Soft Law and Important Contribution to International Law - Essay Example

Soft Law Name Course Lecture Date Introduction International customs, treaties, general principles of law, judicial decisions and the teachings of highly qualified legal scholars are codified sources of International law. These laws are enumerated in Article 38(1) of the Statute of the International Court of Justice (‘ICJ Statute’) as the sources of international law1. However, this enumeration of sources of international law ignores other models of law that guide the conduct of states. These models of law are not legally binding on states or their binding power is not as clearly set out as traditional law. These sources of international law are referred to as soft law and include the Universal Declaration of Human Rights and other declarations and resolution of the United Nations General Assembly, statements, codes of conducts, principles and codes of practices forming the framework of international treaties, actions plans including Agenda 21, other non-treaty obligation undertaken by states2. This paper discusses begins with a discussion of the definition of soft law noting the there have been no agreement on the definition of soft law. Secondly, the paper expands the definitions of soft law to include the reasons states decided to use soft law instead of hard laws. Reasons for preference of soft law include the lack of sanctions that come with violation of soft law. Thirdly, the paper discusses the evolution of soft law to hard law in an effort to explain the contribution of soft to the formation of hard law. Finally, the paper concludes that soft law just like hard law makes an important contribution to international law and the conduct of states towards other states and their own citizens. What is “soft law” Many definition of soft law exists but their all reach a compromise about the binding force of soft laws. Guzman and Meyer define soft law as a preference rather than an obligation by states to act in a certain way or to refrain from acting in a certain way3. In contrast hard law refers to firm commitment to accept the sanction that come with a breach of the particular law. Therefore, hard law brings about a legal obligation while soft law does not give rise to legal obligations4. Due to the lack of obligation characterised by soft law, it can be referred to as a norm articulated by a group of states, which the states hope will be observed although there is no obligation to adhere by the norm5. One of the traditional approach to the definition of soft law states it is “neither soft law nor hard law: they are simply not law at all”6. In a narrow sense this definition is true as soft laws are not laws at all. Soft law can thus be considered to be the rules of conduct for international actors that are legally non-binding, but at the time of articulation they were meant to have some legal scope7. Parties to such rules do not take responsibility for enforcing them or accept any sanctions for violations of such laws. In most cases, the intensity of adherence of states and other actors to soft laws is not consistent. Some states do not even recognize some of the commonly recognized soft laws. Despite this soft laws do have a significant impact on the conduct of states, individual and international organizations which they are directed towards. According to Guzman and Meyer hard laws are unable to place such obligations on states as their come with associated sanction costs8. While some commentators define soft laws as political commitments that are most likely not to be observed, this definition is to narrow9. Most soft laws impact the conduct of states by their quasi-legal character. These considerations of soft laws as quasi legal instruments brings about the definition of soft laws as a written exchange of promises between states that is not legally binding on the signatories. The Strategic Arms Limitations Treaty (SALT II) is considered an example of a soft law that continues to have significant impact on the conduct of its two signatories; the United States and the Soviet Union. SALT II was signed by the United States but was never ratified by Congress meaning it is not legally binding on the United States10. The United States however agreed to voluntarily observe the treaty as long as the Soviet Union adhered by it11. According to Guzman and Meyer, the most commonly used definition of soft law refers to what “consists of law-like promises or statements that fall short of hard law”. Other definitions of soft law focus on the clarity of obligations created by agreeing to observe a particular law. Abbott and Snidal define soft law as an instruments of law that create imprecise obligation, where compliance can be satisfied by a wide range of activities12. A more comprehensive definition of soft law is made by Guzman and Meyer. They define soft laws as nonbinding instruments or rules that assist interpretation or understanding of binding legal rules, while at the same time bringing expectation that they will influence the future conduct of parties. Contribution of soft laws to the Development of hard law According to the delegation theory soft rules offer nations a chance to experiment with legal rules whose violation cost are low13. If a state decides that the obligations of soft rules are not desirable tomorrow they might decide not to abide by these rules. However, where nations observe that the adherence to soft laws has more benefits they decide to convert the soft laws into hard laws. Having already trialled the laws in their soft form states can be able to better negotiate and renounce existing rules of interpretation. As seen earlier most soft laws are articulated with the intention of having some legal scope. This legal scope anchors the potential of soft laws to evolve into hard laws in the future. According to Abbott and Snidal, soft laws have two distinct ways of evolving into hard laws. First, soft rules provide the principles used to articulate hard laws into treaties and customary law. These principles are already enumerated in recommendations, resolutions and declarations, which are referenced in the treaty-making process. As seen earlier, soft laws are meant to influence the conduct of states and through this influence they may impact the development of customary law. Boyle argues that the fact that soft laws are not legally binding makes them attractive options for negotiations at international summits especially where parties do not wish to make immediate legal commitments14. Parties negotiate in good faith and later agreed to take up legal obligation once the impact of the soft laws has been felt15. For example, Articles 26 of the United Nations Declaration of human rights have had a huge influence on the customary Education legislation of most countries.16 Most countries especially in the developing world have effected legislation that requires parents to take their children to school at a certain age. Most government now provide free basic education to their country’s young ones in accordance with the Article 2617. Initially, most scarce resources nations would have preferred Articles 26 as a soft law as they did not have the economic resources to provide free education. Soft law is therefore a flexible option for the process of making hard laws. Through soft laws states are able to avoid immediate and uncompromising commitment of hard laws. For example, most states would have avoided the United Nations Declaration of human rights if they were required to make an immediate commitment to provide free maternity care as envisioned by Article 2518. This shows soft law is a faster route to creating legal obligation than the direct legislation of International customary law. Since soft law enunciates inspirational goals, it provides a basis for social institutions like civil society and the media to pressure governments towards legislation that may achieve the goals of soft law. Governments have no choice but to react to the pressure by NGO, civil society, the media, courts, corporation and citizens who make frequent reference to soft laws in their quest for law reforms19. Conclusion Soft laws are model of law that are not legally binding on states or their binding power is not as clearly set out as traditional law. Nevertheless, these laws have significant impact on the conduct of states despite their lack of binding power. States prefer soft laws as their violations do not attract any serious sanctions on the state. While soft laws are not legally binding they are designed to have some level of legal scope, thus they are sometimes referred to as quasi-legal instruments. Soft laws make remarkable contribution to the development of hard laws. First, they articulate principles that a referenced in the articulation of hard laws. Secondly, they provide a rallying point for activism that pursues the reformation of domestic customary laws. Therefore, soft laws remain important instrument in the development of both international and local laws. Bibliography Articles/Books/Reports Abbott, Kenneth W., and Duncan Snidal. ‘Hard and soft law in international governance (2000) 54 International organizations 421,456. Boyle, Alan E, ‘Some reflections on the relationship of treaties and soft law’ (1999) 48 The international and comparative law quarterly 901,913. Caswell, Tom, Shelley Henson, Marion Jensen, and David Wiley ‘Open content and open educational resources: Enabling universal education’ (2008) 9 The International Review of Research in Open and Distance Learning 1 Guzman, Andrew T., and Timothy L. Meyer, ‘International soft law’, no. 1 (2010) Journal of Legal Analysis 2, 171-225. Skjærseth, Jon Birger, Olav Schram Stokke, and Jørgen Wettestad ‘Soft law, hard law, and effective implementation of international environmental norms’ (2006) 6 Global Environmental Politics 104,120. Treaties Strategic Arms Limitation Talks (SALT II) The Statute of the International Court of Justice (‘ICJ Statute’), Article 38(1) The Universal Declaration of Human Rights Read More