity principle. The chapter also explores the interactions – in application – between the principles of solidarity and equality, underscoring the usefulness of efforts to build synergies between those two legal framings or “labels” for initiatives designed to protect vulnerable sectors of the population, constructing an inclusive solidarity. In practice, actors have faced choices about how to frame policies that address crucial social needs.

This chapter looks at the International Law Commission’s changed approach in codifying and developing international law. Increasingly, the ILC’s work has not aimed at codifying international treaties, as in the first fifty years of its activity (1949–2000), but rather at drafting guidelines, or articles which would not end up discussed in a conference to become binding treaties. This method of codification is based on the customary nature of the guidelines and articles, and relies on the extended network of judges and arbitrators that will potentially make use of them. It is mainly through the domestic and international judiciary that these written guidelines and articles become legally relevant and eventually crystallise into binding rules. The chapter reflects on the importance of the historical context of the proliferation of courts and tribunals in promoting this different endeavour, and, in conclusion, points out the central role of the practice underlying the rules, rather than the Vienna Convention rules on the interpretation of treaties, as the essential point of reference in interpreting them.

This chapter addresses some foundational questions relating to corporate human rights accountability and clarifies the context in which different accountability regimes are embedded, paying particular attention to the rise of polycentric transnational governance in what has been called a post-Westphalian world order. The chapter distinguishes between domestic and international, private and public, and hard and soft law approaches to holding companies accountable. Particular attention is given to soft accountability mechanisms. The chapter looks at certification and labeling systems for conscious consumers, the rise of socially responsible investment or so-called ESG investment, and the effectiveness of NGO “naming and shaming” campaigns.