Soft law as a source in international state law
Article 38(1) of the Statute of the International Court of Justice (‘ICJ Statute’) enumerates the sources of international law. These include treaties, international custom, general principles of law recognised by civilised nations, and judicial decisions and the teachings of highly qualified publicists. However, due to the evolution of international relations, particularly because of the enormous expansion of the activities of international organisations and the ensuing shifts in the ways in which public international law was being made by States and international organisations alike, it soon became clear that it was not only rules which conformed to the model of law laid down by article 38 that were guiding state conduct. To differentiate this new type of law, international lawyers christened it ‘soft law’ to differentiate it from the ‘hard law’ envisaged by the ICJ Statute. In this essay, I discuss a few developmental as well as technical issues relating to soft law. I begin by discussing what constitutes soft law.
Defining soft law
Although there is much interest currently in what is termed ‘soft law’; Sir Joseph Gold observes rather whimsically that there are ‘almost as many definitions of soft law can be found as there are writers about it.’ However, despite such scepticism, it is still possible to fashion a working description of the concept. In this regard, it is submitted that the term soft law expresses a preference and not an obligation that states should act, or should refrain from acting, in a specified manner. In international law, ‘hard’ or ‘firm’ law is an obligation of a state or states for the breach of which it or they are responsible, whatever the form of sanction or penalty that responsibility may entail. Soft law does not imply obligation and, therefore, possible breach and responsibility for breach; soft law is instead a norm expressed by the international community to which it is hoped, at least by the group of states articulating the norm, that states will adhere, but to which there is no obligation of adherence.
Soft law therefore concerns rules of conduct that find themselves on the legally non-binding level (in the sense of enforceable and sanctionable through international responsibility) but which in accordance with the intention of its authors indeed do possess a legal scope, which has to be defined further in each case. Such rules do not have in common a uniform standard of intensity as far as their legal scope is concerned, but they do have in common the fact that they are directed at and do have an effect on the conduct of States, international organisations and individuals, however without containing strict international legal rights and obligations. This rendering of state obligations could not be comfortably be captured by the old categories at international law, hence the development of a separate category.
The development of soft law
The concept of soft law has encountered a fierce opposition by a number of international lawyers. According to this opinion, it is not desirable to speak about soft law in public international law for various divergent reasons. For example, it is argued that the concept’s will curb the willingness of States to pursue hard law or to observe it; that the concept itself is a classic example of a contradiction in terms; and finally that soft law is regarded as public international law overstepping its limits in a futile attempt to render international political relations too juridical. Yet despite these objections, the international lawyer finds himself facing an unprecedented proliferation of international non-conventional instruments which have been brought about by States and international organisations and which are intended to have, or are having, the effect of influencing the conduct of States, international organisations or individuals in a permissive, prohibitive or prescriptive way.
The reasons why these non-conventional instruments are called upon are divergent but state practice unmistakably shows that the catalogue of sources in Article 38(1) of the ICJ Statute is inadequate. Treaty law does not apply to these non-conventional instruments, nor can they be clothed with the authority of customary law. Yet they cannot be correctly construed as being legally non-binding.
Consequently, soft law developed in response to this conceptual void; in order to describe activities that do not strictly conform to binding international law and yet have some significant legal scope. However soft law is not only a means to explain normative phenomena of State practice, but that it is also and more importantly a concept which finds its raison d’être in the need to describe and define the legal effects of non-conventional instruments which regulate international practice.
The situation of soft law on the penumbra of the legally-binding and the not-legally-binding allows states to use soft law devices for a number of purposes. I describe some of these below.
The use of soft law in international law
The manner in which soft law is utilised by states varies from case to case and is incapable of strict categorisation. The only common element is that states and international organisations use them where strict legal obligations are not desired or are impossible to achieve. Soft law instruments include the following:
Resolutions adopted by or within an international organisation. Such resolutions can declare rules of conduct by a representative part or the entire international community which define more precisely and codify a pre-existing State practice or are a preview of subsequent State practice. As long as the essential conditions for a genuine international obligation are not yet fulfilled via the conventional way, the resolutions may constitute soft law.
Codes of conduct. The striking feature of these international instruments is that their rules of conduct are not exclusively directed at States or international organisations, but also at natural persons or legal persons. The OECD Guidelines for Multinational Enterprises of June 21, 1976 is a pre-eminent example in this respect.
Soft law disguised as hard law. This refers to instruments the authors of which, in creating them, sometimes have consciously chosen forms and procedures that can hardly be distinguished from the treaty law model; but after a closer look and an analysis of their subject matter they do not contain rights and obligations of public international law. The Final Act of Helsinki is an example.
Joint communiqués or declarations. The results of international contacts and discussions can be laid down in this form and signed by the participating States and international organisations. Although non-binding, such declarations are indicative of future State conduct.
Gentlemen’s agreements. Gentlemen’s agreements, as far as the category with a normative character is concerned, can be another form of soft law. They are described by Aust as ‘informal international instruments’: they are not treaties ‘because the parties to it do not intend it to be legally binding’ but nevertheless do guide state conduct.
Concluding remarkIt is clear from the foregoing that soft law is an important device for conducting international relations. It offers states and international organisations the option of forging agreements where insistence on strict legal obligations would result in impasse. It is therefore a category of law that should be kept rather than dismissed.
- Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space adopted by the General Assembly on December 18, 1963.
- Final Act of Helsinki
- OECD Guidelines for Multinational Enterprises of June 21, 1976 (1976) 15 I.L.M. 967. Code of Conduct for Law Enforcement Officials adopted by the GA on December 17, 1976
- OECD Guidelines governing the protection of privacy and transborder flows of personal data
Books and articles
- Arangio-Ruiz in Colloquium of the Hague Academy on The Protection of the Environment and International Law (Sijthoff, Leiden, 1975).
- Aust, ‘The Theory and practice of informal international instruments,’ (1986) 35 I.C.L.Q. 787
- Bothe, ‘Soft law’ in den Europäischen Gemeinschaft,’ in Festschrift für Hans-Jürgen Schlochauer (W. de Gruyter, Berlin, 1981) 761.
- Dijk, P van‘The Final Act of Helsinki. Basis for a Pan-European System?’ NYIL (1980) 97
- Gold J Interpretation: The IMF and international law (1996).
- Lachs, M ‘The Threshold in Law-Making’ in Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mossler, (Springer Verlag, Berlin, 1983) 493 at 500.
- Lichtenstein, CC (2001) 35 International Lawyer 143
- Parry C The sources and evidences of international law (1965).
- Schwebel, M ‘United Nations resolutions, recent arbitral awards and customary international law’ in Realism in Law-Making. Essays on International Law in honour of Willem Riphagen (Nijhoff, The Hague, 1986) 203.
- Tammes, A ‘Soft law’ in Essays on International and Comparative Law in Honour of Judge Erades, (Nijhoff, The Hague, 1983) 187.
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Baxter 1980 and Weil 1983 are seminal works that approach soft law from opposite positions. Baxter 1980 sees in soft law the infinite variety of international law expressing a “different intensity of agreement” (p. 566). Weil 1983 is the author’s most quoted landmark work in which he is critical of the notion of “relative normativity,” and in which he warns us not to blur the distinction between normative and non-normative rules and to differentiate between normative and pre-normative acts in the international norm-creating process. Klabbers 1996 has steadily fought against the notion of soft law, asserting that it is redundant since “the traditional binary conception of law is well capable of performing the functions usually ascribed to soft law” (p. 168). Chinkin 1989, with far-sighted thoroughness, adopts a position that evaluates the pros and cons of soft law, taking into account its impact in law-making procedures and in the implementation and adjudication of international law. Shelton 2000 is a groundbreaking work of the American Society of International Law that evaluates nonbinding norms and discusses compliance with soft law through an assessment of a wide variety of nonbinding instruments on key subjects. Abbott and Snidal 2000 transcends disciplinary divisions and criticisms of soft law to argue that the “realm of ‘soft law’ begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation” (p. 422). On the state of the art on soft law, D’Aspremont and Aalberts 2012 and Pauwelyn, et al. 2012 offer an invaluable analysis of the different legal theories on international law, searching for answers to the questions that soft law raises.
Abbott, Kenneth, and Duncan Snidal. “Hard and Soft Law in International Governance.” International Organization 54 (2000): 421–456.
DOI: 10.1162/002081800551280E-mail Citation »
Cited in many other works, this article is a landmark in American scholarship with an interdisciplinary scope transcending divisions between international relations and international law. The authors argue that “it initiates a process and a discourse that may involve learning and other changes over time” (p. 423), allowing actors to evaluate their soft law commitments in the context of legalization.
Baxter, Richard R. “International Law in ‘Her Infinite Variety.’” International and Comparative Law Quarterly 29.4 (1980): 549–566.
DOI: 10.1093/iclqaj/29.4.549E-mail Citation »
Seminal work approaching soft law as one element among the many varieties of international law and as one that expresses a “different intensity of agreement” (p. 566) through “various degrees of cogency, persuasiveness, and consensus which are incorporated in agreements” and also through “various norms of customary international law, in terms of degree of acceptance, of precision, of relevance” (p. 549). Available online for purchase or by subscription.
Chinkin, Christine M. “The Challenge of Soft Law: Development and Change in International Law.” International and Comparative Law Quarterly 38.4 (1989): 850–866.
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In a mere sixteen pages, Chinkin, with far-sighted thoroughness, adopts a position that evaluates the pros and cons of soft law and its application to economic law, taking into account its impact in law-making procedures and in implementation and adjudication of international law. A must-read article when approaching the subject. Available online for purchase or by subscription.
D’Aspremont, Jean, and Tanja Aalberts, eds. “Symposium on Soft Law.” Leiden Journal of International Law 25.2 (2012): 309–372.
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D’Aspremont and Aalberts trigger the debate on soft law that Ellis and Goldman develop passionately with differing and converging theoretical approaches to soft law. Ellis summarizes the spirit of the symposium in affirming that the role of soft law is “to provoke investigation into, and debate about, the nature, sources, validity, and legitimacy of law” (p. 372).
Klabbers, Jan. “The Redundancy of Soft Law.” Nordisk Journal of International Law 65.2 (1996): 167–182.
DOI: 10.1163/15718109620294889E-mail Citation »
This must-read work asserts that the notion of soft law is redundant since “the traditional binary conception of law is well capable of performing the functions usually ascribed to soft law,” even though it “cannot be said to be legally insignificant either” (pp. 167–168). Available online for purchase or by subscription.
Pauwelyn, Joost, Ramses A. Wessel, and Jan Wouters, eds. Informal International Lawmaking. Oxford: Oxford University Press, 2012.
DOI: 10.1093/acprof:oso/9780199658589.001.0001E-mail Citation »
This work provides a valuable contribution from a multidisciplinary perspective to the study of soft law. It includes extensive empirical studies of scholars and practitioners analyzing informal international law-making around three axes, namely output informality, process informality, and actor informality, in aiming to assess if this informality jeopardizes transnational law-making accountability.
Shelton, Dinah, ed. Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Oxford: Oxford University Press, 2000.
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Groundbreaking work of the American Society of International Law evaluating nonbinding norms and discussing compliance with soft law through an assessment of a wide variety of nonbinding instruments on key subjects. Valuable introductory chapters are followed by studies of sectors and commentaries to these studies written by well-reputed experts. A must-read work.
Weil, Prosper. “Towards Relative Normativity in International Law?” American Journal of International Law 77 (1983): 413–442.
DOI: 10.2307/2201073E-mail Citation »
A much-quoted landmark work critical of the notion of “relative normativity,” warning not to blur the distinction between normative and non-normative rules and to differentiate between normative and pre-normative acts in the international norm-creating process. A must-read article for scholars and students approaching the subject. Available online for purchase or by subscription. A version in French is available: “Vers une normativité relative en droit international?” Revue générale de droit international public 86 (1982): 5–47.