Soft Law

by

Teresa Fajardo

• LAST REVIEWED: 02 November 2017
• LAST MODIFIED: 30 January 2014
• DOI: 10.1093/obo/9780199796953-0040

Introduction

The generic term soft law covers a wide range of instruments of different nature and functions that make it very difficult to contain it within a single formula. Its only common feature is that it is in written form, but the other characteristics are variable and negotiable and they constitute an “infinite variety.” So the term encompasses soft rules that are included in treaties, nonbinding or voluntary resolutions, recommendations, codes of conduct, and standards. A good definition of soft law is difficult to find since this term has been the subject of passionate debates between those denying the existence of such law and those who consider it as a new quasi source of international law, and those who study the concept frequently demand that authors embrace one position or the other. Briefly, it can be defined as “normative provisions contained in non-binding texts” (Shelton 2000, p. 292; cited under General Overviews). Moreover, it covers those weak provisions of international agreements not entailing obligations. Soft law appeared at a time when positivist theories were compelled to confront the regulation of new legal issues that formerly belonged to the domaine reserve. Since then the academy has revisited the sources of international law in considering soft law as a source that questions the canonical basis of international law, thus breaking the ideal of hard legalization and introducing different degrees of normative intensity. Soft law has triggered doctrinal debates on the difference between it and hard law rooted in positions adopted on the basis of the foundations or sources of international law or the process of lawmaking. Some authors rely on a binary distinction between legal and nonlegal rules, while others choose the idea of graduated normativity or continuum or the existence of a penumbra in which soft law has its being. Soft law instruments can even be adopted by new actors involved in the processes of informal international lawmaking with different degrees of authority, as the new unacknowledged legislators of the world. Soft law also has different functions covering the inception of law and the interpretation and adaptation of hard law, and it is found in the delegation of functions conferred on international organs charged with developing international law. Softness has even found its way into legal institutions and international organizations, endowing them with soft responsibility and soft instruments of monitoring and enforcement. In light of these comments and despite its critics, soft law is here to stay.

General Overviews

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: 10.1162/002081800551280

  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/29.4.549

  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.

  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.

  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: 10.1163/15718109620294889

  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/9780199658589.001.0001

  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.

  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: 10.2307/2201073

  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.