Soft law is a subject of debate among legal scholars. It
can be defined as the body of international instruments which are not laws as such, but which possess variable regulatory force.
It can also be defined as rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effects. It can take many forms including norms or other documents released by states, private companies or markets, or international organizations. It is seemingly omnipresent in modern business law and has enormous influence over economic activities.
(adapted from Morth, U.,
Soft Law in Governance and Regulation: An Interdisciplinary Analysis, Edward Elgar Pub, 2004, p. 5)
"The realm of '
soft law' begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation. This softening can occur in varying degrees along each dimension and in different combinations across dimensions."
(Goldstein, A,
Legalization and World Politics, 2001, visited 2011-08-03)
International Soft Law Instruments
Soft law covers most of the resolutions and declarations of the UN general assembly, for example: the Universal Declaration of Human Rights; the statements, principles, codes of practice etc. often found as part of framework treaties; and action plans and other non-treaty obligations. Many such international agreements may prove useful or serve as the basis for future legally binding agreements.
(adapted from International Development Research Centre (IDRC),
How Can Communities Use 'Soft law" and Nonbinding International Agreements? , visited 2011-08-03)
Corporate Initiatives
Codes of conduct and international framework agreements are good examples of
soft law instruments in the field of labour regulation.
Debate
"Legal critics of the use of
soft law claim that law cannot be conceptualized along a continuum. According to this binary position there must be a strict distinction between law and non-law;
soft law is considered to be dangerous because the relativisation of normative values in international law raises illusory expectations of compliance with which no one is obliged to comply (Sztucki)."
(Morth, U.,
Soft Law in Governance and Regulation: An Interdisciplinary Analysis, Edward Elgar Pub, 2004, p.7)
Soft Law as a Tool of Compromise
"
Soft law can ease bargaining problems among states even as it opens up opportunities for achieving mutually preferred compromises. Negotiating a hard, highly elaborated agreement among heterogeneous states is a costly and protracted process. It is often more practical to negotiate a softer agreement that establishes general goals but with less precision and perhaps with limited delegation."
(Goldstein, A,
Legalization and World Politics, 2001, visited 2011-08-03)
