Soft Law Defined

The central challenge in defining the term ‘soft law’, at least for present purposes, is to develop a definition that is sufficiently precise to have some legally relevant meaning, to ensure a common understanding, and to facilitate clear communication, while at the same time remaining fluid enough to be informed by the very work undertaken by the authors of this volume.

As this book examines the uses of soft law in law and legal process, it is essential to formulate a core definition that, while still corresponding to prevailing usages of the term by international lawyers, remains coherent in a legal context. As such, the term soft law strictly understood will be limited to rules that have some recognizable status within the international legal system and, more precisely, within the framework of the established sources of international law as reflected in Article 38 of the Statute of the International Court of Justice.

The most suitable definition for the present enquiry is one that adopts the binary view between law and non-law while admitting the vast diversity of relationships and effects that non-law norms can have to and upon existing law. At the same time, to say that this definition adopts a binary view as to whether a given norm is law or not, does not exclude a spectrum of relative softness/hardness. The soft law spectrum in this sense is the spectrum beginning from the point at which a rule begins to find authoritative acceptance and through its progressive hardening/crystalliza- tion as it gains increasing acceptance. Here, within this spectrum of norms that are in the process of incubation, is the realm of soft law in the strict sense. Once a rule fully crystallizes into, or pursuant to, one of the Article 38 sources of international law, it thereafter ceases to be soft law.

The adoption of this binary approach is particularly important in the field of international human rights law. Considerations of enforceability, precision, measurability, justiciability, onerousness, availability of redress or recourse to other fora, likelihood of sanction or penalty, and the like, are irrelevant to the issue of whether the given obligation exists as a matter of applicable law. A treaty obligation to make a voluntary pledge is still a binding legal obligation. A treaty obligation to endeavour to make a voluntary pledge is still a binding legal obligation. If the binary approach were instead rejected in favour of an assessment of ‘softness’ according to the foregoing considerations, the concept of soft law could potentially encompass much of human rights treaty law, rendering the central enquiry of the present study incoherent.

For purposes of this volume, then, the term soft law is understood to refer to rules (prescribing conduct or otherwise establishing standards) that are in the process of becoming, though may not ultimately become, binding rules of international law in the form of any of the established sources of international law—customary law, general principles of law, or as a binding interpretation of a rule of treaty law. This definition refers to the rules themselves, and not the instruments in which they may be found. (The term ‘soft law instrument’ will be defined in section 6.)

Softness therefore does not refer to degree of precision, onerousness, enforceability, justiciability, availability of redress or recourse to other fora, or likelihood of sanction or penalty. Softness instead will be understood in relation to the degree of hardening of a norm into an existing rule of international law. Soft law, in this sense, may be grounded in the broader concept of lex ferenda. While recognizing that the latter is a distinct concept, it helps to situate our notion of soft law in the context of the international legal system, enabling the concept to be useful in lawyering while retaining much of the scope encompassed by usage.

 
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