How to Understand Why Countries Choose Soft Law
Understand the differences between soft law and hard law in the international law context., Consider that soft law is often preferable to doing nothing at all., Check the issue itself., Look to see how the political consensus is progressing...
Step-by-Step Guide
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Step 1: Understand the differences between soft law and hard law in the international law context.
Read How to know the difference between soft law and hard law for more information. -
Step 2: Consider that soft law is often preferable to doing nothing at all.
A country or group of countries may decide that it is preferable to make aspirational statements about a matter that needs dealing with globally than to simply ignore the matter or let it slide into the hands of non-state players instead.
Soft law can serve as a way of notifying everyone that the countries in question are paying attention and intend to get around to doing something more concrete in the near or distant future. , If the issue at hand is one that requires a fast response time, soft law may be the best way to get things started.
For example, a fishery that is declining rapidly may need immediate response, something that a fully negotiated and binding treaty won't bring about for years given all the formalities needing to be met with a treaty.
A soft law instrument is fast to adopt, and it can contain technical measures that motivate and give a green light to states getting on with any measures they want to put into place.
At the same time, there is no necessity placed on those states unable to help out for technical, financial, political, or other reasons.
Soft law is an excellent choice for frequently changing technical or environmental situations because revisions are likely to be frequent. , The slower and more cantankerous the process of political consensus, the more likely soft law is to be used because it can work around a lack of consensus and at least allow those interested states to begin working on issues while at the same time aiming to convince other states to come on board and eventually create a binding instrument and obligations.
In this case, soft law buys time to meet disagreements and competing viewpoints while still encouraging actions to be taken. , This is another reason why soft law gets used; when the science isn't certain or is evolving, soft law can build a framework that can be built upon as scientific certainty begins to firm.
In the meantime, states aren't committing to something solid but they are indicating a willingness to remain receptive to the possibilities that the science is revealing. , Soft law is often resorted to where states have big concerns that some states will benefit from a binding agreement while other states are giving up benefits, thereby enhancing the position of the free rider state at the expense of the other states.
Soft law allows "wriggle room" while at the same time it can enable more motivated states to spend time persuading potential free riders that being involved in a collaborative way is in their interests.
Soft law can overcome the objections of a few states that are responsible for a problem.
The international pressure can then begin to increase on those states as it becomes clearer that those states that are conforming to the desired pathway out of voluntary commitment are beginning to reflect the desired norm for all countries.
As time goes on, even though soft law commitments are essentially "toothless"
they carry much aspirational and fairer world value.
This can lead citizens, NGOs, civil society, and other non-state actors to start demanding that their own country or other countries fall into line and make the commitments obligatory.
This can be a powerful force if used persuasively and with concerted effort.
With the increasing reach of social media, this may become an even more evident practice. , Sometimes there is a binding treaty in place but its text contains ambiguities or gaps.
Rather than going through the long-winded process of amending the treaty or even passing a new one to fix this, soft law can be used to infill the gaps and to clarify.
MOUs, principles, standards, instruments, etc., are commonly used soft law responses to this type of problem. , It may simply be that a state has no other alternative than to turn to soft law.
For example, international organizations do not tend to have the power to adopt binding texts but they still need to function from day-to-day. -
Step 3: Check the issue itself.
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Step 4: Look to see how the political consensus is progressing.
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Step 5: Consider whether there is scientific uncertainty.
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Step 6: Question whether there are any "free riders" trying to get benefits without doing their part.
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Step 7: Check the possibility of soft law being used to resolve ambiguities.
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Step 8: Consider other constraints.
Detailed Guide
Read How to know the difference between soft law and hard law for more information.
A country or group of countries may decide that it is preferable to make aspirational statements about a matter that needs dealing with globally than to simply ignore the matter or let it slide into the hands of non-state players instead.
Soft law can serve as a way of notifying everyone that the countries in question are paying attention and intend to get around to doing something more concrete in the near or distant future. , If the issue at hand is one that requires a fast response time, soft law may be the best way to get things started.
For example, a fishery that is declining rapidly may need immediate response, something that a fully negotiated and binding treaty won't bring about for years given all the formalities needing to be met with a treaty.
A soft law instrument is fast to adopt, and it can contain technical measures that motivate and give a green light to states getting on with any measures they want to put into place.
At the same time, there is no necessity placed on those states unable to help out for technical, financial, political, or other reasons.
Soft law is an excellent choice for frequently changing technical or environmental situations because revisions are likely to be frequent. , The slower and more cantankerous the process of political consensus, the more likely soft law is to be used because it can work around a lack of consensus and at least allow those interested states to begin working on issues while at the same time aiming to convince other states to come on board and eventually create a binding instrument and obligations.
In this case, soft law buys time to meet disagreements and competing viewpoints while still encouraging actions to be taken. , This is another reason why soft law gets used; when the science isn't certain or is evolving, soft law can build a framework that can be built upon as scientific certainty begins to firm.
In the meantime, states aren't committing to something solid but they are indicating a willingness to remain receptive to the possibilities that the science is revealing. , Soft law is often resorted to where states have big concerns that some states will benefit from a binding agreement while other states are giving up benefits, thereby enhancing the position of the free rider state at the expense of the other states.
Soft law allows "wriggle room" while at the same time it can enable more motivated states to spend time persuading potential free riders that being involved in a collaborative way is in their interests.
Soft law can overcome the objections of a few states that are responsible for a problem.
The international pressure can then begin to increase on those states as it becomes clearer that those states that are conforming to the desired pathway out of voluntary commitment are beginning to reflect the desired norm for all countries.
As time goes on, even though soft law commitments are essentially "toothless"
they carry much aspirational and fairer world value.
This can lead citizens, NGOs, civil society, and other non-state actors to start demanding that their own country or other countries fall into line and make the commitments obligatory.
This can be a powerful force if used persuasively and with concerted effort.
With the increasing reach of social media, this may become an even more evident practice. , Sometimes there is a binding treaty in place but its text contains ambiguities or gaps.
Rather than going through the long-winded process of amending the treaty or even passing a new one to fix this, soft law can be used to infill the gaps and to clarify.
MOUs, principles, standards, instruments, etc., are commonly used soft law responses to this type of problem. , It may simply be that a state has no other alternative than to turn to soft law.
For example, international organizations do not tend to have the power to adopt binding texts but they still need to function from day-to-day.
About the Author
Nathan Cooper
Brings years of experience writing about DIY projects and related subjects.
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