Hard Law and ‘Soft Law’: Options for Fostering International Cooperation
Substantial literature has emerged in the past two decades on the meaning of “soft law”, its purposes, and its consequences for effective international cooperation. This paper argues that the distinction between “hard law” and soft law is not settled in the literature. One definition of soft law is “normative provisions contained in non-binding texts.” Some scholars argue that vagueness or imprecision in provisions—what in WTO parlance has sometimes been characterised as constructive ambiguity—is also a form of soft law. Yet others distinguish among notions of obligation, precision, and delegation as the dimensions around which the “softening” of law may occur. Some commentators seem to hold the view that any suggestion of murkiness in justiciability amounts to legal failure. Others see softening as a pragmatic response to the limits of hard obligations among sovereignties.
Implicit in that discussion the idea often lurks that soft law is a second-best alternative to hard law. However, it has been pointed out that hard and soft law can be alternatives, complements, or antagonists. This paper identifies examples of all three in the discussion that follows. The overarching question it seeks to answer here is whether the quality and content of international trade cooperation can be improved through additional initiatives—housed within the WTO’s institutional framework—that do not rely on legally enforceable obligations. The interest in doing this is perhaps most easily captured by the observation that a further prolongation of 15 years of WTO negotiating stasis under the Doha Round threatens the integrity and relevance of the institution. This puts a premium on creative thinking about how governments may be enticed once again to find a greater measure of common purpose.