Economics · International Affairs · Law

The Role of “Soft Law” in the International Legal System

Although this concept has existed for years, scholars have not reached consensus on why States use soft law or even whether it is a meaningful analytic category. In this paper I want to highlight why States use Soft Law. I believe States may use soft law to as it makes it easier for individual states to renounce existing rules or interpretations of rules and adopt new ones. It will help them to coordinate their behavior around the new standard. There are a range of international instruments that are employed precisely because they are non-binding but still produce legal consequences. I will hereby with the help of this paper try to explain the circumstances under which the Quasi-Legal Nature of soft law will be attractive to the States.

The subject of soft law has always been an awkward one for international legal scholars. On the one hand, it is not “law” at all, strictly speaking. Under traditional approaches, as Professor Weil states, these obligations “are neither soft law nor hard law: they are simply not law at all.”[1] Language included in the Universal Declaration of Human Rights, the Helsinki Final Act, the Basle Accord on Capital Adequacy, decisions of the UN Human Rights Committee and rulings of the International Court of Justice (“ICJ”), [2] are thought to impact states because of their quasi-legal character. Thus, soft law is most commonly defined to include hortatory, rather than legally binding, obligations.[3] The focus of this definition is usually on whether or not something that looks like a legal obligation in some ways (e.g., it is a written exchange of promises between states) nevertheless falls short of what is required to formally bind states. This definition, then, is a doctrinal one – things that fall short of international law are called soft law.

When states enter into agreements, of course, they have almost complete freedom over both the form and content of the instrument. An obvious question, then, is what makes states choose one form over another. One of the most obvious sources of variety among international agreements is the choice between hard and soft law. Why do states sometimes elect to enter into agreements that are formally binding under international law and other times choose instead to enter into agreements that are “non-binding?”. The central mystery of soft law is the fact that states opt for something more than a complete absence of commitment, but something less than full-blown international law. States also generate soft law more indirectly through international organizations such as the United Nations, the International Labor Organization, and the Organization for Economic Cooperation and Development.

Soft law has historically been relegated to the fringes of academic international law discourse, notwithstanding its importance in the actual practice of states. This is perhaps because soft law has not been seen as “real” international law. Indeed, so little attention has been paid to soft law that its place within the framework of international law remains uncertain. One thing that is clear, however, is that whatever impact soft law may have, it is perceived by all to be less “law” than the “hard law” of treaties and, for that matter, custom.[4] Hard and soft law are perceived to be different in kind because the former is considered “binding” while the latter is not. One of us has argued that the distinction between hard and soft law is much less than is commonly argued, and that in fact the two generate compliance through the same mechanisms.[5] Nevertheless, we share the consensus view that the impact of soft law on behavior is smaller in magnitude than the impact of hard law, all else equal.

Importance of Soft law can be understood by four explanations which highlight the importance of Soft Law in the International Legal System:

First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance. In such situations, there is no difference between hard and soft law from a compliance standpoint. But because hard law does not deliver any additional compliance benefits, states may choose soft law to avoid even modest costs associated with making an agreement binding.

Second, under what we term the “loss avoidance” theory, moving from soft law to hard generates higher sanctions, which both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations. The key distinction between hard and soft law is that the former imposes greater costs on the violating state than does the latter. This gives hard law greater “compliance pull” than soft law. The costs come, instead, in the form of lost reputation, retaliation, or reciprocal non-compliance. With respect to two of these potential costs – reputation and retaliation – a loss is felt by the violating state without an offsetting gain to its counterparty. Reputational losses are costly because they make it more difficult for a state to enter into value-increasing agreements in the future and may change the way other states treat it today.[6]

Third, the “delegation theory” predicts that under certain conditions states will choose soft law because, relative to hard law, soft law makes it easier for individual states to renounce existing rules or interpretations of rules and adopt new ones. These renunciations can prompt a larger set of states to coordinate their behavior around the new standard, and thereby drive the evolution of soft law rules in a way that may be superior to formal renegotiation.

 Fourth, we introduce the concept of international common law (“ICL”), which we define as a non-binding gloss that international institutions, such as international tribunals, put on binding legal rules. A binding rule generally requires each state to consent to being bound. A rule of ICL, on the other hand, can be made with the input of a subset of those states bound by the underlying legal rule, such as, for example, those states that have consented to the jurisdiction of a tribunal. The rule of ICL nevertheless affects all states bound by the underlying rule because it shapes states’ expectations as to what constitutes compliance with that rule. As such, ICL provides cooperation-minded states with the opportunity to deepen cooperation if they are willing to surrender some measure of control over the content of legal rules to an international institution.

In this Article, we have advanced four complementary theories explaining why in certain circumstances states may use soft law – legally nonbinding commitments from which legal consequences flow. These theories – coordination, loss avoidance, delegation, and international common law – explain a significant range of the soft law we observe. Highlight being given to the International Common Law wherein it explains how States transfer soft law making authority to non-state entities in order to circumvent the requirement that a state consent before being bound by a legal obligation. International common law refers to those obligations that emerge from institutions that are authorized to speak about legal rules but whose pronouncements are nonbinding with respect to future conduct. It is this category of soft law that most deeply underscores the analytic need for a category of quasi-legal rules. Our theory of international common law explains that scholars and commentators need not make this choice – nonbinding rules can have legal significance when they shape expectations as to what constitutes compliance with binding rules.

[1] Prosper Weil, Toward Relative Normativity in International Law, 77 AM. J. INT’L L. 413, 414- 417 n.7 (1983).

[2] Rulings of international tribunals are not traditionally considered under the heading of soft law, but for reasons explained below we define the term to include them.

[3] Kal Raustiala, Form and Substance in International Agreements, 99 AM. J. INT’L. L. 581, 586 (favoring a distinction based on legality).

[4] Pieter Van Dijk, Normative Force and Effectiveness of International Norms, 30 F.R.G Y.B. INT’L L. 9, 20 (1987).

[5] See Guzman, A Compliance Based Theory of International Law, 90 CAL. L. REVIEW 1283 (2002); GUZMAN, infra note 6, at 211-18.

[6]Andrew T. Guzman, HOW INTERNATIONAL LAW WORKS 73-78 (Oxford 2008); George W. Downs & Michael A. Jones, Reputation, Compliance, and International Law, 31 J. LEGAL STUD. S95 (2002).

About the Author

AshnaAshna Narain Singhani is pursuing her LL.M. (Human Rights) from National Law School of India University, Bengaluru. Her core areas of interest are Women and Child Rights under National and International Laws. Her motivation to pursue LL.M. in human rights stems from her interest in International Law, particularly regarding the need to promote human rights. She has a keen interest in Legal Research as it helps in promoting awareness amongst the masses regarding the core issues. In the rare hours when she is free, she enjoys listening to music and travelling. With this interest in mind, she is currently interning with the Model Governance Foundation.

Leave a Reply