Skip to 0 minutes and 8 seconds States have used different tools to manage their common affairs. Traditionally, they have resorted to international treaties. But more recently, they are resorting more and more to what is labelled soft law– meaning codes of conducts, standards – that actually don’t have a legally binding effect on states. Today, I’m going to ask my colleague, Nico Krisch, Professor of international Law at the Graduate Institute of International and Development Studies, to tell us what are the advantages of going through a soft law approach. There are different advantages for different actors.
Skip to 0 minutes and 45 seconds In a sense, you have traditionally, even sort of in the classical State model, States may have wanted to use soft law in order to build up a position that could then develop into a hard law in the future. A great example is the Universal Declaration on Human Rights, which was adopted as a General Assembly resolution in the first place, and then led the way to the hardening into treaty obligations in the binding covenants in the 1960s.
Skip to 1 minute and 13 seconds But often, you can also use it for actors that don’t have the resources to really muster international treaties to create regulatory tools in areas that normally fly under the radar screen of the great politics of treaty making, say in the regulation of International Banking. And that is open to not only diplomatic actors in the global scene, but also regulators, for example, who will want tools that are more flexible, that are easier to create, also easier to change than you would have with hard law mechanisms that typically create significant thresholds. So you see, different actors may resort to different tools. States may have more choices between hard and soft law. Non-State actors may resort to softer law.
Skip to 2 minutes and 4 seconds But in the end, so can we envisage soft law as the terminal state? So it’s not only a process to go to hard law, it’s not because we can’t use hard law, but could States decide in some domains only to resort to soft law because it’s simply better than hard law? Absolutely. In many areas, you don’t necessarily need hard law in order to create rules for a given area. If you can create the compliance mechanisms, the conditions under which the relevant actors follow the rules, you don’t necessarily need hard law.
Skip to 2 minutes and 37 seconds So say the Basel Committee on Banking Supervision creating rules for capital adequacy of banks and other areas that have to do with banking, it’s not really necessary for them to create a treaty. In fact, it will often be more problematic to have a treaty in the area because of the sovereignty costs the treaty would imply and the inflexibility that it creates. So having a soft law model through the Basel Courts in the case of the Basel Committee is in many ways superior to hard law solution.
Skip to 3 minutes and 8 seconds And we have seen this going on for several decades now with considerable success, also less successful in phases, but nevertheless, that’s a similar thing as we would expect with hard law and regulation in general. So in some areas, we wouldn’t need hard law at all. So different areas call for different solutions. You mentioned here banking and in contrast to human rights solutions. My last question is, so by deep down as a lawyer, isn’t soft law a kind of difficult solution to accept, as given it has no legally-binding effect? Lawyers tend to be hesitant to accept it. But on the other hand, you can understand it also as a kind of different form of law.
Skip to 3 minutes and 56 seconds It’s often seen as a less than hard law. But at the same time, it’s often the tool that applies to a different scope of actors than hard international law would apply to, say in the banking example I’ve given, through banking regulators in different countries, rather than a broader sphere of traditional actors, and courts, and the like. But we might understand it as a kind of law that is created in those more limited circles for different actors with different purposes. And they can be State regulators, governments, but it can also be non-State actors. So, say, the OECD guidelines for multinational enterprises– difficult to make a hard law instrument out of this that would bind companies directly with the supranational effect.
Skip to 4 minutes and 46 seconds But it’s possible in a soft law instrument that then has implementation mechanisms through institutions like National Contact Points that can bring about compliance in a way that we would find uneasy in a treaty context. So I think, for lawyers, it requires a bit of a shift in perspective, and an understanding of that in different areas of global governance, you simply see a variety of regulatory tools, some of which are closer to traditional law, some of which are further away. But we probably have a kind of continuum between those poles, rather than an either or distinction. Thank you. Thanks.
The advantages of soft law
Biography of speaker
Nico Krisch is professor of international law at the Graduate Institute of International and Development Studies in Geneva. He is an international lawyer with a particular interest in the legal structure of global governance, the politics of international law, and the post-national legal order emerging at the intersection of domestic, transnational and international law. He joined the Institute in 2015 from the Barcelona Institute of International Studies where he was a research professor of the Catalan Institution for Advanced Studies. Previously, he had been a professor of international law at the Hertie School of Governance in Berlin, a senior lecturer at the Law Department of the London School of Economics, and a research fellow at Oxford University’s Merton College, at New York University School of Law and at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. He has also been a visiting professor at Harvard Law School.
Originally from Germany, he holds a PhD in law from the University of Heidelberg. His 2010 book, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP), was awarded the certificate of merit of the American Society of International Law.
His most recent work focuses on the concept of authority in global governance, on the changing foundations of international law ‘beyond consent’, and on the ‘interface law’ that governs the relation between different spheres of authority in the global realm.
Acronyms used in the video:
- OECD: Organisation for Economic Co-operation and Development
© The Graduate Institute, Geneva