Why Is Soft Law Really Law

Another useful aspect of the nature of soft law is that it can often be used to prove opinio juris on the application or interpretation of a contract. Professor Dinah Shelton shared the results of a three-year project on non-binding international law, which she led for the American Society of International Law (ASIL). Non-binding laws are non-legally binding instruments used for a variety of reasons, including strengthening members` commitment to agreements, confirming international standards, and creating a legal basis for subsequent treaties. By examining the effectiveness of soft law mechanisms in various thematic areas, the ASIL project aims to answer a broader question of international law: is it possible to achieve an equal, if not better, level of compliance with both non-binding and binding law? Soft law is attractive because it often contains ambitious objectives aimed at the best possible scenarios. However, the language of many soft law documents can be contradictory, uncoordinated with existing legal obligations, and potentially duplicate existing legal or policy processes. Another important point is that the negotiating parties are not blind to the potential of sliding soft law. If a negotiating party believes that soft law has the potential to turn into something binding, this will negatively affect the negotiation process, and soft law instruments will be watered down and limited by so many restrictions that it makes little sense to create them. In international law, the terminology of „soft law“ remains relatively controversial because some international practitioners do not accept its existence, and for others, there is some confusion as to its status in the field of law. However, for most international practitioners, the development of soft law instruments is an accepted part of the compromises required during day-to-day work within the international legal system, where States are often reluctant to make too many commitments that could lead to national resentment if they commit too much to an international goal.

Soft law instruments are generally regarded as non-binding agreements, which nevertheless have great potential for conversion to „hard law“ in the future. This „hardening“ of the flexible law can be done in two different ways. One of them is when declarations, recommendations, etc. are the first step towards a contract conclusion process that refers to the principles already set out in non-binding law instruments. Another possibility is that non-treaty agreements are intended to have a direct impact on State practice, and to the extent that they do so successfully, they can lead to the creation of customary law. Soft law is a practical option for negotiations that might otherwise stagnate if legally binding commitments were sought at a time when it is not convenient for the negotiating parties, for political and/or economic reasons, to make significant commitments at some point, but still want to negotiate something in good faith in the meantime. Professor Shelton began her lecture by exploring the increasing complexity of the international system. The number and type of actors has increased in the world.

The international system is no longer solely determined by States, but also influenced by international intergovernmental organizations, non-governmental organizations, professional associations and transnational corporations. In addition to this growing diversity of actors, there is also a variety of international legal norms, some of which have taken the form of flexible law. In response to these developments, the ASIL project addressed three interrelated issues: (1) the nature and characteristics of international law; (2) how to understand and measure respect for international law; (3) How to assess the nature and importance of soft law in the international legal system? * Trade/Finance In order to facilitate free trade, the trade/finance sector has the least restrictive right of all the areas examined. There are general codes of conduct on issues such as money laundering. Private sector-initiated soft law, such as the Sullivan and McBride principles, offers companies the opportunity to pre-empt a law that is binding and regulated by the government. Themes The different topics also had an impact on the scope and content of soft law instruments. The four areas studied used soft law, but to varying degrees and for different purposes. Thirdly, geographical and cultural factors have largely determined the form and function of the various instruments of non-binding law. Agreements adopted by regional institutions such as the OSCE or the OAS have been influenced and shaped by factors other than agreements adopted at the global level by institutions such as the United Nations.

Professor Shelton highlighted the common characteristics of the soft law instruments studied. The term „soft law“ is also often used to describe different types of EU quasi-legal policy instruments: „recommendation“, „codes of conduct“, „guidelines“, „communications“, etc. In the field of EU law, non-binding legal instruments are often used to indicate how the European Commission intends to exercise its powers and carry out its tasks in its area of competence. Council of Europe resolutions and recommendations are also non-binding laws. These represent the views of the Parliamentary Assembly of the Council of Europe, but are not legally binding on the 47 member states. * Arms control/disarmament In the field of arms control/disarmament, hard law sometimes takes precedence over soft law. Soft law is a means of reaffirming standards and strengthening the obligation of treaty members to comply with a particular treaty, which in turn puts increased pressure on members who have not ratified or complied with a binding agreement. Soft law is therefore often linked to hard law in arms control. There is a network of obligations in these special contracts, as soft law strengthens and enhances compliance. Second, the different types of actors – and their motivations – involved in the thematic areas have influenced the creation of soft law mechanisms.

For example, international agreements in the areas of environment and trade focused mainly on the regulation of non-State actors. Professor Shelton highlighted some case studies that illustrated the different motives behind the application of soft law: * Human rights In the field of human rights, soft law has been used mainly as a precursor to binding treaties. Soft law was seen as a means of establishing a consensus of norms among the members of an agreement that could then be codified by binding law. Soft law has been very important in the area of international environmental law, where States are reluctant to engage in many environmental initiatives when trying to balance the environment with economic and social objectives. It is also important in the field of international economic law and international sustainable development law. Soft law is also important when it comes to human resources management such as gender equality, diversity and other issues (e.B. health and safety). In the social field, so-called „binding“ legislation often leaves considerable discretion and interpretation, while „soft law“ instruments can sometimes be imposed on their suppliers by powerful interest groups. [2] Diversity of actors One of the most important revelations of the study is that soft law allows the participation of the growing diversity of actors on the international scene. .