The Impact of “Soft Law” in International Economic LawBy Andrew Amos Published 6 November, 2016
Soft-law, although not legally binding, is highly influential upon the development of international law. When analysed in relation to International Economic Law (IEL), soft-law has stimulated significant academic debate.
This essay will evaluate the essence of soft-law and its impact upon the development of its counterpart, hard-law. There will be an assessment of soft-law’s potential normative character and the consequences where a state chooses not to abide by it. In part two of this essay, there will be a critical discussion of the merits and demerits of soft-law’s impact in the international arena. In doing so, this will allow for an evaluation of the implications arising from soft-law and how, more importantly, said law impacts upon IEL. It could be suggested that the notion of soft-law is too informal and this could result in ‘a dilution of [its] legal force’. Nevertheless, this essay will ultimately show that despite soft-law posing significant threats to international law’s validity, more often than not litigators’ are required to use it to ‘best support their case’.
Part One: An Overview
Defining between hard- and soft-law – and in other words what is binding – is not straightforward and reference can be made to the Qatar-Bahrain Maritime Delimitation case to show this. Many scholars tend to define between hard- and soft-law by referring to whether or not they are binding. It must be noted, however, that soft-law instruments such as declarations, resolutions and guidelines – despite being non-binding, ‘are intended to have some normative significance’. To stress soft-law’s normative character further, it has been noted that soft-law agreements can amount to binding unilateral obligations.
Soft-law instruments must be clearly distinguished from the hard-law sources defined in Article 38(1). Despite this, it is widely accepted that soft-law refers to certain rules that ‘command respect’. Moreover, although a state is not bound to accept any recommendation, said state should give it due consideration in good faith. Both Gold and Baade have clarified that soft-law tends to have at least one of the following components: vagueness; imprecision; recommendatory language; binding obligations reduced by exceptions; and obligations that are entwined in non-binding instruments. This, however, does not imply that soft-law is by any means unimportant and Gold states that ‘…soft-law expresses a preference and not an obligation that states should act, or should refrain from acting, in a specified manner.’ Therefore, it could be argued that this ‘expressed preference’, otherwise referred to as a norm that states have no obligation to adhere to, is vital to achieve functional cooperation.
Although there is evidence that soft-law is ‘soft’ because of its inevitable ambiguities or lack of transparency, treaties – which are considered legitimate – are more likely to be followed. This sheds light on the extent of soft-law’s impact on IEL. It is not only hard-law, however, that results in consequences should a state not adhere to it and weight should be given to the importance of soft-law in this context. Higgins has clarified this point quite succinctly by stating that: ‘The passing of binding decisions is not the only way in which law development occurs. Legal consequences can also flow from acts which are not, in the formal sense, binding’. It is inevitable that a violation of hard-law will result in greater costs for a state than those violations of soft-law.
Many of the scholarly opinions assembled are readily distilled into a simple but compelling argument: the impact of soft-law on IEL does not only relate to legal consequences, but also those relating to politics. There may be significant pressure upon a party to adhere to agreements and non-fulfilment could be considerably costly. It is this point that represents the sobering truths about soft-law’s impact on IEL. It should be noted, however, that the International Court of Justice, in International Status of South Africa, clarified that it was not their duty to ‘pronounce on political or moral duties’. It may be somewhat obvious that there may be more political consequences given the fact that there is no legal coercion to enter into a soft law agreement; only a political coercion which parties assume de facto responsibility for entering into. On the other hand, it has been argued that if soft agreements result in fewer consequences, ‘states may [eventually] accept harder legalisation’. It is important to note, nevertheless, that many legal scholars do not believe that soft-law is purely political and that it impacts upon states due to its quasi-legal nature.
Part Two: Implications arising from soft law
States have almost complete autonomy in the design and content of their soft-law agreements and this provides a seemingly straightforward advantage. It is apparent from academic discussion that soft-law is desirable because it enables states to use a ‘middle-of-the-road strategy’. In doing so, it means states can find a middle ground where they aren’t engaged in full-blown international law; and are not lacking commitment. Scrutiny surrounding soft-law tends to stem from its absence of clarity. Needless to say, this prevents soft-law from impacting upon IEL to the extent that states may wish. Hillgenberg, citing Lauterpacht, clearly expresses that soft-law agreements are ‘provisions . . . void and inapplicable on account of uncertainty and unresolved discrepancy’. This was reinforced by Qureshi and Ziegler who refer to soft-law as involving ‘convoluted jargon . . . [which] does not promote clarity’.
Nevertheless, international actors may purposely utilise soft-law agreements to deal with uncertainty and to facilitate compromise. Therefore, soft-law is a useful tool to ease bargaining problems amongst heterogeneous states. An advantage of soft-law is that said compromise gives rise to increasing flexibility. Here, states can incorporate these agreements to deal with more challenging issues, ultimately enabling them to finalise the bargain.
Soft-law agreements begin with ‘shallow cooperation’ which states assume will result in ‘deeper cooperation’ in time. With this in mind, if these compromises shape optional protocols then it would not be unreasonable to expect membership of optional protocols to increase as soft-law jurisprudence accrues. Soft-law enables states to interact with one another in a more ambitious manner without the burden of enforcement. Taking a different view, many scholars have recognised the harmony between hard- and soft-law in the sense that they can complement each other. Soft legalisation, therefore, affords a framework where states can alter their agreements should any circumstances change. Soft-law has the potential to ‘lead the way to hard law’ or could elaborate existing law. These compromises alone act as a catalyst for soft-law’s increasing impact on IEL. Conversely, soft-law compromises can make it more difficult to ascertain whether or not a state is being true to its commitments and can also shun opportunity.
It is important at this point to briefly refer to private actors and their influence on soft-law agreements. These actors – otherwise referred to as individuals or private groups – are the actors which hold the greatest responsibility for soft-law agreements. It is widely documented that non-state actors are ‘committed to normative values’. It could be argued that laws concluded under pressure may fail to produce fidelity. This point is significant because soft-law, influenced by non-state actors, may be capable of doing so. Brunnee and Toope have highlighted that soft-law agreements may in fact be more successful at producing fidelity than hard-law itself.
On the other hand, the effect of soft-law, it could be argued, is more apparent than real: some scholars argue that non-state actors are likely to favour hard-law. The reasoning for this stems mainly from non-state actors’ enthusiasm to ensure violation by other parties. Thus, ‘when the risks of opportunism are high and compliance is difficult to monitor’ soft-law agreements become somewhat illusory in effect. Nevertheless, non-state actors can influence soft-law by making representations in political arenas where, in time, it may develop a sense of legal obligation. Moreover, Klabbers believes that there should be a presumption that soft-law is law unless the opposite is proven.
It is often argued amongst scholars that soft-law agreements are a way of regulating state conduct in a more palatable manner than that of its counterpart, hard-law. Weight should be given, however, to the threats posed by soft-law’s attempt to address hard-law’s weaknesses. Soft-law has been criticised for being used as a ‘deliberate device to minimise and cloak firm law’. On the other hand, critics – whilst readily acknowledging soft-law’s weaknesses – tend to believe firmly in hard-law’s more effective means of achieving ‘democracy, rule of law and collective self-determination’. Despite these weaknesses, commentators have acknowledged the importance of soft-law by stating that ‘neither the basis nor the ultimate justification of international law is to be found in the normative system as such. . . [but] it is still necessary for that system to be perceived as a self-contained, self-sufficient world.’
Soft-law is an extremely important aspect of international law and can be seen to impact upon IEL significantly. These non-treaty agreements act as independent instruments which allow states to regulate behaviour in the absence of a treaty. The many scholarly opinions which argue between hard- and soft-law provide a sobering illustration that international law and international politics do not run independently of one another. Despite the fact that many believe that soft-law aims to cloak the impact of hard-law, it is safe to say that soft-law prevents hard-law from dominating the international arena. Therefore, soft-law, and its normative character, provides a stepping-stone to hard-law and, in doing so, contributes to the shaping of international politics.
With this in mind, non-binding soft-law agreements enable states to recognise the value of their commitments by lessening the legal consequences in the occurrence of unpreventable violations. Although states are sometimes reluctant to envisage the benefits of hard-law, because of the inevitable legal consequences imposed upon violation, soft-law poses as an attractive alternative. Soft-law assists states in their ability to choose the design and content of their agreements and is significantly more subjective than its counterpart hard-law. This is a significant, if not the most significant distinction between the two. Such agreements, it is argued, provide a basis for states to handle the more delicate problems associated with their conduct and international relations.
Soft-law has the ability to produce fidelity and, when influenced by non-state actors, eases bargaining problems amongst heterogeneous states. It is clear that soft-law allows said states to reach a compromise between themselves and also between private actors. It is because of this compromise that the exigencies of uncertainty can be more readily dealt with through soft-law than could be said for hard-law. Soft law is a fundamental aspect of IEL and, needless to say, is vital to achieve functional cooperation.
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