Understanding the hard/soft distinction in international law.

• Author: Pronto, Arnold N.

ABSTRACT

A common characterization employed in contemporary international law is that between "hard" and "soft" law. A determination that an instrument falls into either category carries with it a series of implications, including that pertaining to the legal consequence of noncompliance with the rules contained in the text. What is at times overlooked is the relatively common phenomenon of the two types of law coexisting, where hard rules provide the context or the limits (boundaries, ceilings, and floors), and the details are "filled-out" by soft rules. A full appreciation of the resulting legal picture requires not only a familiarity with both types of rules but also an understanding of how they relate to each other. This is explored on two levels: the relative "authoritativeness-deficit" of the distinction under international law, and the reflection that the ambiguity inherent in the distinction reveals not two, but four, possible outcomes.

TABLE OF CONTENTS I. INTRODUCTION II. PROBLEMS OF AUTHORITY AND SUBSTANCE A. Lawmaking Authority in Contemporary International Law B. The Codification-Progressive Development Analogue C. Expository Codification--A Comment on Technique III. PROBLEMS OF AMBIGUITY A. Hard-Hard B. Soft-Soft C. Hard-Soft D. Soft-Hard IV. CONCLUSION I. INTRODUCTION

In the contemporary narrative of international law, it is common to find analyses of the pedigree of instruments framed in terms of the hard/soft law dichotomy. The former concerns those texts adopted in a form that suggests the existence of a legal obligation, while the latter refers to those that are not recognized as being binding under international law. A determination that any one instrument falls into either category carries with it a series of implications, the main such implication being the legal consequence of noncompliance with the rules or norms contained in the text. In other words, the characterization suggests a certain intention on the part of the drafters and provides a hint as to their understanding of the legal and political context in which they drafted the instrument in question. It also allows for a range of assertions as to the normative nature of the text. That this is tolerated (sometimes even lauded) in international law is well known and accepted. It is merely a confirmation of the open-textured nature of international law, which (perhaps more than domestic law) allows the regulation of human activities through nonbinding law. While the focus herein will not be on an analysis of questions of compliance with international law (nor whether "soft law" is really "law"), it is worth restating the obvious fact that the notion of soft law challenges traditional conceptions of the role played by compliance in confirming the legal character of a rule.

However, in international law, formal compliance is sometimes not the intended goal. Instead, the function of the law may be to guide the action of states and other actors at the international level. Therefore, that such rules may not be formally "binding" is often not by fault but by design. It simply was not an issue of particular concern to the negotiators to secure a legal basis for compliance. Or, if it was a consideration, a cost-benefit analysis might have led to an assessment that a nonbinding approach would, in the aggregate, have a greater impact than a formally binding text (ratified by few). What is at times overlooked is the relatively common phenomenon of the two types of law co-existing, where hard rules provide the context or the limits (boundaries, ceilings, and floors), and the details are "filled-out" by soft rules. In such circumstances, a more nuanced analysis based on the subtle interaction between hard and soft rules is called for.

The fact is that a significant amount of the "law" regulating the activities of states undertaken in response to a disaster exists in a nonbinding form. (1) At the same time, the field is also characterized by the existence of several hundred bilateral, and a number of multilateral, treaties. (2) A full appreciation of the resulting legal picture requires not only a familiarity with both types of rules but also an understanding of how they relate to each other. A further reason for looking at the hard/soft dichotomy relates to yet another consequence of the characterization, namely what it suggests for the prospect of codifying essentially soft rules into hard law texts. The label of soft law typically carries with it assumptions as to the non-suitability for incorporation into a binding treaty. It is the view of the present writer that such understanding oversimplifies the prevailing position, precisely because it does not sufficiently take into account the complex legal picture that arises in the presence of existing hard law.

The suggested hypothesis is that such disconnect is not unique to International Disaster Response Law (IDR), but rather is a consequence of the lack of precision inherent in the hard/soft law characterization. This will be explored on two levels. First, it bears pointing out that the distinction has no formal basis in the law. Instead, it is merely employed as a descriptor of the law, with an attendant quasi-sociological analysis of the lawmaking process. Such "authoritativeness-deficit" will be explored, and some suggestions will be made as to how the distinction might be brought into line with more traditional descriptions of the law and lawmaking process. Some observations will also be made about the choice of soft law as a lawmaking technique.

The second question to be explored relates to the problem of the lack of granularity in the distinction. The binary form in which it is traditionally presented (binding vs. nonbinding) is misleading since the inherent ambiguity in the distinction reveals not two, but at least four possible outcomes. It is in the appreciation of the nuanced difference in such outcomes that a fuller understanding of the rules in question is to be found.

2. PROBLEMS OF AUTHORITY AND SUBSTANCE

   No attempt will be made here at reprising what has been written in the academic space (3) about the hard/soft dichotomy in international law. Suffice it to state that it has been accompanied by some hand-wringing and theorizing about what the distinction implies about the nature of international law. What is of equal if not greater interest is what it implies for the distribution of lawmaking authority in the international community. The distinction is of relatively recent provenance, as it does not appear in older textbooks and manuals of international law. Instead it seems to have emerged as a common way of describing the phenomenon of the proliferation of adoption of nonbinding ("soft law") texts, a technique resorted to primarily by teachers of international law to describe the phenomenon to their students. Its relative success is owed in no small measure to the tension inherent in the dichotomy: by presenting each type of "law" in contradistinction to the other, the basic features of each are brought more starkly into view. Yet, such intellectual arrangement suffers from lack of authority, over simplicity, and ambiguity.

   It is perhaps somewhat odd that a distinction that has gained such widespread currency in the narrative of international law enjoys, as indicated earlier, no formal basis. It is not recognized in the Statute of the International Court of Justice as one of the recognized forms of international law. (4) Nor does it feature in the standard description of the formation of customary international law. While the International Court has on occasion referred to texts that are, [strictly speaking, "non-binding," (5) it has not formally endorsed the distinction. In other words, the distinction does not carry with it any substantive implications. It makes no claim of precedence over other categorizations, and it is often resorted to merely because of its perceived usefulness in describing the types of law a reader might encounter.

   The usefulness of the hard/soft dichotomy should be distinguished from the advantages of adopting international law texts in nonbinding form. At first, this might seem counterintuitive. The point is that it is true that states have, in recent times, increasingly preferred to adopt international instruments in nonbinding form. Legally binding instruments are orders of magnitude more difficult to negotiate (especially in a world of nearly 200 states) and trigger complicated internal ratification processes with their attendant political ramifications. Binding instruments are also hard to get out of, partially implement, or even entirely ignore without legal consequences. Nonetheless, the predilection of states toward adopting nonbinding texts should not be confused with the hard/soft law distinction enjoying formal recognition in the law.

   Likewise, the perceived success of the phenomenon being described should...