ABSTRACT
There still exists virtual unanimity among scholars o f international law that formal
instruments are international treaties and that oral agreements are binding in international law. The problems arise in regard to informal instruments, i.e., instruments that do not contain the regular formalities o f treaties, hcreasingly, the
approach has been to treat informal instruments simply as non-binding in
international law but binding in some other manner, e.g., as non-legal agreements309,
soft law instruments310 and/or m orally/politically311 binding instruments.312 This
standpoint seems to fit in with the basic principles o f treaty-making because these
scholars operate on the basis of a binary mode o f analysis: either an instrument is a
treaty or it is not. They accept that states are free to create international treaties
binding in international law, but even where states do not, the instruments they adopt
still contain normative guidance and must thus be somehow binding on them. This
approach faces considerable problems.313
