Editorial: Forms and functions of soft norms and informal law-making in international migration law: a different frontier

Abstract

Editorial on the Research Topic Forms and functions of soft norms and informal law-making in international migration law: a di erent frontier This Research Topic brings together the results of a legal investigation into the properties of the Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly, and Regular Migration (CGM) as soft-law instruments, including the measures by which states or regions have sought to implement the commitments therein. In so doing, it adds to the study by Farahat and Bast (2022), and the scholars whose work was represented in that Special Issue, who interrogated the Compacts' relationship to multilateral treaty rules. The articles collected in the present Research Topic explore how interpretative guidance could be an instrument complementing political power or the hierarchy of norms, utilized to resolve the binary soft/hard law conundrum and the subsequent intersectional difficulties facing the applicability of the Compacts' alongside multilateral treaties with overlapping content. This Research Topic also asks whether informal law-making, evident in the Compacts' development at regional level, could be revealing new functions and formats of soft law. By engaging with an interdisciplinary, mostly socio-legal approach, the contributions bridge a legal analytical method about how to typify the sources making up the Compacts, with political context, so as to uncover the interrelationship with wider international law.Faced with the vast definitional semantics surrounding soft law, our editorial selfselects the stringency of rational choice theory to interrogate the role of soft law in the Global Compacts. Guzman and Meyer (2010) define "soft" as the "non-binding rules that have legal consequences because they shape states' expectations as to what constitutes compliant behavior". Conversely, the positivists explain "soft" as the absence of coercion due to an abridged or otherwise non-legitimate legislative process. The positivist school thus equates soft law to "non-law" (Crawford, 2022), while refuting the theory of a spectrum, by which soft authority may harden into legally binding effect. Others still criticize the positivists' hard/soft law binary for being impracticable in international law. In the view of constructivist and behavioral approaches to international law, consensus, which has hitherto informed international law-making is "decaying" (Krisch, 2014), as a result of globalization. In consequence, transboundary, collective issues are managed by polycentric and decentralized rule-making. In its course, multilateral