Hard Law and Soft Law : Myth and Reality

Presented by: Chandan PaswanM.PHIL/Ph.d

JNU, New Delhi

CONTENT• Introduction• Definition and salient features of hard & soft law• Explanation for soft law1. Characteristic of soft law2. Softness of hard law3. Centralized legalization4. Treaty-making approach 5. Instrumentalities of soft law• Multilateral environmental agreements ( Hard law /binding law)• Explanation for environmental treaties (hard law)• Hard law (MEAs) makes commitments credible• There are plethora of MEAs• Problems associated with MEAs• Conclusion

INTRODUCTION• International legal scholars often use the terms “hard” and “soft” to

describe certain international laws. If you're trying to understand international law, whether for school or because you want to better understand global events, it can be difficult to distinguish between hard law and soft law. As a further complication, since international law rests on the concept of the sovereignty of independent nation-states, no multinational agreement is either completely hard or completely soft. If you read the terms of a treaty or other international agreement, certain key elements can help you determine the degree of hardness or softness. Recognizing those elements helps you better understand how international law controls the actions of countries and their relations with each other.

DEFINITION A Definition of hard law.• In international law, "hard" or "firm" law is an obligation of a state or states for the breach of which it or they are

responsible, whatever form of sanction or penalty that responsibility may entail.

B Definition of soft law.• Soft law Sir Joseph Gold, in using the term, stated: "soft" norm is: soft law expresses a preference and not an

obligation that states should act, or should refrain from acting, in a specified manner

C Hard law compared to soft law• A. Hard Law (legally binding)• 1. Treaties (or conventions or agreements)• 2. Custom (Implicit Agreements)• 3. Generally recognized principles of law. [generally fills in gaps not already filled by treaty or custom] “They are

mostly used to identify basic rules of procedure..(e.g. evidence is admissible)[use of EIAs]. They are not to be confused with ‘principles’ of International Environmental Law which are contained either in treaties or which may be distilled from treaties…”)

• 4. Judicial decisions and the teachings of the most qualified

• B. Soft Law (sets standards of conduct but are not legally binding)

• 1. Declarations

• 2. Principles contained in Treaties such as “The Parties have a right to, and should promote sustainable development” from Article 3 of the Climate Change Convention

• 3. Recommendations

Explanation for soft lawCharacteristic of soft law• One of the favored methods of law making in the field of the environment is the adoption of hortatory,

inspirational, promotional or programmatic statement in the form of an instrument described, generally as declaration, conference statement or statement of principle

• where state are not yet ready to go for concrete commitments they prefer to go for politically convenient soft instruments.

• Time: the process of consensus building on a declaration or conference statement can be so arduous and time consuming. Many of these soft instruments provide bench marks and are invoked by the parties even as the regime evolves gradually.

• In this process the negotiating states try to build a basis for an evolving normative process through consensus on a hortatory (non binding) instrument.

• Here the intention of the negotiating state is to have elasticity in the interpretation that is politically convenient to them, as well as to retain the option of implementation at their own discretion and pace.

• Soft law begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision and delegation

• Here legalization is weak sometime absent but it cannot be termed as non-law.• Criticism by realists – in absence of independent judiciary international law is soft law• Normative perspective- danger of use of soft law prosper weil argues that increase use may

destabilized whole international normative system and turn into an instrument that can no longer serve its purpose.

continuedSOFTNESS OF HARD LAW• Apart from the instrumentality of declaratory statements by organs of intergovernmental organization and

multilateral conferencing, normative principles and statements can also be enshrined into multilateral environmental agreements (hard law)

• This might add complexity to the hard instrument, which is prima facie legally binding upon the parties • Such inclusion of hortatory principles or discretionary provision as a part of formal multilateral environmental

agreement do present an anomalous situation. In view of the resultant ineffectiveness of such an instrument it, in turn, “relegate them to the ranks of non-legal norms… notwithstanding their status. Thus a formal structure or form of a multilateral treaty instrument is not sufficient enough to ensure hardness or binding character of law

• When this type of situation arise• Due to lack of political will among negotiating states or • Lack of concrete scientific evidence or• Due to uncertainty• Say for Examples – VCLT 1969 does not make it prerequisite for international treaty to enunciate any specific

right and obligations. It merely requires international agreement to be in written form and governed by international law

• There are many example (in fact most of the recent MEAs are frame works) of incorporation of soft obligations in a formal multilateral treaty.

• CITES : this convention of international trade in endangered species has been one of the earliest example of this approach. In fact CITES contained endangered species listed in three appendices, which the parties could review form time to time. Such framework convention plays an important role in setting in motion a normative process, through an exhortatory(nonbinding) agreement, which is expected to evolved in due process

continuedCENTRALIZED LEGALIZATION• The process of centralization has taken various forms. Unlike the development of traditional international law, the pace of law

making in this sphere has been relatively faster.• In the absence of a central- law making institution in the environmental field, this task has generally fallen upon the general

assembly of the United Nations. The general assembly has, in fact played a crucial role in terms of convening global conference that, in turn, contributed significantly in the centralized law making. The 1972 UNCHE, the 1992 UNCED as well as the 2002 WSSD have been major mile stones in this respect.

• The Stockholm conference did not produced any international legal instrument, yet the Stockholm declaration has played an important role in the internationalization of environmental issue.

TREATY-MAKING APPROACH • In recent years states have preferred to go for such legal soft law- a multilateral environmental agreement which cannot be

enforced of its own. Such multilateral legal instrument, though known as law making treaties warrant further action on the part of the state parties to realize their basic objectives. This has been described as frame work convention protocol approach in treaty making.

INSTUMENTALITY• The soft law norms have their own significance at the normative level. Differences do persist as regards their precise effect and

their evolution into hard law. States increasingly follows them, as they allow gradual crystallization of law proper on the subject.  • Instrumentalities for framing of soft law instruments are varied both at intergovernmental and non-governmental forums for

adoption of soft law are as follows:• General assembly• Multilateral conferencing • Intergovernmental organization• Normative principles• Declaratory statements by organs like UNESCO, WHO, IMO, WMO etc.

Soft Law in Environmental Law

UN General Assembly UN General Assembly resolutions"A General Assembly resolution may contribute

to the development of international law … if the resolution gains virtually universal support,if the members of the Generally Assembly share

a lawmaking or law-declaring intentand if the content of that resolution is reflected in

general state practice."

Soft Law in Environmental Law

A state may be unwilling to enter into a highly legalized agreement because the law requires unacceptably large concessions. Also, the state may resist the agreement without large concessions from other states. As a trade-off, states may be willing to make smaller concessions in trade for a softer law. It is a compromise deal.

The Stockholm Conference (June 1972) that came to be convened by the UN General Assembly launched a formal process of institutionalization of international environmental cooperation.

However, once a state becomes party even to a soft law, it becomes trapped in a set of relationships with other states. Over time, the strength of these relationships may push a state into actions or commitments that would have been unacceptable at the outset. A commitment that would have seemed unreasonable before the agreement may seem acceptable (even if not quite desirable) later on say for example

Principle 21 of the Stockholm Declaration declaring no state may "cause damage to the environment of other States" has "evolved into international customary law

"States have, in accordance with the Charter of the United Nations and the principles of international law, …the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

Principle 24 of the Stockholm Declaration concerning the "duty to cooperate" "also appears to have acquired this status" of a customary rule of international environmental law.

Principle 24:"…Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all sphere, in such a way that due account is taken of a sovereignty and interest of all states.”

STOCKHOLM

Rio de Janeiro

• . RIO DECLARATION ON ENVIRONMENTAL AND DEVELOPMENT

• The Rio Declaration on Environment and Development., adopted at the 1992 UN Conference on Environment and Development, is one of three nonbinding instruments that emerged in Rio de Janeiro. The other two are Agenda 21 and the Forest Principles.

• The Rio Declaration of 1992 consists of a preamble and 27 principles.

• According to Prof. Dr. B.H. Desai the instruments adopted in Rio were non binding in law and were couched in such vague and uncertain language that they entailed no legal, political, or even moral obligation.

• It seems that due to inherent vagueness in this general norm was subject to further fine tuning to be done by the states in determining specific criteria for judging the resultant damage. This was reflected in principle 22, which called on state to “ develop further the international law regarding liability and compensation for the victim of pollution and other environmental damage” caused within the jurisdiction or the control of states in areas beyond their jurisdiction.

• Principle 2 concerns transeboundary effects.

• Principle15 concerns the formulation of then-emerging principle of the precautionary principle.

• Principle 17 the emerging “polluter pays” principle, requires internationalization of environmental costs.

FOUR QUESTIONS IN THE CONTEXT OF INTERNATIONAL LAW

Q . Does the Rio declaration on environmental and development constitute international law?

Ans. No, not as hard law but it is considered to be soft law, and it has the political endorsement of more than 170 governments participating in the Rio conference.

but still, the “Rio declaration" is very important, containing many key principles relating to the environment and development, including sustainable development.

6. Rio's legally binding instruments

“The legally binding instruments that emerged in Rio were two international conventions – (i) the UN Framework Convention on Climate Change and (ii) the Convention on Biological Diversity --both of which were signed in Rio and

subsequently entered into force.”

III. D. MULTILATERAL ENVIRONMENTAL AGREEMENTS ( Binding law)

CHARACTERISTICS OF ENVIRONMENTAL TREATIES (Hard law)

• Prof. Dr. B.H. Desai describes few important features of environmental treaties:

• MEAs have emerged as one of the best example of institutionalized intergovernmental cooperation to address specific environmental issues

• And had suggested that instead of using the traditional method of resorting to the development of customary norms, states resort to treaties for the sake of, among other things, convenience, certainty of the law, and requirement of contingencies of a specific issue.

• 1 Sui generis treaties : this sui generis law making process has started making inroads into the cherished domain of sovereignty jurisdiction of the states. Thus the notion of sharing of sovereignty

• 2 Softness of hard law: these (UNFCCC/ CITES) frame work conventions could best be described as having a hard shell with soft belly because of the softness of the language used in the instrument as well as the intention of the states parties that these frameworks do not create conventional hard obligation

continued• CITES : This convention of international trade in endangered species has been one of the

earliest example of this approach. In fact CITES contained endangered species listed in three appendices, which the parties could review form time to time. Such framework convention plays an important role in setting in motion a normative process, through an exhortatory(nonbinding) agreement, which is expected to evolved in due process

• An emphasis on national implementing measures being taken by the states parties;• The creation of international supervisory mechanisms to review compliance by states parties;• The use of action plans for further measures; The creation of new institutions or the utilization of already existing ones to promote continuous

cooperation; The use of framework agreements; and• Interrelated or cross-referenced provisions from other environmental instruments.

Hard Law (MEAs) Makes Commitments Credible

• 1 Limiting Self-Serving Interpretations• When a law is more precise, parties have less ability to interpret the provisions according to their own interests.

Also, when interpretation is delegated to an independent third party, parties have even less ability to interpret the law according to their own narrow interests.

• 2 Increasing the Capacity for Enforcement• In some cases, law may fix consequences for legal violations. For example, the WTO may authorize

countermeasures against a state that does not live up to an agreement.• Laws may be able to draw on some forms of centralized enforcement, like military or economic sanctions. For• 3 Shirking on hard law increases the costs of violation by damaging the state's reputation in the international

community as well as at home• 4. Creating Legitimacy- Following the law is broadly accepted as simply the right thing to do. A state cannot

simply break a law without ample justification.• 5. Emphasizing the Rule of Law• Hard law subjects parties to procedural rules that regulate the ways that they can make arguments and justify

their actions. Procedural rules, rather than bare self-interest or the exercise of power, determine outcomes.• Sources of hard law:1. Treaties (also known as conventions or international agreements)2. United Nations Security Council Resolutions3. Customary International Law

UN Security Council

UN Security Council ResolutionsUnlike UN General Assembly resolutions, UN Security

Council resolutions adopted pursuant to Chapter VII of the UN Charter are "legally binding on all member states of the United Nations."

Chapter VII is entitled "Action with Respect to Threats of Peace, Breaches of the Peace, and Acts of Aggression."

There are Plethora of MEAs1. The UNEP Global Judges Symposium “Status” lists 5 Multilateral Environmental Agreements to be ratified:

1. Amendment to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,

2. Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal [now ratified],

3. Kyoto Protocol to the United Nations Framework Convention on Climate Change [now ratified],4. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and

Pesticides in International Trade (PIC) [now ratified], and 5. Stockholm Convention on Persistent Organic Pollutants (POPs) [now ratified.]

2. UNEP’s Global Judges Symposium “Status” lists 13 Multilateral Agreements which have been ratified but need assistance in implementation:

1. Convention on the Conservation of Migratory Species of Wild Animals,2. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),3. Convention on Biological Diversity,4. Cartegena Protocol on Biosafety to the Convention on Biological Diversity,5. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,6. Vienna Convention for the Protection of the Ozone Layer, (continued on next slide)

continued7. Montreal Protocol on Substances that Deplete the Ozone Layer,8. United Nations Framework Convention on Climate Change (UNFCCC),9. UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or

Desertification, Particularly in Africa (UNCCD),10. UN Convention on the Law of the Sea (UNCLOS),11. Convention for the Protection of the World Cultural and Natural Heritage,12. Convention on Wetlands of International Importance Especially as Waterfowl Habitat (RAMSAR),

and13. Convention on Access to Information, Public Participation in Decision-Making and Access to

Justice in Environmental Matter (AARHUS).

3. Beyond this list of Multilateral Environmental Agreements from UNEP Global Judges Symposium, the following agreements dealing with nuclear issues are relevant to the protection of the environment:

1. Vienna Convention on Civil Liability for Nuclear Damage 1963;2. Treaty on the Non-Proliferation of Nuclear Weapons (1968);3. Convention on Early Notification of a Nuclear Accident (1986);4. Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986).

PROBLEMS ASSOCIATED WITH MEAs

• PROBLEMS ASSOCIATED WITH MEAs

1. GOVERNANCE

• There are “more than 500 multilateral environmental agreements…, more than a dozen international agencies share environmental responsibilities, and yet environmental conditions are not improving across a number of critical dimensions.”

• 1. GOVERNANCE--Scattered financial mechanisms across the Global Environment Facility, UNEP, the World Bank, and separate treaty-based funds such as the Montreal Protocol Finance Mechanisms.

Ex - “UNEP does not possess executive powers; instead, its primary function is to monitor and coordinate environmental governance, which includes engaging in partnerships with other intergovernmental and non-governmental organizations.

2. lack of public participation. When governments are reluctant to complain about another government’s failure to comply with an environmental standard established in an MEA, people need to speak up, perhaps through an environmental NGO. Our future depends on public vigilance!

3. Lack of environment compliance indicators-- measuring and reducing pollution--measuring improved environmental conditions such as water quality

4. RATIFICATION OF TREATIES- -Problems• “Some [countries] have a two-step procedure wherein a treaty may become binding under international law,

but years may pass before appropriate implementing domestic legislation is enacted. The case of Nepal provides an example.”

CONCLUSIONIs Harder Law Always Better? Each form of law has its benefits and its drawbacks. In some cases, the benefits of hard law may outweigh the costs.

In other situations, a law that is less legalized on one of more of the dimensions (thus softer) may be preferable.Also, whether harder or softer law is “better” depends on the perspectives of the different actors. In a particular issue

area, some states may prefer harder law, while others may prefer a softer law.Is Soft Law Simply a Stepping Stone to Hard Law?Soft law is not merely law that has not “hardened” yet. Soft law may become more legalized over time. However, it is

not necessary that it do so. It may be in the interests of the parties to keep to a less legalized relationship.Harder law may have particular benefits, but softer law has benefits as well. The benefits of softer law may be lost if

the law becomes harder. Sometimes softer law may be in everyone's best interests.

What can I do?Think global, act local