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.
Definition of soft law
Soft law means commitments made by negotiating parties
that are not legally binding.

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, codes of conduct,
codes of practice etc.; often found as part of framework
treaties;
Action plans (for example, Agenda 21);
Other non-treaty obligations

European community
The term "soft law" is also often used to
describe various kinds of quasi-legal
instruments of the European Union: "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.
Status of soft law
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 of soft law
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 ingood 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 economics law and international
sustainable development law.

Using care with reliance on soft law
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.