Lagunova Irina
Main functionsof 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 drill[ii]. 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 ofso-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 proportionally[v] 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 itself[vii].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 affairs[ix], 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
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