Hard Law and ‘Soft Law’: Options for Fostering International Cooperation

Substantial literature has emerged in the past two decades on the meaning of “soft law”, its purposes, and its consequences for effective international cooperation. This paper argues that the distinction between “hard law” and soft law is not settled in the literature. One definition of soft law is “normative provisions contained in non-binding texts.” Some scholars argue that vagueness or imprecision in provisions—what in WTO parlance has sometimes been characterised as constructive ambiguity—is also a form of soft law. Yet others distinguish among notions of obligation, precision, and delegation as the dimensions around which the “softening” of law may occur. Some commentators seem to hold the view that any suggestion of murkiness in justiciability amounts to legal failure. Others see softening as a pragmatic response to the limits of hard obligations among sovereignties.