Hard and Soft Law in International Governance
Hard and Soft Law in International Governance (DOI: 10.1162/002081800551280) was written by Kenneth Abbott and Duncan Snidal, and published in International Organization volume 54 (2000).
The authors discuss soft law and hard law. They suggest that the differences lie in three dimensions:
- obligation
- a hard law is binding
- precision
- a hard law is either precise or has an authority that can make it precise
- delegation
- a hard law delegates authority to interpret and immplement
Notation
A hard law is notated as [O,P,D]. A soft law is relaxed in at least one of these three dimensions. The notation used recognizes three measurements on each dimension: an uppercase letter for full legalization, a lowercase letter for moderate legalization, and a dash for low legalization. For example, a law with reduced precision (by their definition a soft law) would be notated as [O,p,D]. In general, this will be used to communicate where the authors argue their assumptions about the 'hardness' of law can be weakened.
Frameworks for International Law
The authors argue their study is relevant to both rationalists and constructivists.
- The former think about international law as contracts driven by structural incentives to reduce transactional costs between state actors.
- The latter think about international law as compacts reflecting common norms or internationalization of new norms.
- All actors use legal basis in their arguments, regardless of intention or how those actors perceive the laws.
- Actors motivated by structural incentives (i.e. state actors) use normative arguments, and actors motivated by social causes (i.e. NGOs) use rational arguments.
Laws and legal institutions (attempt to) hold authority through structural incentives and through appeal to norms of obedience to rule of law.
Role of International Law
International law makes commitments more credible.
- Violating such a law has costs in the international legal regime, even if just in terms of reputation.
Building a law out of an existing legal institution (e.g. the UN) enhances these costs.
- International law can easily become domestic law.
International laws on torture are now customary law applicable in U.S. courts.
Such an adoption furthers the credibility of the law.
- International laws are also used to make domestic commitments. Violations can cause resultant domestic policies to fall apart.
International law reduces transaction costs.
- Even with no delegation of authority, a law specifies rules, norms, and expectations so that later laws can build from them.
International law augments existing sociopolitical interactions.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was not the only institution, actor, or interested party involved with sanctioning Serbia. But all other interactions then happened in the context of an ongoing prosecution.
International laws that delegate do not need to be 'complete'. They effectively defer precision for the interpreting authority.
In almost all of these dimensions, hard laws are preferable to soft laws.
Role of Soft International Law
In comparison to hard laws, soft laws have some advantages in certain circumstances.
- In issue spaces where it is difficult to build consensus or prohibitively expensive to specify a precise contract, soft law allows for progress in the form of laying groundwork.
The United States sought to codify international law similar to the Foreign Corrupt Practices Act in the 1997 OECD convention. This was met with significant resistance, and the law was downgraded to a non-binding recommendation, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
The IAEA only makes recommendations.
- In issue spaces where concerns of sovereignty dominate, soft laws can be more acceptable.
- Significant overlap with above category, e.g. the IAEA.
The United States and the ICC.
This is a complex interaction. A government that is uncertain about its domestic longevity, or activists who have more international support than domestic support, may enter into harder international law so as to constrain rival domestic parties.
- In issue spaces where there is significant uncertainty, soft law allows for agreements based on current understanding that can be walked away from if information changes.
- For bargains involving multiple issue spaces, soft law allows for compromise in a contentious space that will not hold up progress in the other spaces.
The CoCom was replaced by the much softer 1996 Wassenaar Arrangement, but it importantly specified the controlled items and targeted states that the United States wanted, with twice as many signatory states.
Role of Soft International Law for Non-State Actors
By the pluralist framework, an activist NGO will always prefer hard law. No matter their intentions, they are less capable than a rival state to enforce compliance with an international law. By the same logic, a 'resister' NGO will oppose hard laws.
By the public choice framework, government officials aggregate the non-state actors' preferences when building a platform/coalition. They may use hard laws to extract personal benefits or as part of their platform, but generally soft laws ought to be preferred as they enables more flexibility with strategy.
A statist framework suggests that soft laws are the only possible laws in several issue spaces.