Lagunova Irina
Main functions of soft law:
Traditionally law is usually regarded as a system of rules and guidelines which are
enforced through social institutions to govern behavior.i So, the essential feature of law, which
distinguishes it from other kinds of social norms, is binding force.
But since the latter half of twenty century the influence of different acts which formally
does not have legal force has been increasing more and more. This is an example.
On 13 December 1989 the Court of Justice was deciding the case of Salvatore Grimaldi, a
migrant worker of Italian nationality suffering from a disease of the hands caused by mechanical
vibrations from the use of pneumatic drillii. The Belgian Fonds des maladies professionelles
refused to compensate this damage because Dupuytren’s contracture was not mentioned in
Belgian schedule of occupational diseases. However, it was mentioned in schedule of European
schedule, which a Recommendation to the Commission advised to be produced in national law.
Recommendations were, according to the article 189 EC, deprived of legally binding force, but
ECJ considered that this didn’t mean that they were deprived of legal effects. Therefore, they had
to be “taken into account” by juridical authorities when deciding on disputes submitted to their
judgments.iii
The mentioned Recommendation is an instance of application of so-called “soft law” that
might be defined as rules of conduct which, in principle, have no legally binding force, but
nevertheless may have practical effects.iv But how is it permissible to use a term “law” for
defining recommendatable acts? And why has soft law become so widespread nowadays? To
consider some aspects of these questions I will try in this work.
Although the concept of soft law has existed for years, scholars have not reached
consensus on why states use soft law or even whether "soft law" is a coherent analytic category.
In part, this confusion reflects a deep diversity in both the types of international agreements and
the strategic situations that produce them.
Soft law is not only international phenomenon but application of this legal instrument in
international relations is very frequent, so the term "soft law" is also often used to describe
various kinds of quasi-legal instruments of the European Communities: "codes of conduct",
"guidelines", "communications" etc. The recourse to soft law instruments has been granted high
importance in the implementation of principles of subsidiary and proportionallyv and has been
encouraged by White paper on European Governance.vi
With regard to classic theory of law usage of the term "soft law" is very controversial so
as soft law does not have the very essential feature of the law – binding force. So, there are some
international practitioners who do not accept its existence and for others. But nevertheless, while
not prescribing obligations, soft law instruments may be effective and bring changes on the
political, economic and social life outside the law itselfvii. Many researchers express the view
that the effectiveness of European soft law lays in the fact that they may change the behavior of
governmental and legislative bodies and hence they constitute “desirable alternative rather then a
simply a second best solution or a way station towards hard law.” viii Also soft law instruments
are sometimes qualified as tools suited to address sovereignty costs and uncertainly European
affairsix, having the ability to resolve negotiation “deadlocks.x”
One of the soft law instuments is international common law, which may be defined as a
non-binding gloss that international institutions, such as international tribunals, put on binding
legal rules. The theory of international common law is based on the observation that, except
occasionally with respect to the facts and parties to the dispute before it, the decisions of
international tribunals are non-binding interpretations of binding legal rules. States grant
institutions the authority to make international common law as a way around the requirement
that states must consent in order to be bound by legal rules. International common law affects all
states subject to the underlying rule, regardless of whether they have consented to the creation of
the international common law. As such, international common law provides cooperation-minded
states with the opportunity to deepen cooperation in exchange for surrendering some measure of
control over legal rules.xi
Purposes for using soft law can by very different. States may use soft law to solve
straightforward coordination games in which the existence of a focal point is enough to generate
compliance.
Under what we term the "loss avoidance" theory, moving from soft law to hard generates
higher sanctions which both deter more violations and, because sanctions in the international
system are negative sum, increase the net loss to the parties. States will choose soft law when the
marginal costs in terms of the expected loss from violations exceed the marginal benefits in
terms of deterred violations.
Under the "delegation theory," states choose soft law when they are uncertain about
whether the rules they adopt today will be desirable tomorrow and when it is advantageous to
allow a particular state or groups of states to adjust expectations in the event of changed
circumstances. Moving from hard law to soft law makes it easier for such states to renounce
existing rules or interpretations of rules and drive the evolution of soft law rules in a way that
may be more efficient than formal renegotiation.xii
So, we can conclude that soft law is not law in positive meaning of the term but it may be
consider as other social normative instrument, the force of which are ensured not by sanctions
but authority of enacting body and usability of ready decisions for different situations.
Soft law instruments are often considered as norms which hold much potential for
morphing into "hard law" in the future. This process may be in two different ways. One is when
declarations, recommendations and others 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
variant 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, 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.xiii
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.
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.
So, we can conclude that soft law is social normative instrument of governing behavior
encouraged not by enforcement through public institutes but usability of ready decisions for
different situations, flexibility and efficiency in regulation social relations and authority of
enacting body. Nowadays the role of soft law has been increasing, especially in regulation of
international relations. This fact may be explained by multiple functions of soft law instruments
as acts of interpreting “hard law”, guidelines adopted by authority, aimed to anticipate negative
consequences, standards of social groups in different spheres of life and others. 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.xiv
i
Robertson, Geoffrey, Crimes against humanity: The Struggle For Global Justice. 2th ed. (2002) Penguin books. p.
90
ii
Judgment of the Court (Second Chamber) of 13 December 1989. - Salvatore Grimaldi v Fonds des maladies
professionnelles. - Reference for a preliminary ruling: Tribunal du travail de Bruxelles - Belgium. - Social policy Occupational diseases - Effects of a recommendation. - Case C-322/88.
iii
OA Stefan, European Competition Soft Law in European Courts: A Matter of Hard Principles? (2008) 14(6)
European Law Journal
iv
Snyder, Francis, ‘Soft Law and Institutional Practice in the European Community’, EUI Working Paper LAW n°
93/5 (June 1993), 36 p.
v
Conclusion of the Presidency , European Council in Edinburg, 11-12 December 1992
vi
European Commission: European Governance White Paper, Brussels, 25.7.2001 COM (2001) 428
vii
Snyder, Francis, The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques.
In T/ Daintish. Implementating EcLaw in UK: Structure for indirect Rule. pp. 51-83
viii
D.Trubek, P. Cottrell, M.Nance. "Hard and Soft Law in European Integration" , Scott & de Burca, New
Governance in the US and EU (Hart 2006)
ix
D.Hodson and I.Maher. “Soft law and Sanction: economic policy co-ordinationand reform of the Stability and
Groth Pact”. (2004)11. JEEP.798
x
A. Schaffer. A new form of governance? Comparing the open method of co-ordination to multilateral serveillance
by the IMF and the OECD. (2006)/ 13 (I) JEEP.70; H$ Hillgenberg, “A Fresh look at soft law”/ 10 EJIL.499
xi
Andrew T. Guzman, Timothy Meyer.” International Soft Law”. The Journal of Legal Analysis, Vol. 2, No. 1,
Spring 2011. UC Berkeley Public Law Research Paper No. 1353444
xii
Andrew T. Guzman, Timothy Meyer.” Op cit
xiii
http://en.wikipedia.org/wiki/Soft_law
xiv
http://en.wikipedia.org/wiki/Soft_law