Dinah Shelton, Professor, Notre Dame Law School

Professor Dinah Shelton shared findings of a three year project on international "soft law," which she directed for the American Society of International Law (ASIL). Soft laws are legally non-binding instruments that are utilized for a variety of reasons, including to strengthen member commitment to agreements, reaffirm international norms, and establish a legal foundation for subsequent treaties. By examining the effectiveness of soft law mechanisms across a variety of subject areas, the ASIL Project aims to answer a broader question of international law: Is it possible to get equivalent, if not better, levels of compliance with soft law as with binding law?

Professor Shelton began her presentation by exploring the growing complexity of the international system. The number, as well as the type, of actors has increased within the world. The international system is no longer solely determined by states, but is also influenced by inter-governmental international organizations, non-governmental organizations, professional associations, and transnational corporations. Besides this growing multiplicity of actors, there has also been a proliferation of international legal norms, some of which have taken the form of soft law. In response to these developments, the ASIL Project tackled three interrelated issues: 1) the nature and characteristics of international law; 2) how to understand and measure compliance with international law; 3) how to evaluate the nature and importance of soft law in the international legal system.

A central question addressed throughout the study is whether legally binding instruments (law) and legally non-binding ones (non-law) are mutually exclusive, or conversely whether law and "non-law" are two ends on a commitment continuum ranging from legally binding commitments to no commitments at all (i.e. complete freedom of action).

Legal instruments can be typified by both form (legally binding or legally non-binding) and content (normative or promotional inspiration). The form and content taken together lead to four possible types of commitment, as seen by the two by two matrix below. The dashes within the matrix imply that this is a very fluid system. Conceptions of law can slide between the categories.

CONTENT
STRUCTURE / FORM
 
Legally Binding Instrument
Non-Legally Binding Instrument
Normative

Law - An instrument that is binding--legal action may be taken if there is non-compliance.

Commitment - A political or moral obligation that not legally binding.

Promotional Inspiration

Hortatory - Law with normative elements but with very weak obligations.

Freedom of Action - No commitment at all.

The Case Studies

Most studies on soft law thus far have focused on the environment. The ASIL Project is a comparative analysis of soft law across four international issue areas: 1) Human Rights 2) Environment 3) Arms Control/Disarmament 4) Trade/Finance.

1) Human Rights

  • Inter-American Declaration of Human Rights (Organization of American States)
  • Helsinki Accords (Organization of Security and Cooperation in Europe)
  • Labor Rights Laws (International Labor Organization)
  • Sullivan Principles on Apartheid (Private Sector Active in South Africa)
  • McBride Principles (Private Sector Active in Northern Ireland)

2) Environment

  • Prior Informed Consent for Hazardous Chemicals in International Trade (PIC)
  • Driftnet Fishing (UN General Assembly?Series of Resolutions 1989-1992)
  • Antarctica Treaty Recommended Measures (ATRM)
  • Convention on Migratory Species (States were encouraged to create informal agreements within the treaty?Memorandums of Understanding)

3) Arms Control/Disarmament

  • Nuclear Safety Measures (The International Atomic Energy Agency?IEAE)
  • Suppliers Export Controls (Dual Use Technologies)
  • Landmines (Before the Ottawa Treaty)

4) Trade/Finance

  • Money Laundering (World Bank)
  • Standards Harmonization (International Standards Organization)
  • Environmental Soft Law Linkages with Trade (Asian Pacific Economic Community)

        Professor Shelton highlighted the common characteristics of the soft law instruments that were examined.

First, the legal mechanisms presented within this study were all normative commitments, in which the actors involved intended to make a genuine effort to comply. Furthermore, as it was assumed, the unique characteristics of each subject area led to the adoption of distinct legal mechanisms in solving a particular problem. For instance, within arms control and finance agreements, states used reciprocity to facilitate compliance. In the environment and human rights agreements, however, such mechanisms did not exist.

Second, the various types of actors?and their motivations?involved in the issue areas influenced the creation of soft law mechanisms. For example, in the environment and trade areas, international agreements primarily focused on the regulation of non-state actors. Professor Shelton highlighted a few case studies that exemplified the distinct motives behind the utilization of soft law:

  • In the case of the Inter-American Declaration on Human Rights, soft law was intended to get consensus on basic principles before a binding treaty could be proposed.
  • In agreements emerging from the private sector (Sullivan/McBride principles), soft law was necessary because non-state actors are incapable of writing binding treaties.
  • In the arms control and environment areas, which are constantly changing due to technological innovations, the speed and flexibility of soft law made it a more attractive governance option than the long process of drafting and implementing a binding treaty.

Third, geographic and cultural factors greatly determined the form and function of the various soft law instruments. Agreements adopted through regional institutions, such as the OSCE or the OAS, were influenced and molded by different factors than agreements adopted at the global level through institutions such as the UN.

Initial Findings of the Study

Within the case studies examined by the project, soft law was a supplement, not an alternative, to binding law. Soft law was used to fill in gaps within hard law instruments or to supplement hard law instruments with new norms. There were few examples of stand-alone soft law agreements that were not in some way intertwined with hard law.

Multiplicity of Actors
One of the most important revelations of the study is that soft law permits the participation of the growing multiplicity of actors involved in the international arena. Soft law allows more actors to get involved in the law making process than conventional binding law. Professor Shelton cited a few examples of how soft law incorporates the efforts of new actors:

  • In the Migratory Species Convention, a Memorandum of Understanding was signed by states not part of the original treaty and by two non-governmental conservation organizations.
  • In the Memorandum of Understanding within the Migratory Species Convention between European port states, communities of experts outside the central treaty making body were brought together.

Issue Areas
The particular issue areas also impacted the scope and content of soft law instruments. All four areas examined used soft law, but to different degrees and for different purposes.

* Human Rights
Within the human rights area, soft law was used primarily as a precursor to binding treaties. Soft law was perceived as a way to establish a consensus of norms between members of an agreement that could later be codified through binding law.

At the global level, general binding treaties on human rights have decreased over time (i.e. broad declarations on human rights), while more specific non-binding agreements that tackle such complex issues as religious and indigenous rights have increased. At the regional level, both non-binding agreements and general treaties have increased over time.

* Environment
In the environment area, soft law is usually subsequent to treaties, and is used as a way to flesh out less clearly defined principles in the treaty text. Furthermore, regionalization in environmental soft law is usually a result of geographic realities. For example, the Indian Ocean is obviously quite different than the Baltic Sea and demands a distinct legal governance approach.

* Arms Control/Disarmament
In the arms control/disarmament area, hard law sometimes proceeds soft law. Soft law is a way to reaffirm norms and to strengthen the commitment that treaty members have towards complying with a particular treaty, in turn placing more pressure upon members who have not ratified, or complied with a binding agreement. Soft law is thus frequently interwoven with hard law in arms control. In these particular treaties, a network of obligations exists, as soft law strengthens and reinforces compliance.

* Trade/Finance
In order to facilitate free trade, the trade/finance area has the least amount of binding law out of all the areas examined. There are general codes of conduct on such issues as money laundering. Private sector initiated soft law, such as the Sullivan and McBride principles, provides means for companies to preempt binding, government regulated law.

Compliance Results
Poor compliance, as seen with the APEC environmental norms agreements and the World Bank money laundering agreements, often occurred because of lack of leadership and commitment amongst treaty members. Treaties with strong compliance, such as the Convention on Migratory Species, were successful because they incorporated the efforts of new actors and strengthened the normative commitments embedded within the binding aspects of treaties. Compliance with soft law instruments can also change over time, as seen with the declining state of compliance with the OSCE Helsinki accords and the improving state of compliance with the OAS agreements on human rights.

Concluding Remarks
Professor Shelton concluded her presentation by highlighting some of the preliminary conclusions that the ASIL Project has reached on soft law. Professor Shelton divided the factors affecting compliance into three distinct categories: 1) content; 2) process; and 3) institutions.

  • Content involves the actual specifics of the soft law instruments, such as actors, subject matter, and language. The following preliminary conclusions were given.
    * Specific obligations work better than vague agreements. For example, the driftnet fishing soft law was clearly defined and has high compliance, while the Universal Declaration of Human Rights is very vague, and has relatively low compliance.
    * It appears that norms on common areas are easier to comply with than intrusive, domestic regulations.
    * Regulation of state actors is easier than regulation of non-state actors.
    * Linkage of subject matter is important. In the OSCE case of linking human rights and security, incentives were created which led to better compliance. Yet this has shown to be not as true when linking money laundering to human rights.
    * Linking soft law to hard law has also shown to lead to better compliance. Hard law legitimated soft law in most of the studies.
    * Reciprocal obligations?with retaliation, if possible?increases the likelihood of compliance in soft law.
    * Norms of abstention are more effective regarding compliance than norms that require action.
    * Value laden factors, such as naming a soft law a "Declaration," create higher expectations and improve compliance.
    * Financial incentives improve compliance.

  • Process deals with the ways that various actors go about creating soft law. The following preliminary conclusions were given.
    * If more states agree that the problem should be addressed, the better the compliance will be.
    * Leadership is an important factor in obtaining compliance. This is seen as especially true with APEC?s environmental norms, which ultimately failed because no APEC member took a leadership role in the organization on environmental
    issues.
    * The participation of regulatory targets is also important in obtaining compliance with soft law.
    * The transparency of international soft law also contributed in improving compliance.

  • Institutions involve the institutional mechanisms that are used to strengthen compliance with soft law. The following preliminary conclusions were given.
    * Monitoring and follow up is crucial in obtaining compliance. While the OSCE Helsinki accords had fairly good monitoring and compliance, APEC and the OAS instruments had little to no follow up, which resulted in poor compliance levels.
    * Regional mechanisms tend to work better than global mechanisms. This is especially true in human rights and the environment.

Prepared by Jonathan Blavin, Junior Fellow.