Soft on the Inside, Hard on the Outside: An Analysis of the Legal Nature of New Forms of International Labour Law

Abstract

With the internationalization of companies, labour issues, such as working conditions, have moved beyond the confines of national law and become subject to the transnational legal ambit. To regulate these issues, an increasing variety of instruments is used. Two fairly new instruments, in this respect, are unilateral codes of conduct that are concluded in the context of corporate social responsibility, and international framework agreements concluded by multinationals and global union federations. Both instruments are labelled as soft law since they are legally non-binding but are intended to generate normative effect. To gain a better understanding of the legal functioning of these instruments, this paper introduces an analytical framework that builds on the work in particular of Gamble, Abbott et al., Raustiala and d'Aspremont. The framework is comprised by three features of law: lawfulness, substance, and the structure to ensure compliance, with each feature divided into several elements. The analysis of the two instruments in this perspective based on a narrow and rather strict analysis within the framework suggests that the two instruments are very soft. However, based on a more reflective analysis, we find that both instruments are much harder on the outside than the (formal) inside suggests.