Compliance with International Soft Law: Is the Adoption of Soft Law Predictable?

Introduction

The decision to implement international soft law maybe motivated by a number of different factors as noted by Ho (2002) the implementation of economic soft law, specifically in the case of the Basle Accord of 1998, appears to be driven by the strength of the underlying democratic system of governance in place within a particular jurisdiction affording credence to the democratic legalists theories of international law. While the extant research does appear to support this proposition, there appears to be little, if any, credence afforded to the interaction between democracy and government effectiveness and their impact on the implementation of international soft law. Artificial intelligence methods have been largely absent from discussions of international soft law implementation. This appears problematic and potentially inapt given the plausible interaction effects that exist between government effectiveness democracy and other macro-economic variables in determining the likelihood of soft law implementation.

The concept of soft law, pertains to quasi-legal instruments which have no formal legally binding capability, or where the enforcement capability is assumed to be weaker relatively speaking than the force that underlines traditional law, sometimes in this context referred to as hard law. While the term soft law is largely synonymous with discussions with international law, it may also be referred to when commenting on domestic legal and doctrinal matters. Herein, our focus remains on international law. An apt example of what may be described as soft law would include resolutions and declarations of the United Nations general assembly components of bilateral and multi-lateral treaties, such as codes of practice and other non-treaty obligations. It is nonetheless problematic identifying a consistent definition of soft law given the fervent debate that exists between those denying that such a legal paradigm exists and those that deem it an additional sphere of international law. Shelton (2000), offers the following guiding definition that soft law is in essence the normative provisions contained in non-binding texts. Arguably, the works of Baxter (1980), and Weil (1983), are seminal within the sphere of research. Baxter (1980), contends that soft law is representative of the different intensity of agreement that exists within the expression of international law. Weil (1983), responds to this assertion and argues for caution when seeking to derive concepts of relative normativity in international law. Shelton (2000), and Abbott & Snidal (2000), offer a unifying set of theses that serve as the conceptual framework for the present study. Specifically, Shelton (2000), outlines compliance with soft law through the analysis of a wide variety of non-binding legal instruments within a variety of domains. Abbott & Snidal (2000), contend that soft law exists by virtue of the weakening of a legal arrangement with respect to the obligations delegation and precision of said arrangement. Having accepted the existence of soft law, it is pertinent to understand what factors motivate the enactment of international soft law.

Guzman & Meyer (2010), offer a worthwhile summation of why soft law is employed by states. The authors advance for complementary explanations for why states employ soft law that seek to describe a much broader range of state behaviour than has been previously explained.