LECTURE 20 - SOFT LAW Flashcards
The
Problem:
Politics
- There are a great many international issues that
would benefit from agreed rules, laws,
regulations. - Challenge to negotiating international law is
competing political, cultural, and normative
priorities - Presents a major challenge to negotiating
treaties. - Governments are reluctant to commit to even
the most seemingly common sensical
propositions - Legitimate concern about preventing
precedents that could be prejudicial in the
future - Constant effort to jockey for position
The
Solution:
Soft Law
- What is Soft Law
- Non-binding international obligation
- Does not carry same legal weight as a
treaty - An agreement of principles, desired
courses of action, i.e., - Paris Declaration on Aid
Effectiveness - Paris Agreement on Climate
Change - United Nations a major producer of soft
law - United Nations General Assembly
Resolutions - Declarations from UN Conferences
Major
Instrument
s of Soft
Law
- Declarations
- Codes of
Conduct - Agreements
- Commissions
- Memorandum of Understanding
Why Do Governments Turn to Soft
Law?
- Provides additional clarity and predictability of outcomes in areas where negotiating a treaty or hard law
framework unlikely to succeed - Strengthen member-government commitment to agreements
- Much lower decision-making costs
- Governments are not bound to the decision
- Faster to negotiate and implement
- Lack of full legal power means ideas can be ‘tried out’
- Allows for full participation/engagement of non-Government actors
- Non-Governmental Organizations (NGOs)
- Businesses
- International Organizations
- Social Movements
- Individuals
Politics of Soft Law Preference
**Negotiation of Treaties binds actors
* Requires a lot of give and take between participants
* Results in a restraint on sovereignty / autonomy
* All combines to make Treaty negotiation high stakes game
* Rivalries come into play, national prestige
* Issue transference becomes major barrier
* Sets precedents that might get applied to other areas
**Soft law is a way to ‘muddle’ through
* Allows testing of different management strategies for issues
* Lets Governments sign on for action without pressure of compulsion
* Key factor in climate change talks
**Provides additional avenue to quietly consolidate liberal international order
Why the
Wider
Participation Base?
- Explicit inclusion of extra-governmental
expertise - Allows for expert response to changing
circumstances in dynamic policy spaces such
as, - Global health (i.e., COVID-19)
- Cybersecurity
- Management of global commons such as
environment, space - Non-state actors can drive the process
forward - Can be used to get agreements in areas
where governments wont negotiate or
sign treaties
Keys to
Successful
Soft Law
- Genuine commitment by member-
governments to objectives - Agreement that common working
understandings and definitions needed to
guide domestic policy - Central for Inter-American Declaration
on Human - Paris Declaration on Aid Effectiveness
- Millennium Development Goals
- Focusing the instrument on areas key for
policy goals - Environmental and Trade soft law often
focuses on regulating non-state actors - Inter-American Declaration on Human
rights about basic normative agreement
Issue Area Specificity – Examples
**human rights
precursor to binding treaties
* a way to establish a consensus of norms that could later be made binding law
**Environment
* usually subsequent to treaties
* used as a way to flesh out less clearly defined principles in the treaty text
* regionalization in environmental soft law result of geographic realities.
**Arms Control/Disarmament
* hard law sometimes proceeds soft law
* soft law a way to reaffirm norms and to strengthen treaty commitments
* In arms control a network of obligations exists; soft law strengthens and reinforces compliance
**trade/finance
* trade/finance area has low levels of binding law
* dominated by general codes of conduct on such issues as money laundering, financial transfers
* private sector initiated soft law provides means for companies to preempt binding, government regulated law
Compliance
– What
makes a
soft law
work?
- Requires leadership and commitment
from signators - Additional layers of pressure on
signators to comply critical - Space for NGO, private action
here - Three central factors to seeing
compliance with soft law
1) content
2) process; and
3) institutions
1: Compliance: Importance of Content
- Specific obligations work better than vague agreements.
- It appears that norms on common areas are easier to comply with than intrusive, domestic regulations.
- Regulation of state actors is easier than regulation of non-state actors.
- Linkage of subject matter is important, i.e., human rights and security.
- Linking soft law to hard law has also shown to lead to better compliance.
- Reciprocal obligations with options for retaliation improves compliance.
- Norms of abstention are more effective than norms requiring action.
- Value laden factors, such as naming a soft law a “Declaration,” create higher expectations and improve
compliance. - Financial incentives improve compliance.
2: Compliance: Importance of Process
- If more states agree that the problem should be addressed, the better the compliance will be.
- Leadership is an important factor in obtaining compliance.
- The inclusion of regulatory targets is increases compliance.
- The transparency of international soft law increases compliance.
- Compliance: Institutions
- Monitoring and follow up is crucial in
obtaining compliance. - Regional mechanisms tend to work
better than global mechanisms
Advantages of Soft Law
- Consolidates and clarifies
common understandings - Move principles towards
customary status - Reflect agreed
international political
aspirations - Allows innovations that
may not fit with legal
principle of equality
* i.e., Common but differentiated
responsibilities in climate
negotiations - Public participation can
help push frameworks in
new direction
Drawbacks to Soft
Law
Lack of enforcement body can limit effectiveness
Limited role of Courts to enforce, interpret
Depends on implementation and monitoring
provisions in each instrument
Lack of clear institutional frameworks for
implementation, monitoring
No set of agreed procedures for creation of soft law
Wider pool of participants
Do governments listen to NGOs, business, civil
society?
Can allow governments to dodge difficult questions
Look at money laundering, tax evasion
