SOFT LAW V. HARD LAW

The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law, often contrasted with soft law by being referred to as "hard law". Traditionally, the term "soft law" is associated with international law, although more recently it has been transferred to other branches of domestic law as well.

Definition of soft law

In the context of international law, the term "soft law" covers such elements as:

• Most Resolutions and Declarations of the UN General Assembly, for example, the Universal Declaration of Human Rights;
• Elements such as statements, principles, codes of conduct, codes of practice etc.; often found as part of framework treaties;
• Action plans (for example, Agenda 21);
• Other non-treaty obligations

European community

The term "soft law" is also often used to describe various kinds of quasi-legal instruments of the European Communities: "codes of conduct", "guidelines", "communications" etc. In the area of law of the European Communities, soft law instruments are often used to indicate how the European Commission intends to use its powers and perform its tasks within its area of competence.

Status of soft law

In international law, the terminology of "soft law" remains relatively controversial because there are some international practitioners do not accept its existence and for others, there is quite some confusion as to its status in the realm of law. However, for most international practitioners, development of soft law instruments is an accepted part of the compromises required when undertaking daily work within the international legal system, where states are often reluctant to sign up to too many commitments that might result in national resentment at over-committing to an international goal.

Utility of soft law

Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "hard law" in the future. This "hardening" of soft law may happen in two different ways. One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law. Soft law is a convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments at a certain point in time for political and/or economic reasons but still wish to negotiate something in good faith in the meantime.

Soft law is also viewed as a flexible option - it avoids the immediate and uncompromising commitment made under treaties and it also is considered to be potentially a faster route to legal commitments than the slow pace of customary international law. With the passage of time, in today's globalized society it is easy to use the media and the internet to spread the knowledge of the content of declarations and commitments made at international conferences. In doing so, these aspirational non-commitments often capture the imagination of citizens who begin to believe in these soft law instruments as if they were legal instruments. In turn, it is felt that this ultimately impacts governments who are forced to take into account the wishes of citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft law instruments so frequently and with such import that they begin to evidence legal norms.

Another useful aspect of the nature of soft law is that it often can be used to evidence opinio juris on applying or interpreting a treaty.

Soft law has been very important in the field of international environmental law where states have been reluctant to commit to many environmental initiatives when trying to balance the environment against economic and social goals. It is also important in the field of international economics law and international sustainable development law.

Using care with reliance on soft law

Soft law is attractive because it often contains aspirational goals that aim for the best of possible scenarios. However, the language in many soft law documents can be contradictory, uncoordinated with existing legal commitments and potentially duplicative of existing legal or policy processes. Another key point is that negotiating parties are not blind to the potential lying in stealth in soft law. If a negotiating party feels that soft law has a potential to turn into something binding down the track, this will negatively influence the negotiation process, and soft law instruments will be watered down and hemmed in by so many restrictions that there is little point in creating them.

Nevertheless, the reliance on soft law continues and it is unlikely that its use will fade; it is far more likely to be relied on in greater amounts as it also serves as a "testing ground" for new, innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change.