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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.

International law[edit]

Definition of soft law[edit]

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

  • Most Resolutions and Declarations of the UN General Assembly
  • 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[edit]

The term "soft law" is also often used to describe various kinds of quasi-legal instruments of the European Union: "codes of conduct", "guidelines", "communications" etc. In the area of law of the European Union, 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[edit]

In international law, the terminology of "soft law" remains relatively controversial because there are some international practitioners who 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[edit]

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[edit]

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.

Further sources[edit]


Original courtesy of Wikipedia: http://en.wikipedia.org/wiki/Soft_law — Please support Wikipedia.
This page uses Creative Commons Licensed content from Wikipedia. A portion of the proceeds from advertising on Digplanet goes to supporting Wikipedia.

69 news items

Breitbart News

Breitbart News
Fri, 25 Jul 2014 06:30:00 -0700

The EU Commission set up the OMC as a “form of soft law, a process of policymaking which does not lead to binding EU legislative measures nor require Member States to change their law. (OMC) aims to spread best practices and achieve greater ...
 
Out-Law.com
Mon, 14 Jul 2014 03:18:34 -0700

If a full law reform project goes ahead, it plans to consider the potential for 'soft law' codes of practice, advice and guidance, training of staff and ways of sharing data management best practice alongside legislative proposals. In its report, the ...

The Guardian (blog)

The Guardian (blog)
Tue, 22 Jul 2014 06:17:33 -0700

Third, how to accelerate GRI reporting from "soft law" to "hard law" through integration in government policy, law and regulation. Fourth, how to more closely and constructively collaborate with kindred disclosure initiatives to address market fatigue ...
 
OUPblog (blog)
Mon, 14 Jul 2014 01:34:48 -0700

This accounts for the persistence of the United Nations in the holding of major conferences or summits––much derided in some quarters––which have produced soft law Declarations on the environment, human rights, advancement of women and a panoply of ...
 
Nuclear Engineering
Wed, 16 Jul 2014 03:30:00 -0700

Where the industry has been very good internationally at 'soft law', for example setting safety standards, adhering to them and self-policing, enacting the 'hard law' necessary to give full effect to the compensation principles has proved elusive. It ...
 
International Financial Law Review
Wed, 09 Jul 2014 03:29:55 -0700

Greater detail will also minimise the possibility of unexpected soft law. Some regulators note that when powers are transferred from one authority to another, guidance and exchanges often become more structured. And Guill does not expect any soft law ...
 
The Conversation
Fri, 04 Jul 2014 05:48:09 -0700

Yet it is being used by known rights abusers to produce “soft law” that allows them to erode fundamental rights. Rather than protecting individuals, countries like Russia, Egypt and Venezuela (to name but a few) are using the Council to advance their ...
 
DeHavilland (press release) (subscription)
Thu, 24 Jul 2014 06:41:15 -0700

Q88 Chair: I will simply say order order, which means that our proceedings are now officially underway. I would like to thank you, Marco Gasparinetti, for your presence. We only now have a short space of time but we believe that our inquiry into air ...
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