5.

A Reassessment of Current Sources of International Law: The Question of "Jus cogens" and "Soft law" In the twentieth century, two trends have emerged in international law relating to a recasting of the traditional understanding about its sources and role of a gradation of binding force for the states, the legal rules produced by them or u sed them. On one hand, recognizing there is a hard core and relatively inflexibl e legal rules, which, like the immutable clauses of the Constitutions of States, affect the legitimacy and validity of all other standards developed by them. Th is is the assertion that there is in international law norms that constitute a " jus cogens", which overrides the will of the states, and can not be modified by devices from either the international treaties and conventions, or in customary international law , that is, still, being defined as general principles of law, for a competent analysis of the theme of "jus cogens" a Brazilian perspective, W itness Prof. John Grandino Wheels, his article "jus cogens", published in the Jo urnal of the Faculty of Law, USP, vol. 69, No 2, 1974, p. 125-36) On the other h and, recognition of standards exist very flexible, which would constitute a set of legal rules of conduct of States, whose insolvency would be governed by a sys tem of sanctions other than those provided in traditional norms, possibly assimi late the moral obligations versed in the systems of any mandatory internal state s; this is the discussion about the existence of what has been called "soft law" as opposed to traditional rules, then described as "hard law". Apparently, this is would be a contradiction: to give to certain rules of international law, a p ower that overrides the will of states, including the general principles of law, and at the same time recognizing other standards as effective as mild, the poin t of evil can be described as "legal rules". However, should proceed from the as sumption that the issue is current, it emerged in the mid-twentieth century, whe re international law has a new content, also be a set of rules commissive for St ates to impose behavior and not merely a prohibition on all States powerful. Abandoned the rule to be th e norms of international law a set of rules for self-restraint, that States impo se on themselves, not only gain other important values that inform creative forc e of law, as it recognizes that there are limits to the will of the States no mo re focused in traditional concepts of sovereignty. The emergence of "jus cogens" represent nothing more than the abandonment of theories proactive exacerbated t he past century, they saw the manifestation of the will of States as expressed i n international treaties and conventions, or implicit, as in customary internati onal law, the only source of legal rules, it seems, that it would be a reassessm ent of major theories of the natural law of the sixteenth century, particularly the Spanish theologians, then put himself at the time of the birth of internatio nal law, this time covered with a cloak over sophisticated and within a coherent legal system, consisting of sufficient quantity of written rules, customs and i nternational well-defined, along with a rigorous methodology of investigation of sources of law. Dare we say that, in parallel to what happened in national lega l systems, awareness of standards higher than the will of the ordinary legislato r, who had been the basis of contractualism XVII century and fundament of the co nstitutionalist movement of XVIII century, was to succeed in the twentieth centu ry, with the emergence of discussions on "jus cogens"! It is clear that there wa s still the erosion of the basic concept of the legitimacy of international stan dards, such as constitutionalism held in national legal systems, to have shifted the source of legal norms, the person of the leader of the company, placing it in sovereignty of the people. However democratic it wants to, at present, intern ational law (the clues are exciting, like: participation of society, by means of parliamentary control, the executive acts of the main generators of internation al law, advertising of international treaties and conventions , as an obligation of States today, the opening of international negotiations to direct participat ion of representatives of so-called "civil society"), yet he continues to be so predominant and overwhelming, an elaboration of the States,€responsibility with

a focus on their executive branches. Anyway, the vertical globalization of inter national standards, which invade the internal legal systems of States, which has forced the people's participation in the formulation of rules of international law, is a fact that can not be overlooked in their current-day reality , includi ng reflections on international relations to general dissatisfaction in the dome stic legal systems, the relative failure of the welfare state in accomplishing t heir desiderata. For his part, "soft law" has emerged as a result of repeated an d increasingly active in the twentieth century, multilateral diplomacy, in its t hree subtypes: a) international relations conducted in congresses and conference s, which have to be commonplace (diplomacy by congresses and conferences), b) in ternational relations undertaken within the permanent intergovernmental organiza tions (parliamentary diplomacy), forms of international relations for centuries passados1 nonexistent, and c) regular meetings provided for in international tre aties or conventions, or agreed "ad hoc" (diplomacy by joint committees). Also i n summit diplomacy, meetings and direct diuturnal among those responsible for in ternational relations of States, Heads of State or Government, Ministers of Stat e, particularly foreign, has allowed the practice of Press Kits, Minutes, Final Declarations that are 'soft law'. Undeniably, these phenomena point to the requi rement of total advertising and a more effective participation of other segments of society, beyond the government sector, such as delegations of NGOs and press ure groups, always postulated in any meetings of the organs of multilateral dipl omacy. The influence of international media, in addition to providing an opening of multilateral diplomacy in addition to other normative sources of the States, he has added more power to the role of popular controls the generation of inter national law (and 1 Meetings of administrative unions and the Pan American Union the end of the nine teenth century may be regarded as remote history of parliamentary diplomacy toda y. We believe that parliamentary diplomacy institutionalized within the permanen t intergovernmental organizations, is an emergency at the end of World War I, wi th the establishment by the Treaty of Versailles of 1919, the League (or Society ) of Nations and the International Labour Organisation , ILO, both based in Gene va. See our work: Organs of States in International Relations: Forms of Diplomac y and Immunities, Rio de Janeiro, Editora Forense, 2001 (in press). again, the idea that the law should respond to the yearnings of the people prese nt in constitutionalism, reappear in multilateral diplomacy). The facts pointed out in particular the political motivations, in our view, represent the needs an d aspirations of contemporary man, which will produce a rethinking of traditiona l basis of the sources of international law. 5.1. The "jus cogens" and controls the Legality of the International Even after having been installed in the doctri ne in international law, after Hugo Grotius, the view that its rules would resul t simply from the desire expressed or implied States, which, coupled with the id ea that all the States would be allowed unless expressly forbidden behaviors by the international standard (it is, as already pointed out, of what is called "vo luntarism"), was a boxer of great authors at the dawn of the century XX, among t hem Leon Duguit Scelli and Georges, who refused to swell the ranks of "estatólat ras" and worship the pure legal formalism as the sole reason for the law. Be the sociological roots of the right, supported the idea of solidarity (Duguit) is i n discussions about the impossibility of "immoral treaties" (Scelli), discussing not only the fundamentals of international treaties, but of all international l aw and should be noted that to the Professor. Scelli, what is now called "jus co gens", for it was what he called "general international law." Moreover, it turne d out, in parallel with international law in domestic legal systems of States, a reassessment of the liberalism of the previous centuries, who regarded the will as a center without legal limits. Particularly in the field of contracts betwee n private individuals, in the cases of applicability of norms of foreign legal s ystems, made possible by the standards of a national private international law,€ ancient concepts of limits imposed by "rules of public policy," existing in the

national legal systems gain importance, for a sophisticated construction from th e end of the nineteenth century, especially the figure of Professor. Enrico Manc ini. In constitutional law, theories about the boundaries of the Constituent Power have been proposed: the principle, for the C onstituent Power Derived (responsible for reform of the constitutions, which sho uld respect the so-called "immutable clauses" of the constitutional text to be r etired) and subsequently, limits itself to the existing Constituent Power Primit ivo (responsible for making a new constitution, in principle, without any restri ctions, even without the limitations of immutable clauses of the Constitution to be repealed). In all branches of law, certainly after the emergence of consciou sness of the relevance of standards inherent in the human person (it seems even that person was rediscovered by law, disseminated from the horrors of Nazism!) I n the second half of the century XX emerged from considerations of a normative c ontrast between two poles, one consisting of higher standards, relatively unchan ged, the "jus cogens" and other standards in some way subordinate to those who h ave come to constitute what came to be called "jus dispositivum. In public inter national law, also in this historical epoch, that mailing forgotten about the ex istence of a "jus cogens" on your system, gained new life and became one of the most fascinating themes that pervade in actuality, not only the question of exam ination of control of legality and legitimacy of the norms of international trea ties and conventions signed by states, as customs and international, we believe, to general principles of law, its existence as soon see, has been recognized by international jurisprudence, unmistakably . Already in 1951, when there were no written regulations of the Vienna Convention on the Law of Treaties, at the req uest of the UN General Assembly, the ICJ would be called and give an Advisory Op inion on the possibility for States to submit reservations to the Convention for the Prevention and Punishment of the Crime of Genocide, signed on the same occa sion that had been proclaimed the Universal Declaration of Human Rights, namely the II day of the UN General Assembly in 1948 in Paris. That Convention did not foresee the possibility of reservations, and further doubts about its possibilit y, there were still others, concerning the relationships between states reservat ários and possibly other members of the Convention, the issues were burning, in to the importance that States attributed to that multilateral treaty, and in sig ht of a fear that unrestrained permissiveness of reserves, could disfigure your purposes. The ICJ in the Advisory Opinion of May 28, 1951, reaffirmed the princi ples on the admissibility of reservations and the consequences of objections to them, (by the way, identical to the rules of the Vienna Convention on Law of Tre aties, studied in Chapter 4 of this work), stating that they are only possible a nd effect insofar as they are compatible with the object and purposes of the Con vention. In the case "in specie", the ICJ has positioned itself well to respond to the question of what would be the character of their reservations and objecti ons in the case of the Convention on the Prevention and Punishment of the Crime of Genocide: "The principles on which it is based, are recognized by civilized n ations as binding on States, whether the standards of an international Conventio n, it was conceived as a convention of universal scope, its purpose is purely hu man and civilizing, or the contractors do not receive benefits or disadvantages individuals, nor their own interests but a common interest. Where are allowed to conclude that the object and purpose of the Convention imply, both in relation to the General Assembly as the States that have adopted it, intending to gather the widest possible participation "2. The decisive impetus for the resumption of the historical discussion of principles exist above the full autonomy of the wi ll of States was undoubtedly the work of the International Law Commission of the UN, particularly, in charge of the Vienna Convention on Law of Treaties of 1969 , which, back up, is in force internationally since 1980 (30 days after the depo sit of the 35th instrument of ratification with the Secretary General of UN), an d also responsible for approving the Project on International Responsibility of states current days,€under consideration at the UN General Assembly (in which he postulates the existence of international crimes attributable to States, subjec

t to following question). The Vienna Convention on the Law of Treaties of 1969, the two devices in which the "jus cogens" is expressly mentioned, at any time th ere is reference to a hierarchy of sources, and the 2 Text apud Nations Unies, Résumé des Arrêts, Avis Consultatifs et ordonnance de l a Cour Internationale de Justice, 1949-1991, New York, Nations Unies, 1992, p. 2 3 (in our translation). even refer to a hierarchy of standards and both are related to issues concerning the validity of international treaties. It is the art. 53 (sculptured in sectio n regarding nullity of treaties) and art. 64 (in section regarding revocation an d suspension of treaties), both included in Part V of the Convention, who calls himself "Invalidity, Termination and Suspension of Application of Treaties". His words are worth copying, "verbis": Article 53 treaty in conflict with a perempt ory norm of general international law (jus cogens) is void the treaty that at th e time of its conclusion conflicts with a peremptory norm of general internation al law. For purposes of this Convention, a peremptory norm of general internatio nal law is a norm accepted and recognized by the international community of Stat es as a whole as a norm from which no derogation is permitted and which can be m odified only by a subsequent norm of international law generally similar in natu re. Article 64 Emergence of a new peremptory norm of general international law ( jus cogens) If you survive a new peremptory norm of general international law, a ny existing treaty in conflict with that norm becomes void and cease to exist. T he art. 53 transcript, barely outlines what he considers as "jus cogens", "norm accepted and recognized by the international community of States as a whole", al though it has given their distinctive notes, in all other standards, in order to mark her position hierarchical than these: its prevalence in cases of conflict and its inderrogabilidade by them. On the question of what the "set of states," its vagueness has the same problems as those related to the establishment of int ernational morality (the question of indeterminacy of the number of times an act ion should be taken to constitute itself as a custom international): In our view , the issue does not present major difficulties, taking into account, as we did that, just as the creation of a custom refers more to the prevalence of values r ecognized as binding on it (the relevance of " opinio juris "), the determinatio n of a rule as" jus cogens "depend on the transcendental values that it receives . We know, from reports of meetings of the CDI, the purpose of the Vienna Conventi on on the Law of Treaties, which it declined to give examples of rules of "jus c ogens" in the final text adopted (given the obvious risk that any enumeration in legislative text contains, to limit the scope and purpose of the device). The m inutes of those sessions, however, reveal that they had been offered some exampl es of treaties that could attest to the strength of the derogatory "jus cogens", such as treaties that legitimize the use of force, contrary to the provisions o f the UN Charter, treaties that organize the slave trade, or that could legitimi ze piracy or genocide, treaties that violate standards of human rights protectio n. The internationalist doctrine that addressed the hermeneutics of those device s of the Vienna Convention on the Law of Treaties, has stated that the task of s aying what values constitute the "jus cogens", should be given to other sources of international law, namely, the doctrine and the series of international juris prudence. This understanding, in our view is reinforced by art. In our view, the interpretation is correct and is reinforced by another express provision of the Vienna Convention on the Law of Treaties, art. 66 point a), provides: "Any part y to the dispute about the application or interpretation of art. 53 or 64 may, u pon written request, submit it to the International Court of Justice unless the parties decide by mutual agreement, submit the dispute to arbitration. " Though it was not a request as provided for in that art. 66 of the Vienna Convention on the Law of Treaties, cogens, it seems, a concept already integrated, without ma jor international jurisprudence has manifested itself, incidentally, on the ques

tion of "justice questions, the considerations of the sources of international l aw . In the Barcelona Traction case, judged on merit,€in 1970 by the ICJ, there is an important "obiter" (3) that deserves to be transcribed "verbatim:" A disti nction must be drawn between the obligations of states towards the international community as a whole and those born in the face of a 3 The passage quoted is a statement of the court, which was not relevant to the so lution of the question, so much so that an official register of synthetic judgme nts of the ICJ, not to mention, cf. United Nations, New York Summaries of Judgme nts, Advisory Opinions and Orders of the International Court of Justice, 1948-19 91, id., Ibid., Is the summary of the trial of preliminary issues (p. 67-69), ei ther in summary decision "of merit" (p. 76-78). Our transcript was made from the existing text in the Reports of the CDI, the theme of the International Respons ibility of States. another State, under the protection diplomática4. By its very nature, the first concern to all States. Given the importance of the rights concerned, every state can be considered as having a legal interest in these rights are protected; obl igations that these are obligations "erga omnes "..." such as the declaration of illegality ("mise hors la loi) acts of aggression and genocide ... and [the obl igation to respect] the principles and rules pertaining to fundamental human rig hts, including protecting them against the practice of slavery and racial discri mination." A discussion parallel to that of "jus cogens", developed in the Inter national Law Commission, concerning the development of its Project on Internatio nal Liability Estados5 under the chairmanship of the late lamented and illustrio us Professor of Milan, Roberto Ago, one project that currently lies just within that Committee, was, when the Re-present work, delivered to the UN General Assem bly for its consideration by States against the possibility of convening a diplo matic conference "ad hoc" to subscribe a future treaty with the standards in the program. These are among the many ways to regulate itself to the international responsibility of States for violations of international norms (acts on that pro ject, typified as "crimes"), defining the responsibility of states, the practice of "international crimes" . In our view, this is the most objectionable part of that project, not only by attempts to criminalize conduct of the states themsel ves in international relations (in comparison with the fact that the institution of criminal responsibility tends to always be centered on the individual) as by the fact that in a criminal statute, made use of examples. 4 Remind yourself that this was the diplomatic protection that Belgium had helped the Belgian shareholder of a Canadian company, which provided public services in Spain, which had nationalized the assets of the company Barcelona Traction Ligh t & Power, according to Belgium, disrespect the norms of international law. The ICJ held that diplomatic protection is given to individuals rather than corporat ions in order to rule that prescribes the nationality between the State Guard an d protected persons. Besides the illegitimacy of Belgium, proved that there was no exhaustion of domestic remedies in Spain, to set up a denial of justice (deni al of access to courts), that yes, because of international responsibility on th e part of Spain. 5 Your text and our comments are our business: The Responsibili ties in International Law of Environment ", thesis for Professor of Public Inter national Law, introduced in 1995, the Faculty of Law of USP and the book, Intern ational Environmental Law: Emergency Duties and Responsibilities, São Paulo, Edi tora Atlas (in press). However, it is worth quoting some devices that project, as an element that allow s certain criteria to mean the essence of the phenomena that, according to the C DI may possibly be defined as the content standards of "jus cogens". In his art. 19, menu "Crimes and International Crimes," the § 1 defines what constitutes an

"international crime": the fact that internationally wrongful resulting from a breach by a Member of an international obligation so essential for the protectio n of fundamental interests of the international community that its breach is rec ognized as a crime by that community as a whole. " Then list the cases, followed by examples in § 3 of the aforementioned art.19: "a) a serious breach of an int ernational obligation of essential importance for the maintenance of internation al peace or security, such as prohibiting aggression;€b) a serious breach of an international obligation of essential importance for safeguarding the right to s elf-determination of peoples, such as that prohibiting the establishment or main tenance by force of colonial domination, c) a violation grid and large-scale of an international obligation of essential importance for safeguarding the human b eing, such as those prohibiting slavery, genocide and apartheid, and d) a breach of an international obligation grade of primary importance to safeguarding and protecting the human environment, as those prohibiting massive pollution of the atmosphere or the seas. " In the same Project on International Liability of Stat es, IDUs referred to the theme of "jus cogens", in the chapter that nothing conc erning the criminal responsibility of States, as in Chapter V which deals with " Circumstances that ruled out illegal." No art. 29 (menu "Consent") in its § 2, r epeat "verbatim", art. 53 of the Vienna Convention on Law of Treaties, which def ines what is a "peremptory norm of general international law" to say that their emergence or invocation, rebut any responsibility for default by an internationa l obligation which would conflict with her . As we wrote in our thesis presented in 1995 at the USP Law School, commenting on the above article. 29, verbis: Sho uld stress that the CDI, however, only indicative and formulate criteria for det ermining the basic obligations that may eventually be included in the form of a norm of "jus cogens" verbis "sufficiently clear criteria to enable the internati onal practice and jurisprudence, crystallize around them and flexible enough to not be an obstacle to the development of legal consciousness of the States" (id, p. 119) 6. That said, in § 2 of art. 19, transcribed above, set up well, aspect s that should contain the criteria: a) their essentiality, in substance, with re gard to protection of interests core of the international community and b) ensur ing that the entire international community as a whole, is responsible for the t rial of an obligation to be the essence to it and, therefore, be characterized a s an international crime. According to the same CDI, it was not to define, in ot her words, the "jus cogens": this concerns the inderrogabilidade by states, ther efore, is a broader criterion than the one adopted to set up an international cr ime. 5.2. The Reality of a "soft law": An Open Question From the 1960s, given th e emergence of new issues in international law and the undoubted strength of the slope of priority to international standard with the content of a duty to coope rate, rather than their traditional garb of a right of maintaining the status qu o, "the doctrine internacionalista7 by decisive influence of North American auth ors, has been working on the phenomenon of legal norms, with degrees of normativ ity smaller than the traditional but no less significant: such standards , was c alled "soft law" as opposed to traditional, which then began to be treated "hard law." The term 'soft law', so plastic as English, the language in which it expr esses itself, defies an exact translation other languages, especially Portuguese , not so much by the character of these, but the fluidity of the concept, which, being new in international law, not yet embodied in conceptual contours, despit e the correctness and necessity of his 6 The reference in the transcribed text, with regard to the Report of the Internat ional Law Commission, conveyed to the UN General Assembly in 1976 constant IN: I nternational Law commission, Yearbook, 1976, Vol II, Part. Two, New York, UN, 19 76. Besides seven chapters of general works on public international law, highlig hted the important study conducted under the auspices of the CDI: Alberto Székel y, "Non-Binding Commitments: A Commentary on the Softening of International Law Evidenced in the Environmental Field." IN: United Nations International Law on t he Eve of the Twenty-first Century, Views from the International Law Commission,

Le Droit International à l'Aube du XXe. Siécle, Reflexions of Codificateurs, Un ited Nations, New York, 1997, p. 173-200. See also Pierre-Marie Dupuys, "Droit e t Droit Déclaratoire Proclamatoire: De la Coutume Sauvage à la" Soft law ", IN: Colloque Société Française de Droit International, Paris, 1975, p. 152 ff. account by Science Legal. "Soft law ", would its translation adequately expressed in Portuguese of Brazil, for "soft law"€were not other conn otations that the latter expression can contain in some current doctrinal this c ountry, where "flexible" mean "found on the street." The teaching in languages o ther than English, or use the term "soft law" in italics (such as we do) or circ umlocutions scholars as do the Profs. Dinh / Daille / Pellet: "not convencionais 8 concerted actions." Either way, the opposition "soft law" v. "Hard law" would indicate a contrast between two realities coexist and involve themselves: either this is the time factor (the "hard law" would be a finished product at the end of a generational evolution over time, so the standard completed in its entirety , and "soft" would be likely to be an act of power, an act of will of States, wh o aspires to become a standard), the factor order (in "hard law" States establis h strong legal obligations, to be effectively enforced, and "soft law" there are legal standards, but compliance is only recommended to States that may even not keep them, without any sanctions against defaulters). The concept of "soft law" has emerged from the growing relevance and role of multilateral diplomacy, whet her in forums diplomatic negotiations, is from interpretations given to the mult ilateral treaty developed under the auspices of intergovernmental organizations, whether of their own unilateral acts of these . is intergovernmental organizati ons, whether in congresses and conferences. The idea underlying its adoption and general acceptance, it seems, as we express ourselves, to sit in a sense that l egal rules should be closer to human needs, which do not always find support in government action (a phenomenon resulting from participation more effective for society as a whole in international policy). In such 8 For our part, we have great mental reservation to use the adjective "conventiona l" refers to something that only the agreement will either contract or internati onal treaty. "Convention", according to American Heritage, both meaning "fit, ag reement or determination on any matter, fact, etc.., Covenant, pact," as "everyt hing that is tacitly accepted, by use or general consent as standard proceed to act in social CONVINCED,: custom, social convention. " In the article, "conventi onal", the same dictionary, a general sense though record "relating to or arisin g out of an agreement," the conventional value of a coin, "highlights the signif icance, in our view, more power," consecrated or approved the use by experience "(Translations:" Convention "and" conventional "). Indeed, the contrast between soft law and hard law "applies only within the" jus scriptum, "being away from c onsiderations of a reciprocal referibilidade between them in the field of intern

ational customs. distrust, summed up, though, the trend in globalization horizontal, one of the c haracteristics of the current days, international standards invade virtually eve ry sector of societal life, being contaminated by the expertise and jargon speci fic to each field regulated (being given that negotiators traditional of states, particularly in its task of preparing the international daughter would not have adequate knowledge of the phenomena that would be regulated by international st andard classical). Finally, the relative immobility of the legal rules, it would seem inappropriate to respond to the needs of controlling the universe of inter national relations, dominated by a technology and science that were developing a t a gallop and a growing revolutionary in the relationship between states. It sh ould be emphasized that within the dynamics of such phenomena, it is essential n ot to lose sight of that in the fora of multilateral negotiations, where there e merged a "soft law", states in its activity of agents in international politics, have always been more concerned with the resolution of new issues, quick, appro priate and efficient, and less interested in inquiring about the legal guise of its decisions in common. Indeed, the normative activity of States in internation al relations, is somehow secondary or auxiliary, in all political activities, su ch as crisis management, or administration of their own interests or common to o ther states. Thus, more extensive fields of international relations, even if the y were making activities of international law, has emerged an impressive body of multilateral actions, endorsed by States€prepared in a manner distinct from tra ditional conventions and multilateral treaties or other acts criminalized from c lassic formal sources of international law, and whose reality required a definit ion of international law. The fields were privileged areas of International Econ omic Law (emphasis on discussion of a law of development or "Development") and t he international protection of the environment (the emergence of a real system, which came to be called International Law Environment), although all other aspec ts of international relations had been invaded by that trend. The names of the standards that integrate the "soft law" have varied "non bindin g agreements," "gentlemen's agreements" or codes of conduct, memoranda, joint st atement, statement of principles, the final act, and even appeals most commonly reserved for treaties and international conventions, such as agreements and prot ocols. "Gentlemen's Agreements" is, as already demonstrated in Chapter 4 of this work, a commitment to the states in the course of a negotiation, at the end of a session ends, to continue with future dealings, from the point where they meet . "Gentlemen's agreement" is not enshrined in official texts, unlike "non bindin g agreements", which expresses the same reality, and that has been used in a for mal way, the ex.: The act signed by the participating States of the ECO-92 Rio d e Janeiro, in his unusual name: "Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainabl e Development of All Types of Forests", also known as "Declaration of Principles on Forests" 9. The effects of a "gentlemen's agreement" may be varied, and both may apply to a future behavior of states in the sphere of international relatio ns, as in the sphere of their national legal frameworks. The first part, deserve s some rules of soft law adopted during the ECO-1992: at the time, were set so c ompelling, the themes for future meetings of UN bodies, namely the initiation of negotiations for in the subsequent session of the UN General Assembly on the is sue of combating desertification and to convene a UN conference to address the p roblems of fishing in high seas. Such understandings, resulted, after protracted negotiations, the Convention 9 As noted in our book International Law on the Environment: Emergency Duty and Re sponsibility, op. cit. (In press), in Chapter 4: "The Declaration of Principles on Forests resulted from the failure to negotiate a" Convention on the Exploitat ion, Protection and Sustainable Development of Forests ", in particular by the o pposition of countries like India and Malaysia, for they defend the idea of call

ing themselves the forests as national resources exclusively (and therefore subj ect to state sovereignty holders), those countries opposed the policy of industr ialized countries to consider them in its overall function within the global eco logy, as elements including the regularization of sanity and balance of the atmo sphere, and therefore worthy of preservation, even at the cost of any rational e xplorations. Indeed, while some devote postulates established worldwide on conse rvation and exploitation of forests, the Declaration of Principles on Forests, h as not drawn the express will of the States in future negotiations towards a bin ding global convention, nor any elements of international rule of law enforceabl e before international judicial or political bodies. " It should be noted that t he negotiations continued, and continue until today, though not reached a consen sus on an international agreement on forests. United Nations to Combat Desertification in those Countries experiencing Serious Drought and / or Desertification, Particularly in Africa, July 17, 1994, New Yo rk10 and the Agreement for the Implementation of the Provisions of the United Na tions Convention on the Law of the Sea of 10 December 1982 Relating to the Conse rvation and Management of Highly Migratory Fish Species and Tranzonais, adopted in New York, August 04, 199 511. As the norms of "soft law" that imply a duty to adapt national law, should be cited in the so-called "codes of conduct," the "l aws models and the countless rules that govern domestic industries. The subjects vary knowledgeable and are becoming more specialized, according to the skills o f intergovernmental organizations.€Some examples: the standards adopted by the W orld Health Organization, such the International Health Regulations, in its vari ous versions, improved since 1951 (control of diseases said quarantine) or the I nternational Code of Marketing of Breastmilk Substitutes (1981), voted by the ru les UNCITRAL, as the "Model Law on International Commercial Arbitration" 1985, a nd exciting project in constant development by ECOSOC on a Code of Conduct for T ransnational Corporations. Still anchored in a formalist conception of the inter national obligations of States are payable only to the extent that assume the sh apes of traditional sources, there are authors who deny the nomeada12 soft law a juridical and consider them as "natural obligations or moral. " In our view, th e "soft law" is not a moral obligation, we will not feel comfortable in admittin g as a moral obligation, the recommendations of an official agency of the UN or World Bank or a regional bank, on the implementation prior environmental impact studies in the territory of a State seeking a millionaire to finance a large pub lic works project, whose failure would preclude any grant of funds! 10 This Convention was signed by Brazil and its text has been forwarded for approva l by Congress, as Presidential Message nr. 697 of 15.01.1996. 11 Text and inform ation cited in 34 ILM 1542 (1995). 12 In particular, Prof. Prosper Weil, "Vers u ne Normativité Relative en Droit International", IN: Revue Générale de Droit Int ernational Public, 1982, p. 4-47. Finally, the issue of "soft law" seems to us a field where the concepts are stil l in the pipeline, and not enough to allow a formalization which is suitable to be considered with some certainty scientific sources of international law. It is an area between international politics, where prevailing inventiveness of state s and their negotiators, which raises the scant concern about legalities, or eve n where the concern may be zero formal, and International Law, which can not alw ays force their technique to able to describe any phenomena as sources of their standards. It is a foggy field where the focus needs "de lege ferenda" at least from the standpoint of standardization of the phenomena, which, in its entirety, have the appearance of having all the classic characteristics of a source inter national law. !