Jun 19, 2008
Learn what the terms "soft law" and "hard law" mean:
Soft law means commitments made by negotiating parties that are legally binding.
Hard law means binding laws. To constitute law, a rule, instrument or decision must be authoritative and prescriptive. In international law, hard law includes treaties or international agreements, as well as customary laws. These instruments result in legally enforceable commitments for countries (states) and other international subjects.
Familiarize yourself with the types of legal instruments that make up "hard law" in the context of the international legal system:
Treaties (also known as conventions or international agreements)
Security Council Resolutions
Customary international rules
Familiarize yourself with the types of instruments that tend to be soft law instruments:
Most UN General Assembly Resolutions and Declarations )
Statements, principles, objectives, declarations of principles
Be aware that while soft law is not binding in a legal sense, soft law instruments do carry some authority. Soft law instruments are negotiated in good faith by the negotiating parties who hold some expectation that the non-binding commitments will be met as much as reasonably possible. It is important to note that soft law statements often contain aspirational language that inspires reliance on them to improve policy-making in areas such as the environment, sustainable development and human rights.
Realize that soft law can evolve into hard law. An important role of soft law instruments is their ability to influence the future development of hard law commitments. When analyzing international law soft law instruments, keep in mind how this useful and innovative aspect of soft law can be a bridge between no commitments and legally binding commitments.
It is helpful to refer to Article 38 of the Statute of the International Court of Justice to see which sources of law are considered to form binding international law: treaties, custom and the general principles of international law. Also there are the two subsidiary "sources": judicial decisions and the writings of highly qualified publicists.
The General Assembly resolutions are often mistakenly considered binding. Resolutions that relate to "housekeeping" within the internal organization of the General Assembly are binding on members of the Assembly but other resolutions are not legally binding . What is important is to examine whether or not such resolutions have legal effects arising from the subject matter or from the way they are drafted. Some countries do not agree that any legal interpretations arise out of UN GA resolutions, preferring to view them as political aspirations; other countries, however, find some UN resolutions to be authoritative interpretations of the UN Charter. It is complicated and you should do a lot of research!
While soft law is also creeping into domestic law, this article is only concerned with international law.
Remember that the term "hard law" is only used in contrast to "soft law". Don't walk around calling yourself a "hard law" lawyer. But nobody will mind if you call yourself a hard lawyer... you may not win friends but that is up to you!
Be aware that soft law is contentious for some international legal practitioners who do not like the term "law" being used for non-legally binding commitments. Yet, there are good reasons for it being called soft law, so the term endures. Most importantly, soft law commitments influence the creation of hard law over time and soft law instruments will often fill a policy gap while policy parameters are still being worked through.
Posted by Jane at Thursday, June 19, 2008 |