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Wikipedia

Soft law

The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law, often contrasted with soft law by being referred to as "hard law". Traditionally, the term "soft law" is associated with international law, although more recently it has been transferred to other branches of domestic law as well.

Contents

Definition

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

European Union and the Council of Europe

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.

Status

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.

Utility

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.

Soft law is attractive because it often contains aspirational goals that aim for the best of possible scenarios. However, the language in many soft law documents can be contradictory, uncoordinated with existing legal commitments and potentially duplicative of existing legal or policy processes. Another key point is that negotiating parties are not blind to the potential lying in stealth in soft law. If a negotiating party feels that soft law has a potential to turn into something binding down the track, this will negatively influence the negotiation process, and soft law instruments will be watered down and hemmed in by so many restrictions that there is little point in creating them.

Nevertheless, the reliance on soft law continues and it is unlikely that its use will fade; it is far more likely to be relied on in greater amounts as it also serves as a "testing ground" for new, innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change.

  1. Druzin, B. (2016). "Why does Soft Law have any Power anyway?". Asian Journal of International Law.
  2. Klarsfeld, A., & Delpuech, C. (2008). La RSE au-delà de l'opposition entre volontarisme et contrainte: l'apport de la théorie de la régulation sociale et de la théorie néo-institutionnelle. Revue de l’organisation responsable, 3(1), 53-64.

Soft law
Soft law Language Watch Edit The term soft law refers to quasi legal instruments which do not have any legally binding force or whose binding force is somewhat weaker than the binding force of traditional law often contrasted with soft law by being referred to as hard law 1 Traditionally the term soft law is associated with international law although more recently it has been transferred to other branches of domestic law as well Contents 1 International law 1 1 Definition 1 1 1 European Union and the Council of Europe 1 2 Status 1 3 Utility 2 Using care with reliance 3 See also 4 References 5 Further sourcesInternational law EditDefinition Edit 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 obligationsEuropean Union and the Council of Europe Edit 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 Status Edit 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 Utility Edit 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 Using care with reliance EditSoft law is attractive because it often contains aspirational goals that aim for the best of possible scenarios However the language in many soft law documents can be contradictory uncoordinated with existing legal commitments and potentially duplicative of existing legal or policy processes Another key point is that negotiating parties are not blind to the potential lying in stealth in soft law If a negotiating party feels that soft law has a potential to turn into something binding down the track this will negatively influence the negotiation process and soft law instruments will be watered down and hemmed in by so many restrictions that there is little point in creating them Nevertheless the reliance on soft law continues and it is unlikely that its use will fade it is far more likely to be relied on in greater amounts as it also serves as a testing ground for new innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change See also EditLegal certainty Recommendation European Union International human rights instrumentsReferences Edit Druzin B 2016 Why does Soft Law have any Power anyway Asian Journal of International Law Klarsfeld A amp Delpuech C 2008 La RSE au dela de l opposition entre volontarisme et contrainte l apport de la theorie de la regulation sociale et de la theorie neo institutionnelle Revue de l organisation responsable 3 1 53 64 Further sources Edithttp www softlawinternationale net Roberto Andorno The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics paper at a Workshop jointly organized by the German Ministry of Foreign Affairs and the German UNESCO Commission Berlin 15 February 2007 Available at http www unesco de 1507 html Alan Boyle Some Reflections on the Relationship of Treaties and Soft Law International and Comparative Law Quarterly 1999 vol 48 n 4 p 901 913 C M Chinkin The Challenge of Soft Law Development and Change in International Law 38 International and Comparative Law Quarterly 850 1989 Christians Allison Summer 2007 Hard Law amp Soft Law in International Taxation Wisconsin International Law Journal 25 2 SSRN 988782 Druzin B 2016 Why does Soft Law have any Power anyway Asian Journal of International Law 1 18 Matthias Goldmann We Need to Cut Off the Head of the King Past Present and Future Approaches to International Soft Law 25 Leiden J Int l Law 335 368 2012 available at SSRN Andrew T Guzman amp Timothy L Meyer International Soft Law 2 J Legal Analysis 171 2010 available at https ssrn com abstract 1353444 Hartmut Hillgenberg A Fresh Look at Soft Law European Journal of International Law 1999 n 3 p 499 515 Available at http ejil oxfordjournals org cgi reprint 10 3 499 Timothy L Meyer Soft Law as Delegation 32 Fordham Int l L J 888 2009 available at https ssrn com abstract 1214422 Gregory C Shaffer amp Mark A Pollack Hard vs Soft Law Alternatives Complements and Antagonists in International Governance 93 Minnesota Law Review forthcoming Jan 2009 available at https ssrn com abstract 1426123 D Hodson and I Maher Soft Law and Sanctions Economic Policy Co ordination and Reform of the Stability and Growth Pact 2004 11 JEPP 798 OA Stefan European Competition Soft Law in European Courts A Matter of Hard Principles 2008 14 6 European Law Journal 753 Regis Bismuth Ph D Improving the Accountability of Corporations for Violations of International Humanitarian Law through Soft Law Instruments 2010 Retrieved from https en wikipedia org w index php title Soft law amp oldid 993404204, wikipedia, wiki, book,

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