Hard Law

Hard and Soft Law

The line between law and not-law may appear blurred. Treaty mechanisms are including more ‘soft’ obligations, such as undertakings to endeavor to strive to cooperate. Non-binding instruments in turn are incorporating supervisory mechanisms traditionally found in hard law texts. Both types of instrument may have compliance procedures that range from soft to hard. The result seems to be a dynamic interplay between soft and hard obligations similar to that which exists between international and national law. In fact, it is rare to find soft law standing in isolation; instead, it is used most frequently either as a precursor to hard law or as a supplement to a hard law instrument.

Soft law instruments often serve to allow treaty parties to authoritatively resolve ambiguities in the text or fill in gaps. This is part of an increasingly complex international system with variations in forms of instruments, means, and standards of measurement that interact intensely and frequently, with the common purpose of regulating behavior within a rule of law framework. The development of complex regimes is particularly evident in international management of commons areas, such as the high seas and Antarctica, and in ongoing intergovernmental cooperative arrangements. For the latter, the memorandum of understanding has become a common form of undertaking, perhaps ‘motivated by the need to circumvent the political constraints, economic costs, and legal rigidities that often are associated with formal and legally binding treaties’. [1]

In many cases, hard law instruments can be distinguished from soft law by internal provisions and final clauses, although the characteristics of each are increasingly difficult to identify. Recently, supervisory organs have been created to oversee compliance with non-binding norms. The Commission on Sustainable Development, for example, supervises implementation of Agenda 21. In other instances, states have been asked to submit reports on implementation of and compliance with declarations and programs of action, in a manner that mimics if it does not duplicate the mechanisms utilized in treaties.

Some scholars have distinguished hard law and soft law by stating that breach of law gives rise to legal consequences while breach of a political norm gives rise to political consequences. Such a distinction is not always easy to make. Testing normativity based on consequences can be confusing, since breaches of law may give rise to consequences that may be politically motivated. A government that recalls its ambassador can either be expressing political disapproval of another state’s policy on an issue, or sanctioning noncompliance with a legal norm. Terminating foreign assistance also may be characterized either way. Even binding UN Security Council resolutions based on a threat to the peace do not necessarily depend upon a violation of international law.

While the systematization and interpretation of rules and principles are crucial, it is first necessary to identify the process by which those rules and principles are authoritatively created. If states expect compliance and in fact comply with rules and principles contained in soft law instruments as well as they do with norms contained in treaties and custom, then perhaps the concept of international law, or the list of sources of international law, requires expansion. Alternatively, it may have to be conceded that legal obligation is not as significant a factor in state behavior as some would think. A further possibility is that law remains important and states choose a soft law form for specific reasons related to the requirements of the problem being addressed and unrelated to the expectation of compliance. Each of these possibilities is explored in the studies that follow.

It seems clear that compliance with soft law cannot be separated from the issue of why states have recourse to soft law forms for their international commitments. There are several possible reasons that could explain the choice of soft law over hard law. [2]

Bureaucratization of international institutions

Bureaucratization of international institutions has led to law that is ‘deformalized’ through programs of action and other policy instruments. The reason for the growth of international institutions, bureaucracies and institutions is that they serve a purpose, in the same way that administrative agencies have become an essential part of national societies. Technical details, need for flexibility, and rapid response necessitate permanent institutions with the competence and mandate to initiate norm-creation, monitor and assist performance, and secure compliance. Where institutions can assess performance, hard law may not be necessary because state behavior is likely to change in response to the assessments. Moreover, international institutions generally lack the power to adopt binding instruments and can only have recourse to soft law.

The choice of non-binding norms and instruments

The choice of non-binding norms and instruments may reflect respect for hard law, which states and other actors view cautiously. They may use the soft law form when there are concerns about the possibility of non-compliance, either because of domestic political opposition, lack of ability or capacity to comply, uncertainty about whether compliance can be measured, or disagreement with aspects of the proposed norm. When states do not feel they can comply with a norm, they are largely unwilling to put that norm in a binding instrument. Thus soft law may be the homage states pay to hard law and the result may be the adoption of more progressive norms than would be drafted if a hard law form were chosen. David Victor suggests that non-binding norms may be better in regulating complex environmental problems because their actual influence in changing behavior may be better than that of treaties. Generally compliance is high with treaties because states negotiate treaties with which they can comply. The process of earning consent to binding commitments leads to commitments that are excessively modest or ambiguous and thus less effective than they could be. This is particularly the case where there is a high degree of uncertainty in goals, means or capacity or where exogenous factors may impact. States seem more willing to adopt clear and ambitious commitments when they are in non-binding form. Being clear, they are more effective.

Legally binding norms

Legally binding norms may be inappropriate when the issue or the effective response is not yet clearly identified, due to scientific uncertainty or other causes, but there is an urgent requirement to take some action. Similarly, it may be necessary where diverse legal systems preclude legally binding norms. Thus, soft law may be increasingly utilized because it responds to the needs of the new international system. In national legal systems, law-creating methods have always varied, from constitution-writing, to legislation, executive decrees, administrative regulation, and private contract, as well as common law. International law-making itself has changed over time. Where it was once almost entirely customary in origin, treaty-making, first bilateral, then multilateral, has come to be seen as the predominant form of law-making in the modern world.

Active participation of non-state actors

Soft law allows for more active participation of non-state actors. Where states once created and applied international norms through processes that lacked transparency, participation, and accountability, non-state actors have become a significant source of power alongside, if not outside, state control. Public participation is not only a goal but a reality in the development and implementation of international norms. Soft law permits non-state actors a role that is possible only rarely in traditional law-making processes.

Adopted more rapidly

Soft law generally can be adopted more rapidly because it is nonbinding. It can also be quickly amended or replaced if it fails to meet current challenges. Its flexibility extends to implementation and compliance where the dynamic interaction of the various actors can play a crucial role. Soft law may thus substitute for hard law when no agreement on hard law can be achieved or when recourse to the hard law form would be ineffective (less progressive norms or less likelihood they would be acceptable in the national political arena). It may be that an increased number of negotiating states makes it more likely that there will be few hard law agreements in the global setting. If this is the case, we would expect to see more soft law on the global than the regional level, and that appears to be the case.

Author: Dinah Shelton

Federal or State Law Explained

Resources

Notes

1. Johnston, supra note 11 at p. xxiv.
2. See Lipson, C., ‘Why are Some Agreements Informal?’ (1991) 45 Int. Org.495. Lipson suggests four reasons for choosing informal agreements: to avoid formal and visible pledges; to avoid ratification; to be able to renegotiate or modify as circumstances change; and to achieve a result. He sees speed, simplicity, flexibility and privacy as part of informal agreements.

See Also

• Civil Procedure (in international or comparative law)
• Federal Courts (in international or comparative law)

References