Soft Law

Soft Law

Compliance with Soft Law

In the study of compliance with soft law, several factors were identified in advance as possibly affecting state performance. While most of them apply to all subject areas in the study, the relative importance of each varies from one subject to another. The hypotheses center on the form or process of adoption, the content of the instrument, the institutional setting, and the follow-up procedures envisaged. All the hypotheses stem from a general theory that states adopt and accept international norms when it is in their self-interest and they comply for the same reason. When they do not comply, the interests of others lead to various responsive actions. The notion of self-interest can include survival, domestic politics, moral values, altruism, and economic progress. Further, compliance may result not from the possibility of sanctions but from recognition of the need to ensure sustainability of the common good. Public goods theory may be more appropriate, in fact, to the subjects of environment and human rights than game theory, which may apply to arms control and trade. [1] The factors that were hypothesized to affect compliance include:

The context of the norm-creation

The context of the norm-creation, especially the relationship between soft law and hard law. Soft law can be used to fill in gaps in hard law instruments or supplement a hard law instrument with new norms. Conversely, a soft law instrument may be adopted as a precursor to a treaty. Our hypothesis is that soft law adopted pursuant to a widely-accepted hard law agreement will reflect greater commitment and therefore produce better compliance than a new norm in soft law form chosen because there was no agreement on a hard law text. On the other hand, in subject areas of rapid change, where states agree that action needs to be taken without delay, compliance may be high even in the absence of a binding norm. The contextual setting also includes the overall level of compliance. It is assumed that the greater the consensus in the international community for the norms and the more compliance, the greater the likelihood that any single state will comply. It also may be expected that the process of norm-creation, which by itself can induce some compliance, would probably have less impact when the norms are non-binding than when they are binding. People are conditioned to obey the law and feelings of obligation often play a significant role in compliance choices. [2] Thus, the form of the rules may play a role in decision making. [3]

Content of the norm

We assume that the harder the content of the obligation the better compliance is likely to be. Ambiguity and openendedness of international standards can limit efforts to secure compliance, because states may be unsure of the required conduct or unwilling to move beyond minimal efforts to implement the perceived norm. Ambiguity may also reflect lack of agreement, in which case compliance will be uneven. Normative ambiguity may be a deliberate strategy, however, to ensure maximum agreement, especially when coupled with processes of review that can lead to normative strengthening of the provisions over time. The stability of the process and the institutional matrix for making and applying decisions on environment and development are crucial. See Handl, G, ‘Controlling Implementation of and Compliance with International Environmental Commitments: The Rocky Road from Rio’ (1994) 5 Col.J.Int’l Envtl. & Pol’y 305.

Content also varies in its impact on state sovereignty. The more intrusive the rule, the harder it may be to comply. Thus, compliance with international ‘non-binding’ norms may be greatest for ‘rules of the road’ on common spaces, where the ability of all to use the road depends on each respecting the rules and only international rules will work. The perceived economic costs of compliance or non-compliance also must be considered. ‘Positive’ obligations to take action may have costs that are absent when states are merely obliged to refrain from certain actions. Capacity thus may be crucial to achieving compliance with positive obligations. The majority of nations, for example, face issues of capacity to combat and remediate harm from local pollution, preventing full compliance with international norms. [4] Where capacity is the issue, compliance may be improved by increasing opportunities to engage in desirable behavior.

Competition in the international economy introduces incentives to noncompliance with some obligations, particularly in the area of trade. States may choose to lure investment, for example, by reducing legal controls over environmental protection, treatment of workers, or financial accountability. Incentives to defect can be very high in some areas, e.g. money laundering, but linkage of subject areas may overcome some of the disincentives. The OSCE process, coupling human rights and security concerns, demonstrated how separate subject areas may be linked in ways that promote greater compliance with the different sets of norms than would likely be achieved if each subject area was regulated on its own. Incentives also may be built into the normative instrument. [5]

The institutional setting

Institutions and mechanisms capable of giving authoritative interpretations may foster compliance because they can ‘harden’ the norm through judicial or quasi-judicial rulings. It has been asserted that ‘[the] normal way of inducement of compliance with legal obligations is . . . to submit allegations of non-compliance to a court’. [6] While this model may be challenged as overly litigious, supervisory mechanisms are crucial, especially in subject areas where the norm is accompanied by strong incentives not to comply. Monitoring and publicly revealing non-compliance may be the most effective, if not the only, method of inducing compliance in the face of strong disincentives.

It may even be possible that some stronger monitoring mechanisms exist in soft law precisely because it is non-binding and states are therefore willing to accept the scrutiny they would reject in a binding text. Compliance review mechanisms are an intermediate phase in treaty implementation, between domestic application and sanctions for non-compliance. They have a significant impact on the level of compliance because the expectation of being identified as not complying with a norm, i.e. verification by reliable sources, helps deter violations. The nature of the norm also is highly related to the need for and ability to undertake compliance review.

In this regard, the compliance with the norm must be verifiable (the difficulty of measuring freedom of speech compared to mercury content of discharges into water makes it easier to conceal non-compliance with the former) and the information must be receivable by the relevant institutions. At the same time, the less precise the obligation, the more important the review to clearing up ambiguity and filling in gaps in the normative instrument. [7]

Other factors increase the importance of compliance mechanisms for specific subject areas. In the field of environmental law, compliance review is important because of the risk of irreversibility and potential magnitude of environmental problems, the lack of reciprocity as a tool for enforcing environmental norms, the failure to operationalize state liability and responsibility, and the need for compliance to be precisely measured and quantified.[8]

Targets of the norm

States may find it easier to comply with norms that govern official behavior than with obligations to regulate non-state behavior. States have various direct sanctions available to control the behavior of state agents, from disciplinary measures to dismissal. States may be less willing to comply, however, if the requirements are perceived as undermining governmental power, as in the fields of human rights and arms control. The regulation of non-state behavior is likely to require legislation that prohibits, requires, or regulates the specific conduct. Passage of such legislation may be difficult when the non-state actors play a powerful role in the domestic political arena.

On the other hand, compliance by non-state actors may be easier to achieve when they are part of the drafting process, which is difficult to achieve through traditional law-making processes. Stake-holders who participate in drafting the norms that govern their behavior are more likely to feel a commitment to the norms adopted. While the need for and existence of organized non-state participation is important, it appears from hard law studies that decentralization does not necessarily affect compliance. Among the questions addressed in the study are the relationship between negotiations (the reasons for recourse to soft law) and compliance and the extent to which concern with compliance drives both the form and the content of the norm.

The impact or incentives and disincentives, which make a difference to compliance, will depend on the subject areas and different results may be expected at different points in time. Soft law may be used precisely because compliance is expected to be difficult; it begins a dynamic process over time that may lead to hard law or the norm may remain soft at the international level but become hard law internally.

Author: Dinah Shelton

The Challenge of Soft Law and Arbitration

The arbitration’s “non-national instruments” are the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural soft law has accelerated during the past half-dozen years. The International Bar Association (IBA) has revised its rules on evidence1 and issued conflicts-of-interest guidelines. New American Arbitration Association ethics guidelines retreat from the longstanding AAA practice of partisan party-nominated arbitrators. UNCITRAL put out Notes on Organizing Arbitral Proceedings. And this past autumn the American College of Commercial Arbitrators debated a compendium of “Best Practices” for business arbitration.

In some cases, the compromise reached in such principles may be helpful, while less so in other instances. But in almost all cases, these guidelines will have far-reaching effects, notwithstanding that they are non-binding on their face. During heated procedural debates they will be cited faute de mieux, for lack of anything better. The IBA Guidelines on Conflicts of Interest—with their red, orange and green lists of illustrations indicating varying levels of arbitrator disqualification—have been contested precisely because they will in fact affect arbitrator nominations as they enter the canon of sacred writings cited when an arbitrator’s independence is contested.6

While the increase in such guidelines is beyond cavil, it is less clear whether the trend is a healthy one. Simply put, soft law serves as a constraint on arbitral autonomy. Any regulatory instrument will limit “flexibility” and “discretion”—those hallowed words that can trigger genuflection in even the most impious of arbitrators.

In a issue of Cahiers de l’arbitrage, the eminent Paris avocat Serge Lazareff likened procedural soft law to a loathsome skin disease, using the provocatively pejorative label le prurit réglementaire (“regulatory pruritus”). Serge began with a hypothetical conversation (at least I hope it was hypothetical) in which a lawyer at a hearing asks the Tribunal chairman for a pause in the testimony so he can relieve himself. “Monsieur le Président, puis-je aller aux toilettes?” “Mr. Chairman, can I visit to the WC?” The response is a resounding negative (“Non, mon cher Maître”) bolstered by citation to provisions of the Code of Conduct for Arbitral Hearings that stipulates precise numbers of bathroom breaks in function of the length of hearings.

Soft Law and the Arbitral Process

There is certainly food for thought in our Gallic colleague’s whimsical scenario attacking excessive procedural guidelines. As Talleyrand reportedly observed, anything excessive becomes insignificant: “tout ce qui est excessif devient insignificant”. Yet a more nuanced view might see procedural soft law as enhancing arbitration’s integrity. Modern arbitration is either blessed or plagued, depending on perspective, with a lack of fixed standards related to how arbitrators conduct proceedings. Little “hard law” exists with respect to how the specifics of how an arbitral tribunal should gather evidence and hear argument in its effort to determine the facts, interpret the contract, and apply the law governing the parties’ dispute.

As in other areas, the devil is in the detail. How should the case in chief be presented: written statement? Oral testimony? Both written and oral? What objections justify excluding an exhibit? What degree of relevance justifies an order to produce documents? What sanctions should be imposed for refusal to comply with a discovery order? Battlegrounds are plentiful: the process for proving applicable law; time allocation among the litigants; issue preclusion; avoiding “trial by ambush;” fixing the proper role for legal authority; and even what to do if an arbitrator is abducted.

In arbitration, fairness requires some measure of efficiency, since justice too long delayed becomes justice denied. Likewise, without fairness an arbitral proceeding would hardly be efficient, since it would fail to deliver a key element of the desired product: a sense that justice had been respected. A chef who aimed to provide fine dining might fail either by making customers wait too long or by serving junk food instead of a gourmet meal.7

Discussion of these competing goals brings to mind a conversation many years ago with the secretary general of a prominent arbitral institution. He was being interviewed following his retirement after a long career during which his organization had seen a marked increase in caseload and prestige. When asked what he considered to be his most important achievement, the eminent elder statesman replied without a moment’s hesitation: “Why, the greatest success was taking a process that had been quick and cheap and turning it into one that is now long and expensive. Enfin! At last we are respected.”

The point, of course, was that business managers who complain about too much legal procedure also object to too little. Procedural formality is often another term for due process.

The potential benefit of procedural soft law is that it can enhance the type of fairness business managers expect in dispute resolution, helping to strike the right equilibrium between fairness and efficiency. Arbitration is neither trial by combat nor a random process such as consulting the entrails of a chicken. Rather, arbitration implies respect for a bundle of rights often called due process, which the British sometimes label as natural justice. Once summarized as “the duty to hear before condemning,”8 due process lies at the core of what litigants seek in both arbitration and litigation.

Like other elastic notions such as justice and equity, the term “due process” has no sacramental value in itself, but takes meaning from usage. Since one person’s delay is often another’s due process, notions of arbitral fairness evolve as they are incarnated into flesh and blood responses to specific problems, whose merit often depends on culturally conditioned baseline expectations. A lawyer from New York might say that fundamental fairness requires the respondent to produce certain documents even if adverse to its defense, while a lawyer from Paris or Geneva, used to a quite different legal system, would reply that the claimant should have thought about its proof before filing the claim.

Author: Unknown

Federal or State Law Explained

Soft Law

Embracing mainstream international law, this section on soft law explores the context, history and effect of the area of the law covered here.

Soft Law in International Economic Law

This section provides an overview of soft law within the legal context of Sources of Law in international economic law .

Resources

Further Reading

  • Chris Brummer, “Soft Law in International Economic Law,” Elgar Encyclopedia of International Economic Law, Cheltenham Glos (United Kingdom), Northampton, MA (United States)

Resources

Further Reading

  • The entry “soft law” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

Resources

Notes

  1. See Jacobson, H.K., and Brown Weiss, E., supra note 5; Brown Weiss, E., and Jacobson, H.K., Engaging Countries: Strengthening Compliance with Environmental Accords (1998)
  2. Young, O., Compliance and Public Authority: A Theory with International Applications (1979) 23. ‘Rules constitute an essential feature of bureaucracies and . . . routinized compliance with rules is a deeply ingrained norm among bureaucrats.’ Ibid. at 39.
  3. See Kratochwil, F.V., Rules, Norms and Decisions (1989), 15, 95–129.
  4. Parker, R.W., Choosing Norms to Promote Compliance and Effectiveness: The Case for International Environmental Benchmark Standards (unpublished paper on file).
  5. See Mitchell, R.B., ‘Regime Design Matters: Intentional Oil Pollution and Treaty Compliance’ (1994) 48 Int. Org. 425.
  6. Fleischhauer, C.A., ‘Inducing Compliance’, in I United Nations Legal Order 231, 236 (Schachter, O. & Joyner, C., eds. 1995.
  7. See Charpentier, J., ‘Le contrôle par les organisations internationales de l’exécution des obligations des états’, in 182 R.C.A.D.I. [1983–IV] 172. See also Imperiali, C. (ed.), L’Effectivité du droit international de l’environnement: Contrôle de la mise en œuvre des conventions internationales(1998); Sands, P., The Effectiveness of International Environmental Agreements: A Survey of Existing Legal Instruments (1992); Wolfrum, R., Means of Ensuring Compliance with and Enforcement of International Environmental Law (1998) 272 RCADI.
  8. Lang, W., ‘Compliance Control in International Environmental Law: Institutional Necessities’ (1996) 56 Heidelberg J. Int’l L. (ZaöRV) 685.

See Also

  • Soft Law
  • Comparative law

References