There is a difference between soft law and hard law.
International legal scholars often use the terms hard and soft to describe international laws.It can be hard to distinguish between hard law and soft law if you are trying to understand international law.Since international law considers the sovereignty of independent nation-states to be paramount, no multinational agreement is completely hard or soft.If you read the terms of a treaty, certain key elements can help you determine the degree of softness.Understanding how international law controls the actions of countries and their relations with each other is helped by recognizing those elements.
Step 1: Do you know the type of document?
There is a simplistic distinction between soft law and hard law.There is a debate over whether an agreement that is not legally binding can be called a law.Some agreements are considered hard law.Treaties are an example of a hard law agreement.If a country has national laws that conflict with a treaty, they are obligated to change them.The U.S. considers treaties binding both domestically and internationally.Congress passes federal law after the Senate ratifies a treaty.The UN Security Council has the power to bind all UN members under the UN Charter.
Step 2: Determine the degree to which the agreement is legally binding.
Depending on other factors, an international agreement probably is a harder law.Since international contracts advance the interests of the countries that sign them, they may have little motivation to break the contract.The agreement may not have a lot of legal language.Sometimes treaties that deal with human rights are called "covenants." These agreements are legally binding to the same extent as treaties, although they may lack centrally enforced legal obligations.A country may sign a treaty and lodge a formal reservation.The legal obligation of that country is decreased by the reservation.International agreements that are not legally binding are soft law.Sometimes these agreements contain escape clauses that allow the countries signing them to declare a common commitment to certain principles while retaining their own sovereignty and independence.
Step 3: There are still non-binding agreements that shape countries behavior.
Regardless of whether an international agreement is legally binding, if a large number of countries are on board with its principles, they may exert political pressure on other countries to comply.Some international law is binding on some countries but not others.A decision by the European Court of Human Rights is only binding on the countries involved in the case.The opinion of another court or international organization may be swayed by that same decision.Although the countries disagree on the particulars, soft law may set forth broad principles on which there is multinational agreement.The foundation for harder agreements can be found in these softer agreements.Domestic legislation that complies with the overall thrust of the treaty may be adopted by a country that agrees with a treaty in principle.
Step 4: It is important to look for detailed and precise language.
A harder law has a high degree of precision, while a softer law uses more vague generalities or appeals to ideals.Describing commitments in precise terms ensures participating countries understand the limits of their obligations and prevents self-serving or opportunistic behavior in the future.Specific language is used in outlining conditions or exceptions to obligations.One country could use a loophole to undermine the purpose of the agreement.
Step 5: Distinguish words that create duties from those that describe ideals.
It is possible that someone is allowed to do something if you use the words "may" or "can".There are demands or obligations that participating countries must comply with.The agreement usually applies sanctions to countries that don't fulfill their obligations by a certain date.There are a number of things that participating countries can do within the confines of the agreement, but they don't have to do anything in particular.If the agreement includes promises from participating countries to investigate an issue or conduct feasibility studies within a period of time, but does not require the implementation of any concrete measures, these are soft law provisions.
Step 6: Understand how the agreement defines key terms.
The language used in international law documents will have to be interpreted by diplomats, heads of state, and other government or industry leaders.The length and specificity of definitions are important in determining the relative softness of the law.Softer laws leave broad terms open to interpretation, while harder laws contain extensive descriptions of what is being regulated.The European Union's directive defining allowable ingredients in fruit jams, jellies and similar spreads runs 12 pages and is an example of a lengthy description in hard law.Some hard laws have more detailed definitions.What constitutes "inhuman and degrading treatment" is one of the key terms left by the European Convention on Human Rights.This allows national leaders to deal with situations they couldn't have contemplated when they drafted the agreement.Defining a term as narrowly as possible limits the ability of countries to argue for a self-serving interpretation in the future.As long as they all agree on the same concept, countries may build a softer law with the intention of allowing differing interpretations to coexist.
Step 7: Who is responsible for interpreting the agreement?
The authority for interpretation of the agreement is usually delegated to an independent third body.Most international organizations have independent bodies that make binding interpretations and settlements of disputes.The 1982 Convention on the Law of the Sea can be used to resolve disputes between countries.The decisions of the international courts are usually binding on the parties involved in the dispute.
Step 8: Determine what mechanisms are included in the agreement.
The interplay between international law and state sovereignty makes it difficult for the hardest laws to have strong enforcement provisions.The Security Council can authorize the use of collective armed force to enforce international agreements.The strongest enforcement mechanism is available in international law.Legal scholars argue that international law is inherently soft because of the lack of enforcement measures.
Step 9: The agreement may create or use an independent international organization.
The European Union has the strongest enforcement powers.The EU has its own government institutions.Harder laws often have their own institutions to interpret and enforce the agreement.The European Convention on Human Rights is enforced by the European court of human rights.