Article 38, paragraph 1, of the statute of the International Court of Justice (ICJ statute) lists the sources of international law. These include treaties, international customs, general legal principles recognized by civilized countries, judicial decisions and the teaching of high-quality public relations personnel. However, due to the development of international relations, especially the huge expansion of the activities of international organizations and the changes of the way in which countries and international organizations formulate public international law, it soon became clear that the rules not only in line with the legal model provided in Article 38 guide state behavior. In order to distinguish this new type of law, international lawyers refer to it as soft law in order to distinguish it from the hard law envisaged in the statute of the International Court of justice. In this paper, I will discuss some development and technical problems related to soft law. I will first discuss what constitutes soft law.
Although there is a lot of interest in the so-called soft law at present, Sir Joseph Goethe observed quite whimsically that the definition of soft law is almost related to writers. However, despite such doubts, it is still possible to give a practical description of the concept. In this regard, the view was expressed that the term soft law expressed a preference rather than the obligation of States to act or refrain from acting in a particular way. In international law, hard law or hard law is the obligation of one or more states to commit a responsible breach, regardless of the form of sanctions or penalties that may result from that responsibility. Soft law does not mean obligations, so it may violate the liability for breach of contract; on the contrary, soft law is a norm expressed by the international community, which at least wants the group of countries expressing this norm to comply with it, but states do not comply with their obligations.
Therefore, the rules of conduct involved in soft law are not legally binding (enforceable and sanctionable in the sense of international obligations), but they have legal scope according to their author’s intention and must be defined. Further in each case. There is no uniform standard of strength for such rules in terms of their legal scope, but they do have the fact that they are aimed at and have an impact on the acts of States, international organizations and individuals, but do not contain strict international legal rights and obligations. In international law, the generation of such state obligations cannot be satisfactorily captured in the old categories, so a separate category has been developed.
The concept of soft law has been strongly opposed by many international lawyers. According to this view, it is not advisable to talk about soft law in public international law for various reasons. For example, the view was expressed that these concepts would curb the will of States to implement or abide by the hard law; the concept itself was a classic example of contradiction; finally, soft law was seen as transcending the boundaries of international law and trying in vain to make international political relations too judicialized. However, despite these objections, international lawyers find themselves facing an unprecedented proliferation of international non-compliance instruments proposed by States and international organizations that aim or are affecting the conduct of States, in a way that international organizations or individuals allow, prohibit or prescribe.
The reasons for requiring the use of these unconventional instruments vary, but state practice undoubtedly shows that the list of sources of Article 38, paragraph 1, of the statute of the International Court of justice is inadequate. Treaty law does not apply to these non conventional instruments and cannot be worn under the authority of customary law. However, they cannot be correctly interpreted as not legally binding.
Therefore, soft method is developed to solve this problem. To describe activities that do not strictly comply with binding international law but have an important legal scope. However, soft law is not only a means to explain the phenomenon of state practice norms, but also a more important concept. The reason for its existence is that it is necessary to describe and define the legal effect of unconventional instruments regulating international practice.
In the shadow of legally binding and non legally binding, the status of soft law allows countries to use soft law tools for a variety of purposes. I’ll describe some of them below.
The way of using soft law varies from country to country, so it can’t be classified strictly. The only thing in common is that states and international organizations use them when they do not need or are unlikely to meet strict legal obligations. Soft legal instruments include the following:
A resolution adopted by or within an international organization. Such resolutions could declare representative rules of conduct for some or the entire international community, which could more precisely define and codify pre-existing state practice or serve as a preview of subsequent state practice. These resolutions can constitute soft law as long as the basic conditions for genuine international obligations have not been met by traditional means.