Agenda 21, Commission, European Commission, European Employment Strategy, European Union, European Union Member States, Hard Law, International Law, Member States, Soft Law, Treaties of the European Union, United Nations
Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreement and the strategic situations that produce them.
First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance.
Second, under what we term the “loss avoidance” theory, moving from soft law to hard generates higher sanctions which both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations.
Third, under the “delegation theory,” states choose soft law when they are uncertain about whether the rules they adopt today will be desirable tomorrow and when it is advantageous to allow a particular state or groups of states to adjust expectations in the event of changed circumstances. Moving from hard law to soft law makes it easier for such states to renounce existing rules or interpretations of rules and drive the evolution of soft law rules in a way that may be more efficient than formal renegotiation.
Fourth, the concept of International Common Law (“ICL”), which is defined as a non-binding gloss that international institutions, such as international tribunals, put on binding legal rules. The theory of ICL is based on the observation that, except occasionally with respect to the facts and parties to the dispute before it, the decisions of international tribunals are non-binding interpretations of binding legal rules. States grant institutions the authority to make ICL as a way around the requirement that states must consent in order to be bound by legal rules. ICL affects all states subject to the underlying rule, regardless of whether they have consented to the creation of the ICL. As such, ICL provides cooperation-minded states with the opportunity to deepen cooperation in exchange for surrendering some measure of control over legal rules.
These four explanations of soft law, and in particular the theory of ICL, provide a firm justification for the coherence of soft law as an analytic category. They demonstrate that there are a range of non-binding international instruments from which legal consequences flow, just as in the domestic setting non-binding documents such as legislative committee reports often have legal consequences when, for example, used to interpret binding rules. Moreover, the theories offered in this paper explain the circumstances under which this quasi-legal characteristic of soft law will be attractive to states.
EU – Soft law
Soft law is the term applied to EU measures, such as guidelines, declarations and opinions, which, in contrast to directives, regulations and decisions, are not binding on those to whom they are addressed. However, soft law can produce some legal effects.
It is important to distinguish soft law’s lack of legally binding effect from its potential impact in practice. It is claimed that soft law may impact on policy development and practice precisely by reason of its lack of legal effect – rather, because it exercises an informal ‘soft’ influence through, for example, the demonstration effects of pilot projects, which illustrate possibilities and exert a persuasive influence. Member States and other actors may undertake voluntarily to do what they are less willing to do if legally obligated. Soft law, therefore, is sometimes presented as a more flexible instrument in achieving policy objectives.
In reality, however, soft law tends to be used in the EU context where Member States are unable to agree on the use of a ‘hard law’ measure, which is legally binding, or where the EU lacks competence to enact hard law measures. The Member States and EU institutions are thus able to adopt EU policy proposals, while leaving their implementation optional for those Member States who do not wish to be bound. They are thus a standing temptation for the Commission when faced with resistance from some Member States, which threatens to block policy proposals.
At the same time, adoption of soft law measures may encourage reluctant Member States to consider and eventually adopt policies and strategies, which are resisted when presented in the form of binding legal obligations. For example, the Commission has made extensive use of ‘action programmes’ to promote equality between women and men in the workplace, based on a Council decision establishing a four-year programme on gender equality for 2001-2005 (Decision 2001/51 ). The European Employment Strategy implemented through the open method of coordination combines soft law employment guidelines, which do not have legally binding effect, with the hard law in Article 148 TFEU, which requires that Member States ‘shall take [the Guidelines] into account in their employment policies’.
Equally, ‘soft law’ measures such as the non-legally binding Community Charter of the Fundamental Social Rights of Workers of 1989 have had a substantial impact in putting pressure on the Commission to propose and the Member States to adopt directives, which might otherwise not have been contemplated. The Preambles to Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship and Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time contain references to the 1989 Community Charter, thus transforming the relevant provisions of the Community Charter into interpretative aids for the European Court of Justice when it comes to interpret the directives.