A Taxonomy of Soft Law. Stipulating a Definition
There is no universally accepted definition of the term ‘soft law’. Indeed, as noted in the Introduction, the very notion of soft law is disputed. Nonetheless, the phrase is commonly used by international lawyers and is generally understood to refer to certain categories of norms, and at least some of these norms are having an undeniable impact on the interpretation, application, and development of international human rights law.
Existing definitions for the term soft law are varied, inconsistent, and at times incoherent from the perspective of international law. Some definitions encompass any behaviour-affecting, or potentially behaviour-affecting, norms that are not themselves existing rules of international law (i.e. that do not have the status of binding legal rules according to the established sources of international law). Other definitions are limited to particular formulations set forth in certain types of instruments, irrespective of whether their content reflects existing law. Still others would include even vague or non-j usticiable obligations in unquestionably hard law sources, such as treaties.1 There are countless other usages of the term, including, but not limited to, various permutations of the foregoing.2
In order to delimit the scope of the volume, and consequently to establish the framework of the subject matter to be analysed, the present chapter stipulates a formulation for a core meaning of the term ‘soft law’, as well as a definition for the phrase ‘soft law instrument’. In addition to serving the purpose of framing the subject matter, the formulation of a definition also serves the broader purpose of facilitating communication by clarifying our understanding of what we mean when
- 1 Note, however, that a provision in a treaty may reflect soft law vis-a-vis states that are not bound by that rule (e.g. because they are not parties to that treaty).
- 2 J. Ellis, ‘Shades of Grey: Soft Law and the Validity of Public International Law’, Leiden Journal of International Law vol. 25 (2012): 313—34, at 315; J. Klabbers, ‘The Redundancy of Soft Law’, Nordic Journal of International Law vol. 65 (1996): 167—82 at 168; D. Shelton, ‘Normative Hierarchy in International Law’, American Journal of International Law vol. 100 (2006): 291—323 at 319.
Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.
we use this phrase. We may have different understandings of the roles and usages of soft law, and indeed even of what properly constitutes soft law, but it is essential to have a common vocabulary in order to understand these differences.