Kara Sears
Soft law refers to agreements, principles, and declarations that are not legally binding. They are predominantly found in the international sphere and allow states to make agreements without knowing whether other states will keep their commitments. Soft law can be used by non-corporate entities, such as states, and by corporations themselves. Soft law can be a useful tool for non-corporate entities to experiment with best practices and adapt them to their operations before they become hard law. For example, the UNGPs are soft law principles that outline a corporate responsibility to respect human rights, and they can be embedded into contracts. Soft law can also be applied to non-corporate entities in the form of domestic law, such as the establishment of National Contact Points to mediate and conciliate between parties involved in allegations of non-observance of guidelines.
Characteristics of Soft Law
| Characteristics | Values |
|---|---|
| Legally Binding | No |
| Voluntary | Yes |
| Positive Influence | Yes |
| Compliance Encouraged | Yes |
| Governs Relations Between Countries | Yes |
| Found Predominantly in the International Sphere | Yes |
| Compliance Leads to Reputational Benefits | Yes |
| Compliance Provides Adaptability to Future Hard Law | Yes |
| Provides Guidance to Businesses | Yes |
| Provides Guidance to NGOs | Yes |
| Preferred by Some State and Non-State Actors | Yes |
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What You'll Learn
Soft law and human rights
Soft law is a term used to describe agreements, principles, and declarations that are not legally binding. Soft law instruments are usually considered voluntary and lack sanctions, but they can be an important step towards creating binding legislation in the future. They are particularly common in the international sphere, where states may be reluctant to commit to binding agreements due to political or economic reasons.
In the context of human rights, soft law can be a useful tool for states and non-state actors such as business organizations and NGOs. For example, the UN Guiding Principles for Business and Human Rights (UNGPs) set out the idea of corporate human rights due diligence (HRDD), which refers to a company's duty to carry out ongoing risk management to determine if its business practices could potentially adversely affect human rights. The UNGPs recommend that businesses undertake effective due diligence processes to identify, prevent, and mitigate any detrimental human rights impacts. This is a softer approach than creating binding obligations, and it allows businesses to adapt their practices before being mandated to do so by a state.
National human rights institutions, which typically have only soft advisory powers, can also play a role in addressing human rights issues. For instance, National Contact Points, established pursuant to the OECD Guidelines, can mediate and conciliate between parties involved in allegations of non-observance of the Guidelines, and make public recommendations. However, they cannot make binding decisions.
Soft law can also be important in human resource management-related matters that intersect with human rights, such as gender equality, diversity, and health and safety. In these areas, soft law instruments can be imposed by powerful stakeholders on their suppliers, and they often contain aspirational goals.
While soft law can provide flexibility and adaptability, some actors may prefer the certainty and enforceability of hard law. The terminology of soft law is also controversial in international law, with some practitioners questioning its existence or status within the legal system.
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Soft law and corporate social responsibility
Corporate Social Responsibility (CSR) is a form of soft law, which means that it is not legally required or enforceable. However, there is a growing trend internationally to move towards making CSR a legally enforceable hard law. This shift is driven by increasing consumer preference for social and environmental accountability, as well as a desire for accountability in all aspects of life, including the activities of oil and gas companies.
Soft law is flexible and has helped make the CSR approach more accessible to consumers, shareholders, and stakeholders. However, its flexibility can also be a challenge in developing CSR. In contrast, hard law is stricter and more binding, making it an effective way to enhance various factors in business, such as health and safety, natural resource sustainability, effective corporate governance, social responsibility, and climate protection.
The United Nations played a pivotal role in endorsing the "UN Guiding Principles on Business and Human Rights" ("UNGPs") in 2011. These principles established the first global standard for preventing and addressing adverse impacts on human rights linked to business activities. They apply to all businesses, regardless of size, and provide a legal framework of specific rights, duties, and causation. As a result, companies should have CSR programs that are "litigation-ready" when dealing with human rights issues.
Large multinational corporations (MNCs) are increasingly incorporating CSR into their standard terms and conditions and requesting their business partners to sign CSR-related supplier codes of conduct. MNCs are also holding their business partners accountable for CSR and ESG (Environmental, Social, and Governance) by using contractual and quasi-contractual practices. These practices are informed by broad norms derived from sources such as the UNGC principles, ILO standards, and the Universal Declaration of Human Rights.
While CSR is not legally required in the United States, some companies are voluntarily adopting it. The Corporate Human Rights Benchmark, which assesses corporate human rights performance, found that US oil and gas companies need to improve their human rights initiatives to meet the UNGPs and avoid future transnational tort liability.
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Soft law and international investment agreements
Soft law is a term used to describe agreements, principles, and declarations that are not legally binding. Soft law instruments are commonly found in the international sphere, and they include things like UN General Assembly resolutions. In contrast, hard law refers to legal obligations that are binding on the parties involved and can be legally enforced in court.
In the context of international investment law, soft law refers to non-binding agreements or principles that influence the behaviour of states and foreign investors. Soft law is flexible and allows for easy amendment procedures to comply with the ever-changing international legal regime. It enables quicker and more detailed agreements compared to binding treaty law because it is not subject to the same legal, financial, and procedural constraints. Soft law also limits the consequences of non-compliance since it does not specify any requirements or obligations.
The importance of soft law in international investment law has grown significantly, and states and international organisations often choose softer forms of legalization as superior institutional frameworks. Soft law plays a significant role in the formulation of international law by serving as a precursor to the development of binding rules or by interpreting vague or open-ended investment treaty provisions.
However, it is important to note that soft law is not readily enforceable. For example, in the context of corporate investments, soft law cannot impose binding decisions on allegations of corporate misconduct. Instead, soft law provides a framework for mediation and conciliation between parties involved in allegations of non-observance of guidelines, with recommendations on how to move forward.
In conclusion, soft law and international investment agreements have a complex relationship. While soft law provides flexibility and enables quicker agreements, it also lacks enforceability and does not carry the same weight as hard law in terms of legal obligations and consequences for non-compliance.
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Soft law and the UN
Soft law refers to quasi-legal instruments, such as recommendations or guidelines, that are not legally binding. It is often contrasted with hard law, which refers to legal obligations that are binding and can be enforced in a court of law. Soft law is particularly relevant in the international sphere, where it is used to denote agreements, principles, and declarations.
The United Nations (UN) frequently employs soft law instruments. For example, UN General Assembly resolutions are considered soft law. While they are not legally binding, they reflect the opinion or "general will" of states on a specific subject and carry significant weight and authority. The UN Guiding Principles on Business and Human Rights (UNGPs) are another example of soft law in the UN context. Adopted by the UN General Assembly in 2011, the UNGPs establish global standards for companies regarding human rights due diligence (HRDD) to prevent and address business-related human rights abuses. The HRDD sections of the UNGPs are non-binding, designed as a 'social' standard of conduct, with the expectation that they would be reinforced through a combination of soft and hard law initiatives over time.
The use of soft law in the UN context offers several advantages. Firstly, it encourages participation and fosters creativity and innovation in developing fields. For instance, the UNGPs emphasize the importance of inclusive stakeholder engagement, drawing from a diverse range of jurisdictions and UN regional groupings. Secondly, soft law provides flexibility and adaptability, particularly in rapidly evolving areas such as technology. It allows for the development of rules and standards without the rigidity and permanence of hard law. Additionally, soft law can serve as a stepping stone towards the eventual adoption of hard law. In the context of business and human rights, some states prefer to start with soft law approaches to gauge their effectiveness and build consensus before transitioning to legally binding frameworks.
However, the use of soft law in the UN also presents challenges. One of the main criticisms is that it allows states and entities to avoid legal obligations on critical issues. The non-binding nature of soft law can lead to a lack of coherence and fragmentation in the international system. Some argue that certain areas, such as economic competition, international security, and global commons issues, require the certainty and enforceability of hard law. Additionally, soft law instruments can sometimes lack clarity and coordination with existing legal commitments, leading to confusion and potential duplication.
In conclusion, soft law plays a significant role in the UN, particularly in the form of General Assembly resolutions and guiding principles. While it offers advantages such as flexibility and inclusiveness, it also faces challenges related to its non-binding nature and potential conflicts with existing legal frameworks. As a result, the UN often employs a combination of soft and hard law approaches, utilizing the benefits of each to address complex global issues.
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Soft law and the EU
Soft law refers to agreements, principles, and declarations that are not legally binding. Soft law instruments are commonly found in the international sphere, such as UN General Assembly resolutions. In the context of the European Union (EU), soft law refers to EU measures such as guidelines, recommendations, declarations, and opinions that are not binding on the member states.
Article 288 of the Treaty on the Functioning of the European Union distinguishes soft law from regulations, directives, and decisions, which are binding on member states. Soft law in the EU is often used when member states cannot agree on legally binding measures or when the EU lacks the competence to enact such measures. For example, the European Employment Strategy and the Europe 2020 Strategy include soft law employment guidelines that are not legally binding but are combined with hard law requirements in the Treaty on the Functioning of the European Union.
Soft law can still have legal effects and influence policy development. It can be a more flexible instrument for achieving policy objectives as it allows member states to voluntarily adopt policies they might be reluctant to implement if legally obligated. For instance, the EU has used 'action programmes' based on a Council decision to promote gender equality in the workplace, which is a form of soft law.
The use of soft law is also relevant in the business and human rights context. Some actors prefer soft law approaches as they provide flexibility and adaptability, especially when compared to the potential costs and commitments of hard law. Soft law can allow businesses to learn and adapt to new practices before they become mandatory. National Contact Points, for instance, are established pursuant to the OECD Guidelines to mediate and make recommendations, but they cannot make binding decisions.
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Frequently asked questions
Soft law refers to agreements, principles, and declarations that are not legally binding.
UN General Assembly resolutions are an example of soft law.
Hard law refers to elements of the legal framework that are legally binding, unlike soft law.
States may prefer soft law when they are unsure whether other states will keep their commitments. Soft law provides flexibility and adaptability until peer states are willing to make similar credible commitments through hard law.
Soft law can apply to non-corporates in the form of international agreements or domestic guidelines. For example, soft law can address human rights issues, which are a matter of public law, or environmental concerns, which may impact individuals and communities.
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