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
• Elements such as statements, principles, code of practice etc.; often found as part of framework treaties;
• Action plans (for example, Agenda 21, Financial Action Task Force Recommendations);
• Other non-treaty obligations

The term "soft law" is also often used to describe various kinds of quasi-legal policy instruments of the European Union: "recommendation", "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. The resolutions and recommendations of the Council of Europe are also soft law. These represent the views of the Parliamentary Assembly of the Council of Europe, but are not legally binding for the 47 member states.

By contrast, the European Union regulations or directives are legally binding. 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.

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.

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 economic law and international sustainable development 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, 'soft law' instruments can be imposed by powerful stakeholders on their suppliers.[2]