The term ''soft law'' refers to quasi-legal instruments (like recommendations or guidelines) which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law. Soft law is often contrasted with hard law. The term ''soft law'' initially emerged in the context of

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

, although more recently it has been transferred to other branches of domestic law as well.

International law

Definition

The definition or form of soft law depends on the legal context. In essence, a domestic soft law will look and act differently than an EU or international soft law. In the context of international law, the term 'soft law'' covers such elements as: * Most Resolutions and Declarations of the

UN General Assembly The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...

* Elements such as statements, principles, code of practice etc.; often found as part of framework treaties; * Action plans (for example,

Agenda 21 Agenda 21 is a non-binding action plan of the United Nations with regard to sustainable development. It is a product of the Earth Summit (UN Conference on Environment and Development) held in Rio de Janeiro, Brazil, in 1992. It is an action age ...

, Financial Action Task Force Recommendations); * Other non-treaty obligations The common thread between these different types of soft law instruments is that they lack a legally binding force and they are voluntary, and therefore do not include sanctions.

European Union and the Council of Europe

The term ''soft law'' is also often used to describe various kinds of quasi-legal policy instruments of the

European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...

: " recommendation", "codes of conduct", "guidelines", "communications" etc. While, in the EU, soft law can be adopted by several bodies – like the

Council of the EU The Council of the European Union, often referred to in the treaties and other official documents simply as the Council, and informally known as the Council of Ministers, is the third of the seven Institutions of the European Union (EU) as ...

or agencies – the most common actor in this area is the

European Commission The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body ...

. In the area of law of the European Union, soft law instruments are often used to aid with the implementation or interpretation of EU law, or to indicate how the

intends to use its powers and perform its tasks within its area of competence. The legal basis for the adoption of soft law by the European Union is found in Art 288 of the Treaty on the Functioning of the European Union (TFEU) which describes the different EU legal acts that the Union may adopt to exercise its competences:

''"To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.'' ''A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.'' ''A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.'' ''A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.'' ''Recommendations and opinions shall have no binding force."''

The Article states that while European Union

regulations Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...

or directives are legally binding, the Union may also adopt recommendations and opinions which hold no binding force. The conventions of the Council of Europe are also legally binding for those countries which choose to ratify them, but countries are not forced to ratify them. The resolutions and recommendations of the

Council of Europe The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it has 46 member states, with a p ...

are also soft law. These represent the views of the

Parliamentary Assembly of the Council of Europe The Parliamentary Assembly of the Council of Europe (PACE) is the parliamentary arm of the Council of Europe, a 46-nation international organisation dedicated to upholding human rights, democracy and the rule of law. The Assembly is made up ...

, but are not legally binding for the 47 member states.

Status

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

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 in

good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...

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 Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...

. 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 ''Opinio'' was a Dutch weekly magazine which was briefly published between 2007 and 2008. The magazine was headquartered in Amsterdam, the Netherlands. History ''Opinio'' was first appeared on 18 January 2007. The magazine ceased operations and ...

on applying or interpreting a

treaty A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal per ...

. 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 economic law and international

sustainable development Sustainable development is an organizing principle for meeting human development goals while also sustaining the ability of natural systems to provide the natural resources and ecosystem services on which the economy and society depend. The ...

law. Soft law is also important in human resource management related matters such as gender equality, diversity and other topics (health and safety for instance). In social matters, so-called 'binding' legislations often leave considerable room for discretion and interpretation, whereas sometimes, 'soft law' instruments can be imposed by powerful stakeholders on their suppliers.

Using care with reliance

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 In common usage, climate change describes global warming—the ongoing increase in global average temperature—and its effects on Earth's climate system. Climate change in a broader sense also includes previous long-term changes to ...

Examples

Roberts argues that decisions surrounding the admissability of expert evidence in English Law are mostly governed by soft law based on advice by the Judicial College and various

professional association A professional association (also called a professional body, professional organization, or professional society) usually seeks to further a particular profession, the interests of individuals and organisations engaged in that profession, and t ...