Soft law
Encyclopedia
The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional
law, often contrasted with soft law by being referred to as "hard law". Traditionally, the term "soft law" is associated with international law
, although more recently it has been transferred to other branches of domestic law
as well.
: "codes of conduct", "guidelines", "communications" etc. In the area of law of the European Communities, soft law instruments are often used to indicate how the European Commission
intends to use its powers and perform its tasks within its area of competence.
in the meantime.
Soft law is also viewed as a flexible option - it avoids the immediate and uncompromising commitment made under treaties and it also is considered to be potentially a faster route to legal commitments than the slow pace of customary international law
. With the passage of time, in today's globalized society it is easy to use the media and the internet to spread the knowledge of the content of declarations and commitments made at international conferences. In doing so, these aspirational non-commitments often capture the imagination of citizens who begin to believe in these soft law instruments as if they were legal instruments. In turn, it is felt that this ultimately impacts governments who are forced to take into account the wishes of citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft law instruments so frequently and with such import that they begin to evidence legal norms.
Another useful aspect of the nature of soft law is that it often can be used to evidence opinio juris on applying or interpreting a treaty
.
Soft law has been very important in the field of international environmental law where states have been reluctant to commit to many environmental initiatives when trying to balance the environment against economic and social goals. It is also important in the field of international economics law and international sustainable development law.
Nevertheless, the reliance on soft law continues and it is unlikely that its use will fade; it is far more likely to be relied on in greater amounts as it also serves as a "testing ground" for new, innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change.
law, often contrasted with soft law by being referred to as "hard law". Traditionally, the term "soft law" is associated with international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, although more recently it has been transferred to other branches of domestic law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
as well.
Definition of soft law
In the context of international law, the term "soft law" covers such elements as:- Most Resolutions and Declarations of the UN General Assembly, for example, the Universal Declaration of Human RightsUniversal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
; - Elements such as statements, principles, codes of conduct, codes of practice etc.; often found as part of framework treaties;
- Action plans (for example, Agenda 21);
- Other non-treaty obligations
European community
The term "soft law" is also often used to describe various kinds of quasi-legal instruments of the European CommunitiesEuropean Communities
The European Communities were three international organisations that were governed by the same set of institutions...
: "codes of conduct", "guidelines", "communications" etc. In the area of law of the European Communities, soft law instruments are often used to indicate how the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
intends to use its powers and perform its tasks within its area of competence.
Status of soft law
In international law, the terminology of "soft law" remains relatively controversial because there are some international practitioners do not accept its existence and for others, there is quite some confusion as to its status in the realm of law. However, for most international practitioners, development of soft law instruments is an accepted part of the compromises required when undertaking daily work within the international legal system, where states are often reluctant to sign up to too many commitments that might result in national resentment at over-committing to an international goal.Utility of soft law
Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "hard law" in the future. This "hardening" of soft law may happen in two different ways. One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law. Soft law is a convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments at a certain point in time for political and/or economic reasons but still wish to negotiate something in good faithGood faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
in the meantime.
Soft law is also viewed as a flexible option - it avoids the immediate and uncompromising commitment made under treaties and it also is considered to be potentially a faster route to legal commitments than the slow pace of customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
. With the passage of time, in today's globalized society it is easy to use the media and the internet to spread the knowledge of the content of declarations and commitments made at international conferences. In doing so, these aspirational non-commitments often capture the imagination of citizens who begin to believe in these soft law instruments as if they were legal instruments. In turn, it is felt that this ultimately impacts governments who are forced to take into account the wishes of citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft law instruments so frequently and with such import that they begin to evidence legal norms.
Another useful aspect of the nature of soft law is that it often can be used to evidence opinio juris on applying or interpreting a treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
.
Soft law has been very important in the field of international environmental law where states have been reluctant to commit to many environmental initiatives when trying to balance the environment against economic and social goals. It is also important in the field of international economics law and international sustainable development law.
Using care with reliance on soft law
Soft law is attractive because it often contains aspirational goals that aim for the best of possible scenarios. However, the language in many soft law documents can be contradictory, uncoordinated with existing legal commitments and potentially duplicative of existing legal or policy processes. Another key point is that negotiating parties are not blind to the potential lying in stealth in soft law. If a negotiating party feels that soft law has a potential to turn into something binding down the track, this will negatively influence the negotiation process, and soft law instruments will be watered down and hemmed in by so many restrictions that there is little point in creating them.Nevertheless, the reliance on soft law continues and it is unlikely that its use will fade; it is far more likely to be relied on in greater amounts as it also serves as a "testing ground" for new, innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change.
Further sources
- http://www.softlawinternationale.net
- Roberto AndornoRoberto AndornoRoberto Andorno is Senior Research Fellow at the Faculty of Law, University of Zurich . Originally from Argentina, he holds doctoral degrees in law from the Universities of Buenos Aires and Paris XII , both on topics related to the ethical and legal aspects of assisted reproductive technologies...
, "The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics", paper at a Workshop jointly organized by the German Ministry of Foreign Affairs and the German UNESCO Commission, Berlin, 15 February 2007. Available at: http://www.unesco.de/1507.html
- Alan Boyle, "Some Reflections on the Relationship of Treaties and Soft Law", International and Comparative Law Quarterly, 1999, vol. 48, n° 4, p. 901-913.
- C M Chinkin "The Challenge of Soft Law: Development and Change in International Law", 38 International and Comparative Law Quarterly 850 (1989)
- Andrew T. Guzman & Timothy L. Meyer, "International Soft Law," 2 J. Legal Analysis 171 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353444.
- Hartmut Hillgenberg, "A Fresh Look at Soft Law", European Journal of International Law, 1999, n° 3, p. 499-515. Available at: http://ejil.oxfordjournals.org/cgi/reprint/10/3/499
- Timothy L. Meyer, "Soft Law as Delegation, 32 Fordham Int'l L.J. 888 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1214422.
- Gregory C. Shaffer & Mark A. Pollack, "Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance, 93 Minnesota Law Review (forthcoming Jan. 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426123.
- D Hodson and I Maher, ‘Soft Law and Sanctions: Economic Policy Co-ordination and Reform of the Stability and Growth Pact’ (2004) 11 JEPP 798
- OA Stefan, European Competition Soft Law in European Courts: A Matter of Hard Principles? (2008) 14(6) European Law Journal 753