Knowledge

Soft law

Source 📝

219:" 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 231:. 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. 267:
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.
270:
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
257:
law. Soft law is also important in human resource management related matters such as gender equality, diversity and other topics (health and safety for instance). In social matters, so-called 'binding' legislations often leave considerable room for discretion and interpretation, whereas sometimes,
266:
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.
206:
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
207:
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.
472:, "The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics", paper at a Workshop jointly organized by the German Ministry of Foreign Affairs and the German UNESCO Commission, Berlin, 15 February 2007. Available at: 426:
Klarsfeld, A., & Delpuech, C. (2008). La RSE au-delà de l'opposition entre volontarisme et contrainte: l'apport de la théorie de la régulation sociale et de la théorie néo-institutionnelle. Revue de l’organisation responsable, 3(1),
25:
refers to quasi-legal instruments (like recommendations or guidelines) which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law. Soft law is often contrasted with
226:
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
185:
The conventions of the Council of Europe are also legally binding for those countries which choose to ratify them, but countries are not forced to ratify them. The resolutions and recommendations of the
611: 249:
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
156:
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
89:
The common thread between these different types of soft law instruments is that they lack a legally binding force and they are voluntary, and therefore do not include sanctions.
129:
intends to use its powers and perform its tasks within its area of competence. The legal basis for the adoption of soft law by the European Union is found in Art 288 of the
55:
The definition or form of soft law depends on the legal context. In essence, a domestic soft law will look and act differently than an EU or international soft law.
125:. In the area of law of the European Union, soft law instruments are often used to aid with the implementation or interpretation of EU law, or to indicate how the 597: 523: 191: 130: 113:", "codes of conduct", "guidelines", "communications" etc. While, in the EU, soft law can be adopted by several bodies – like the 161:
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
146:"To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. 215:
Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "
314: 284: 151:
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
612:‘Improving the Accountability of Corporations for Violations of International Humanitarian Law through Soft Law Instruments ’ 102: 579: 138: 403: 438: 309: 246: 134: 110: 530:, "We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law," 25 235: 118: 114: 71:
Elements such as statements, principles, code of practice etc.; often found as part of framework treaties;
228: 175: 79: 182:
are legally binding, the Union may also adopt recommendations and opinions which hold no binding force.
632: 627: 250: 179: 541: 598:‘Soft Law and Sanctions: Economic Policy Co-ordination and Reform of the Stability and Growth Pact’ 292: 254: 582:, "Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance, 93 506: 637: 8: 485:
C M Chinkin "The Challenge of Soft Law: Development and Change in International Law", 38
234:
Another useful aspect of the nature of soft law is that it often can be used to evidence
126: 122: 66: 493:
Christians, Allison (Summer 2007). "Hard Law & Soft Law in International Taxation".
575: 560: 514: 335: 520: 502: 409: 399: 374: 187: 35: 446: 366: 288: 258:'soft law' instruments can be imposed by powerful stakeholders on their suppliers. 565: 545: 527: 469: 304: 451: 58:
In the context of international law, the term 'soft law' covers such elements as
272: 106: 38:, although more recently it has been transferred to other branches of domestic 605:
European Competition Soft Law in European Courts: A Matter of Hard Principles?
621: 478:
Alan Boyle, "Some Reflections on the Relationship of Treaties and Soft Law",
378: 413: 370: 354: 568:, "Soft Law as Delegation, 32 Fordham Int'l L.J. 888 (2009), available at 548:, "International Soft Law," 2 J. Legal Analysis 171 (2010), available at 393: 220: 75: 604: 590: 569: 549: 535: 216: 27: 473: 239: 101:
is also often used to describe various kinds of quasi-legal
92: 39: 194:, but are not legally binding for the 47 member states. 167:
Recommendations and opinions shall have no binding force
287:
are mostly governed by soft law based on advice by the
443:
Forensic Science Evidence and Expert Witness Testimony
131:
Treaty on the Functioning of the European Union (TFEU)
190:
are also soft law. These represent the views of the
561:
http://ejil.oxfordjournals.org/cgi/reprint/10/3/499
285:
the admissibility of expert evidence in English Law
121: – the most common actor in this area is the 555:Hartmut Hillgenberg, "A Fresh Look at Soft Law", 245:Soft law has been very important in the field of 619: 271:future upcoming contentious challenges such as 192:Parliamentary Assembly of the Council of Europe 517:, "Asian Journal of International Law", 1–18. 174:The Article states that while European Union 480:International and Comparative Law Quarterly, 559:1999, n° 3, p. 499-515. Available at: 487:International and Comparative Law Quarterly 439:"Making sense of forensic science evidence" 261: 492: 336:"Why does Soft Law have any Power anyway?" 283:Roberts argues that decisions surrounding 450: 202:In international law, the terminology of 137:that the Union may adopt to exercise its 65:Most Resolutions and Declarations of the 515:Why does Soft Law have any Power anyway? 352: 93:European Union and the Council of Europe 436: 359:The American Journal of Comparative Law 16:Legal concept of non-bonding principles 620: 557:European Journal of International Law, 391: 333: 315:International human rights instruments 607:(2008) 14(6) European Law Journal 753 482:1999, vol. 48, n° 4, p. 901–913. 45: 34:initially emerged in the context of 495:Wisconsin International Law Journal 13: 463: 395:Soft law in European Community law 340:Asian Journal of International Law 14: 649: 591:https://ssrn.com/abstract=1426123 570:https://ssrn.com/abstract=1214422 550:https://ssrn.com/abstract=1353444 310:Recommendation (European Union) 247:international environmental law 474:http://www.unesco.de/1507.html 430: 420: 385: 346: 327: 238:on applying or interpreting a 133:which describes the different 1: 534:335–368 (2012), available at 320: 50: 437:Roberts, Paul (2018-11-30). 85:Other non-treaty obligations 7: 452:10.4337/9781788111034.00008 298: 278: 229:customary international law 80:Financial Action Task Force 74:Action plans (for example, 10: 654: 353:Robilant, Anna Di (2006). 251:international economic law 210: 586:(forthcoming Jan. 2009), 355:"Genealogies of Soft Law" 197: 293:professional association 262:Using care with reliance 255:sustainable development 596:D Hodson and I Maher, 392:Senden, Linda (2004). 172: 371:10.1093/ajcl/54.3.499 143: 584:Minnesota Law Review 532:Leiden J. Int'l Law 513:Druzin, B. (2016). 334:Druzin, B. (2016). 127:European Commission 123:European Commission 67:UN General Assembly 600:(2004) 11 JEPP 798 576:Gregory C. Shaffer 526:2011-10-20 at the 253:and international 103:policy instruments 633:Philosophy of law 628:International law 521:Matthias Goldmann 223:in the meantime. 188:Council of Europe 115:Council of the EU 82:Recommendations); 46:International law 36:international law 645: 566:Timothy L. Meyer 546:Timothy L. Meyer 542:Andrew T. Guzman 510: 457: 456: 454: 434: 428: 424: 418: 417: 398:. Oxford: Hart. 389: 383: 382: 350: 344: 343: 331: 289:Judicial College 653: 652: 648: 647: 646: 644: 643: 642: 618: 617: 610:Régis Bismuth, 580:Mark A. Pollack 528:Wayback Machine 470:Roberto Andorno 466: 464:Further reading 461: 460: 435: 431: 425: 421: 406: 390: 386: 351: 347: 332: 328: 323: 305:Legal certainty 301: 281: 264: 213: 200: 95: 53: 48: 17: 12: 11: 5: 651: 641: 640: 635: 630: 616: 615: 608: 601: 594: 573: 563: 553: 539: 518: 511: 490: 483: 476: 465: 462: 459: 458: 429: 419: 404: 384: 365:(3): 499–554. 345: 325: 324: 322: 319: 318: 317: 312: 307: 300: 297: 280: 277: 273:climate change 263: 260: 212: 209: 199: 196: 111:recommendation 107:European Union 94: 91: 87: 86: 83: 72: 69: 52: 49: 47: 44: 15: 9: 6: 4: 3: 2: 650: 639: 636: 634: 631: 629: 626: 625: 623: 613: 609: 606: 602: 599: 595: 592: 589: 585: 581: 577: 574: 571: 567: 564: 562: 558: 554: 551: 547: 543: 540: 537: 533: 529: 525: 522: 519: 516: 512: 508: 504: 500: 496: 491: 488: 484: 481: 477: 475: 471: 468: 467: 453: 448: 444: 440: 433: 423: 415: 411: 407: 405:1-84113-432-5 401: 397: 396: 388: 380: 376: 372: 368: 364: 360: 356: 349: 341: 337: 330: 326: 316: 313: 311: 308: 306: 303: 302: 296: 294: 290: 286: 276: 274: 268: 259: 256: 252: 248: 243: 241: 237: 232: 230: 224: 222: 218: 208: 205: 195: 193: 189: 183: 181: 177: 171: 170: 168: 163: 162: 158: 157: 153: 152: 148: 147: 142: 140: 136: 135:EU legal acts 132: 128: 124: 120: 116: 112: 108: 104: 100: 90: 84: 81: 77: 73: 70: 68: 64: 63: 62: 61: 56: 43: 41: 37: 33: 29: 24: 23: 588:available at 587: 583: 556: 531: 498: 494: 486: 479: 442: 432: 422: 394: 387: 362: 358: 348: 339: 329: 291:and various 282: 269: 265: 244: 236:opinio juris 233: 225: 214: 203: 201: 184: 173: 166: 165: 164: 160: 159: 155: 154: 150: 149: 145: 144: 98: 96: 88: 59: 57: 54: 31: 21: 20: 18: 638:Law by type 603:OA Stefan, 176:regulations 139:competences 30:. The term 622:Categories 489:850 (1989) 321:References 221:good faith 180:directives 51:Definition 445:: 27–70. 379:0002-919X 97:The term 76:Agenda 21 42:as well. 19:The term 524:Archived 414:56437178 299:See also 279:Examples 217:hard law 204:soft law 119:agencies 99:soft law 32:soft law 28:hard law 22:soft law 211:Utility 105:of the 614:(2010) 578:& 544:& 507:988782 505:  427:53–64. 412:  402:  377:  240:treaty 198:Status 501:(2). 536:SSRN 503:SSRN 410:OCLC 400:ISBN 375:ISSN 447:doi 367:doi 178:or 117:or 109:: " 40:law 624:: 499:25 497:. 441:. 408:. 373:. 363:54 361:. 357:. 338:. 295:. 275:. 242:. 169:." 141:: 78:, 593:. 572:. 552:. 538:. 509:. 455:. 449:: 416:. 381:. 369:: 342:. 60::

Index

hard law
international law
law
UN General Assembly
Agenda 21
Financial Action Task Force
policy instruments
European Union
recommendation
Council of the EU
agencies
European Commission
European Commission
Treaty on the Functioning of the European Union (TFEU)
EU legal acts
competences
regulations
directives
Council of Europe
Parliamentary Assembly of the Council of Europe
hard law
good faith
customary international law
opinio juris
treaty
international environmental law
international economic law
sustainable development
climate change
the admissibility of expert evidence in English Law

Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.