Jessamine T.

Raña
JD4102

What is hard and soft law?

Hard law “refers to legally binding obligations that are precise (or can be made precise through
adjudication or the issuance of detailed regulations) and that delegate authority for interpreting
and implementing the law.” International trade law, at least formally, comes closest to this ideal
type, although, as we will see, it too is soft (or can become soft) in certain areas.¹

Soft law is defined as a residual category: “[t]he realm of ‘soft law’ begins once legal
arrangements are weakened along one or more of the dimensions of obligation, precision, and
delegation.” Thus, if an agreement is not formally binding, it is soft along one dimension.
Similarly, if an agreement is formally binding but its content is vague so that the agreement
leaves almost complete discretion to the parties as to its implementation, then the agreement is
soft along a second dimension. Finally, if an agreement does not delegate any authority to a
third party to monitor its implementation or to interpret and enforce it, then the agreement again
can be soft (along a third dimension) because there is no third party providing a “focal point”
around which parties can reassess their positions, and thus the parties can discursively justify
their acts more easily in legalistic terms with less consequence, whether in terms of reputational
costs or other sanctions.²

Difference between soft and hard law

Soft law is not binding in a legal sense, soft law instruments do carry some authority. Soft law
instruments are negotiated in good faith by the negotiating parties who hold some expectation
that the non-binding commitments will be met as much as reasonably possible.

International acceptance for ambitious norms is easier to obtain in soft law processes than in
negotiations of binding rules. Among other things, domestic ratification is not required for soft
law adoption and the difficult matter of compliance is less central—both of which usually imply
greater leeway for negotiators who attend international conferences.³

Transformation or incorporation of ambitious soft law norms into hard law institutions will
strongly improve the implementation of those norms. Again, several theoretical arguments may
justify the proposition. Binding rules are negotiated more thoroughly and are scrutinized more
carefully by those who will be responsible for their implementation, better reflecting that which
states are prepared to put into life. Moreover, binding rules involve more credible commitments
and are often accompanied by more stringent procedures for verification, review and response.⁴

Ambitious norms are more easily achieved in soft law institutions than in legally binding ones,
this is not primarily due to a bypass of the domestic ratification stage or low attention to
compliance costs. More important in the processes examined here is the greater flexibility
offered by soft law instruments with respect to the states that are included, the sectors of
government that participate, or the aspects of a larger problem that are singled out for
norm-building.⁵

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¹Shaffer, Gregory C. and Pollack, Mark A., Hard vs. Soft Law: Alternatives, Complements and Antagonists in
International Governance (June 26, 2009). Minnesota Law Review.
²Id.
³​(PDF) Soft Law, Hard Law, and Effective Implementation of International Environmental Norms​. Available from:
https://www.researchgate.net/publication/24089904_Soft_Law_Hard_Law_and_Effective_Implementation_of_Internat
ional_Environmental_Norms​ [accessed Dec 15 2018].
⁴Id.
⁵Id.