How significant is the concept of ‘soft law’ in public international law?

Perhaps the most contentious question in international law, (after that of its existence itself) is
that of the sources which create it. While art. 38 of the Statute of the ICJ is not binding on any
authority except itself, it is generally regarded as a sound authority on the sources of
international law. However, art. 38 doesn’t provide a complete and unambiguous statement of
international law and apparently, one of the significant concepts it misses out on is ‘soft law’.
The question required an in-depth discussion on how significant, if at all, is the concept of soft
law in public international law. In order to adequately assess the demand of the question, the
following factors will be taken into account: what soft law is (indeed it can take two meanings),
the alleged importance, or lack thereof of soft law in the sources of international and their
operation, and an assessment of other sources: namely treaties and customary international law
and whether they are as significant as they appear at the outset.
Soft law, according to Dixon, is a ‘term of art’, which immediately signifies the complexity that
this term denotes. It is used to denote two different but related phenomena. The central mystery
of soft law is the fact that states opt for something more than a complete absence of commitment,
but something less than full-blown international law and this middle-of-the-road strategy is
widely used in international law, this highlighting its significance in the system. Firstly, it is the
rules of international law that is created within international organizations or promoted by them
that do not stipulate concrete rights or obligations for the persons to whom they are addressed.
Such rules are certainly normative, according to Dixon, but their content is vague.

Examples of such include: treaties concerned mostly with human rights or environmental
protection, or as Cassee points out, relating to international economic relations. Such soft law
creates relative obligations e.g. art. 2 of the ICESCR 1966, which obliges state parties to take
steps, individually and through international assistance.. to achieve the rights enshrined in the
treaty. A further example of such soft law can be seen from the Aegean Sea Continental Shelf
case in which the ICJ decided that a communique between the Greek and Turkish Prime
Ministers was not intended to give rise to an agreement or commitment that was legally binding.
The fact that the rights enshrined in the treaty are indeed indicative of soft law can be further
seen from article 2(3) of the same, which allows developing countries to determine the extent to
which they can guarantee such rights with due regard to their national economies. Thus the
obligation here is vague in what it requires the state to do in order to avoid international
responsibility. In contrast to the above are the Helsinki Accords of 1975, which while appearing
to be an enforceable treaty, explicitly provided that this was not the case but the signatories ewre
bound only in good faith to comply with their provisions relating to human rights, environmental
protection and cooperation in economics, science and technology.
A second meaning of ‘soft law’ is as a description of those values, guidelines, ideas and
proposals that may develop into rules of international law but have not yet done so. Guzman and
Meyer prefer this definition of international law in their article in the Berkely Law Review, asit
preserves the doctrinal distinction between binding and nonbinding norms, but also tracks an
intuitive difference between quasilegal
rules and purely political rules.This is simple another name for principles de lege frenda
(principles which could become normative in the future) Examples include:
Thus, In international law, while ‘hard’ or ‘firm’ law is an obligation of a state or states for the
breach of which it or they are responsible, Soft law does not imply obligation and, therefore,
possible breach and responsibility for breach; soft law is instead a norm expressed by the
international community to which it is hoped, at least by the group of states articulating the
norm, that states will adhere, but to which there is no obligation of adherence. Judge Rosalyn
Higgins (1994) notes specifically, that ‘international consequences can flow from acts which are
not, in the fomal sense, binding”. Undoubtedly however, such rules lessen the chance of conflict
between competing ideologies, and may lead to the development of harder law i.e. treaties or
customary international law in due course. The disadvantage of this is two fold: firstly, that until
such norms acquire the acceptance of opinio juris or become codified in a legally binding treaty,
they will be outside the realm of international law and secondly, such rules may be so
impractical and vague as to have no effect in international law at all. In fact, according to Van
Dijk 1987, whatever impact soft law may have, it is perceived by all to be less "law" than the
hard law of treaties and, for that matter, customary international law.

Despite these theoretical and practical challenges posed by soft law, international legal scholars
and practitioners are agreed on the integral importance of soft law in the international legal
system. It seems to be the solution to a straightforward coordination problem when needed
between states and in certain cases the bureaucratic costs of transaction may be less cumbersome
on states than for treaties. An example of this sort of coordinating device is the Paris
Memorandum of Understanding on Port State Control, an agreement with 27 member states that
harmonizes inspection procedures aimed at ensuring compliance with major maritime
conventions governing pollution. Secondly, in many instances states may prefer the use of soft
law over hard law since, in non-compliance the latter would lead to greater consequences, both
legal (sanctions for non-compliance) and political (loss of reputation in the international arena
etc) and in this case the inadvertent or express use of soft law highlights its significance in
international law. Third, States also generate soft law more indirectly through international
organizations such as the United Nations, the International Labor Organization, and the
Organization for Economic Cooperation and Development. The UDHR for example, lays out a
set of human rights obligations for states but isn’t explicitly binding on states (Its rights however
were transcribed into an internationally binding treaty: the ICCPR). Similarly, the comments of
the UNHRC and other such committee bodies, and the Basle Accords that seek to improve
banking regulatory practices are also soft law and indicate the width with which the concept of
soft law is prevalent and significant in international law.

It is clear from the foregoing that soft law is an important device in international law. While it
may not offer the certainty and the compliance pull offered by treaties or customary international
law, It offers states and international organizations the option of forging agreements where
insistence on strict legal obligations would result in impasse. The examples quoted above are
indicative of the plethora of situations in which it can be seen that soft law is significant in public
international law.