Skip to 0 minutes and 7 seconds States have used different instruments to manage their common affairs. They have resorted to treaties, often called hard law, which create legal obligation. They also created softer instruments, standards, code of conducts, which have no legal implication. When should they use hard law versus soft law? Is there any domain where they should prefer hard versus soft law? So those are some of the questions that I’d like to actually ask my colleague, Andrew Clapham, professor of international law here at the Graduate Institute of International and Development Studies. So Andrew, among all of these tools, what would be the pros of using hard law? There will be some circumstances when you have to use it.
Skip to 0 minutes and 48 seconds For example, if you want to have the law enforceable in a court of law, the judges are only going to apply binding law. If you want to ensure that there are sanctions against a state for having violated the law, the state is going to expect that it’s a hard law instrument. Having said that, of course, often you will have to use a mix because the hard law won’t provide the detail that you need to resolve the case. So most cases will involve not just the treaty, but also the soft law instruments that you’re alluding to. Could you give us specific examples of this mix of hard and soft law?
Skip to 1 minute and 24 seconds Well, for example, in my own work on human rights, if some demonstrator got shot at a demonstration, the hard law would say everybody has the right to life. But you would probably need to have a soft law instrument like the code of conduct for law enforcement officials or the UN principles on the use of force, which would tell you that somebody’s life could only be intentionally taken if they were threatening somebody else’s life. Or the law enforcement officer would have to issue a warning, or only certain types of weapons could be used, and so on. All of that would be in the soft law. The hard law would be simple. It would just say, everyone has the right to life.
Skip to 2 minutes and 0 seconds An interesting remark here is the blending of soft and hard law, and it will be very interesting to see how the example applied here in a specific context, travelled to other contexts. But in the end, if you have to choose one of the two, which one is the most necessary, hard law or soft law or neither? I think it could depend on the context. In some cases, states are not going to be ready to adopt a treaty and the hard law that you’re referring to. So in order to make progress, you might be able to get a soft law instrument that states might feel more comfortable with for a while. And they could see how things develop.
Skip to 2 minutes and 34 seconds There might be a situation where things are moving quite fast– I don’t know, to do with environmental protection or pollution or something– and that time is not ready to fix something black and white. You might want to have a softer standard that could still encourage people to behave in a certain way, but wouldn’t give rise to penalties and court cases and so on. But as a lawyer, in the end, should we always try for hard law? Not necessarily, no. Because best might be the enemy of the good. For example, on the death penalty.
Skip to 3 minutes and 6 seconds If I tried to get a treaty which abolished the death penalty for every single state in the world, and to get them all to ratify it, it’s not going to work. But if I wanted to have a soft law instrument which said pregnant women shouldn’t be executed, for example, you might be able to get consensus on that. And you might be able to make a little bit of progress. To do the same thing through a treaty might not work. You might have to go through parliaments. Parliaments might reject it. Parliaments might not care, and so on. So I think it does depend on the context. And some of the most controversial areas are often better resolved through soft law.
Skip to 3 minutes and 42 seconds So the result is a bit mix. We need soft law. We need hard law. How we’re going to sort this out will actually depend in different context. A very last question, Andrew. But if still you had more power, where would you like some harder law to be actually adopted in international relations? That’s a good question. In my own areas, some of the things where there are gaps relate to, for example, detention in civil war. It’s not very regulated. There’s a lot of confusion. The ICRC and some states would like there to be a treaty. At the moment, the political context is that it’s unlikely that states will agree that.
Skip to 4 minutes and 23 seconds So my prediction is there will be a soft law instrument, and we won’t get a treaty. But a soft law instrument is better than nothing because it tells the army how to behave, and rebels might choose to apply it, even if they’re not legally bound to. Thank you.
When should hard or soft law be used ?
Biography of speaker
Andrew Clapham is professor of international law at the Graduate Institute of International and Development Studies in Geneva. Prior to coming to the Graduate Institute in 1997, he was the representative of Amnesty International at the United Nations in New York. Andrew Clapham has worked as special adviser on corporate responsibility to high commissioner for human rights Mary Robinson, and adviser on international humanitarian law to Sergio Vieira de Mello, special representative of the UN secretary-general in Iraq.
Acronyms used in the video:
-ICRC : International Committee of the Red Cross
© The Graduate Institute, Geneva