Alan Boyle - Soft Law in International Law-Making

Evans pp. 141-156

Thesis: Boyle defines soft law as those non-legally
binding
instruments
used
in
contemporary
international relations by states and international
organizations.
They are soft because they are not law per se but
may nevertheless constitute evidence of existing law,
or is considered as formative of the opinio juris or state
practice, which generates new customary law. Boyle
makes the case that they may not be fundamentally
different from that of multilateral treaties, in terms of
its law-making functions. Soft law may also serve as a
tool for consensus-building among states and
mobilizing states for a consistent and general response
to issues.
Boyle also discusses the relationship of soft law with
other sources in international law such as treaties and
customary law.

I. The Significance of Soft Law

While soft law is often misunderstood, Boyle posits that
the interplay between soft law, and treaties, custom,
and general principles of law has great significance to
law-making and the regulatory work of international
organizations.
He discusses that the one of the most important points
about soft laws significance is that it is potentially lawmaking by itself, as much as multilateral treaties are
potentially law-making. It can also serve as evidence of
opinio juris or even state practice, which are both
elements needed for the establishment of a new rule of
customary law. Given these, he argues against the
dismissal of the significance of soft law in international
law.
II. What is Soft Law?
From a law-making
description for a
instruments used
relations by states
This is unlike hard
least for its parties.

perspective, it is a convenient
variety of non-legally binding
in contemporary international
and international organizations.
law which is always binding, at

A problem arises when there is need to determine if an

agreement is a non-binding one (therefore a soft one).
This question is one of substance and intent. Moreover,
there is always a possibility that it may be binding even
if it is not a proper treaty. Also, once a soft agreement
begins interacting with a binding one, then the nonbinding character (i.e., its softness) may be lost.
A common characteristic among all forms of soft law is
that they are carefully negotiated and, in some cases,
are intended to have some normative significance,
even if their form is non-binding. There is an element of
good-faith commitment. In this sense, they are similar
to multilateral treaties, and may even serve as proper
alternatives to them.
III. Treaties or Soft Law?

Boyle enumerates three reasons why soft law may be

more attractive alternatives to treaties:
-It is easier to reach agreements when the form is nonbinding. Such a form allows states to agree to more
detailed and precise provisions because their
commitment is limited.
-It is easier for some states to agree to non-binding
instruments because they can avoid the domestic
treaty ratification process, and may be even escape
democratic accountability for it. Of course, this may
also make it harder to implement if such processes
are necessary for its execution.
-Soft law instruments are flexible; they are easier to
supplement, amend, or replace than treaties. The
latter takes time to replace and amend, and may
sometimes result in an overlap between the old and
new obligations between parties.
Despite the reasons stated above, Boyle finds it
surprising that the ILCs preferred method of
codification is the creation of multilateral treaties. It is
at this point that he notes, however, one important
advantage of treaties in the context of codification:
states would have significant input in the negotiations
and may even make substantial changes to ILC drafts.
Such is not always possible with the UNGA.
The argument for the use of a treaty over soft law is
stronger in cases where there is new law to be made or
where a revision in existing ones is needed. They can
also be useful to help generate widespread and
consistent state practice and/or provide evidence of
opinio juris.
What this suggests, according to Boyle, is that nonbinding instruments have limited use in creating
customary international law. Treaties may be more
effective for this purpose because they indicate a
stronger commitment to the rules in question, and
hence may carry greater weight that would a soft law
instrument.
IV. Soft Law as Part of the Multilateral TreatyMaking Process
Some soft law instruments are important because they
are the first step in a process that will eventually lead
to the conclusion of a multilateral treaty.
Others may be used as a tool to interpret or amplify
the terms of the treaty. This is a role that soft law has
come to perform more frequently in the context
multilateral treaty-making.
Another related role is to provide more detailed rules
and technical standards used for the execution and
implementation of these treaties. This is very much
true for environmental law, where soft law instruments
are the means of setting standards. The advantage
here is that these instrument are flexible and can be
easily changed or strengthened as scientific knowledge
develops and/or as political priorities change.
Boyle focuses on the International Atomic Energy
Agency (IAEA), particularly its extensive use of soft law
instruments to prescribe nuclear safety codes and
principles. While they are soft law, Boyle says that it is

relatively east to consider them as the minimum

internationally endorsed standards of conduct. Boyle
notes however that because of this soft law approach
to nuclear safety, these soft law instruments were
eventually adopted into the 1997 Joint Convention on
the Safety of Spent Fuel and Radioactive Waste
Management for the purpose of making it binding.
This case exemplifies, he says, the interplay between
treaty and soft laws.
Another interaction between treaties and soft law is
when treaties make implied reference to soft law
instruments. This has the effect of conferring binding
force on soft law instruments. Boyle cites the UNCLOS
as an example, which cited soft law such as the
recommendations of international organizations and
regulatory annexes to past treaties.
Lastly, soft law may also interact with treaties to
provide evidence of opinio juris, as exhibited in the
case of Nicaragua v. US, where the relationship
between the UN Charter and the UNGA Resolutions
were discussed.
V. Treaties as Soft Law
Another perspective on soft law is that it involves
norms and principles, which are usually considered
general in their content and wording, while hard law
involves clear and reasonably specific commitments.
This was the point made by Judge Baxter when he
stated that some treaties are soft law because they
impose no real obligations on its parties. An example
by Boyle for this is the 1992 Framework Convention on
Climate Change, whose core provisions (dealing with
greenhouse gas emissions) were so cautiously and
obscurely worded that it created doubt on whether any
obligations were actually imposed.
Boyle considers this kind of treaties as political bargain
than a legal one, and that they are soft undertakings of
a fragile kind. They are not normative, yet, at the same
time, do not create any rules as well.
But a treaty may be considered as soft law in another,
more significant sense: because it articulates
principles rather than rule rules or obligations but is
nevertheless potentially normative. Formulation of the
provisions then become the decisive factor in
determining whether it is hard or soft, and not its form
as a binding or a non-binding instrument. These
treaties considered as soft law might:
-Law down parameters which affect how courts decide
cases or how international institutions exercise their
discretionary powers
-Set limits, provide guidance, or determine how conflicts
will be resolved
While they may lack the hardness of a rule or
obligation, they are nevertheless, Boyle says,
important and not legally irrelevant.

confined to treaty regimes, but are also more likely to

be found in soft law instruments. This is a hallmark of
modern
international
relations.
These
general
principles do not need to create rules of customary law
to have legal effect, because their importance is the
fact that they can influence the interpretation,
application, and development of other rules of law.
Subtle changes in the existing law and treaties may
come about through reliance on such principles. And
soft law, in bringing about these general principles, has
certain advantage over other forms of law. Compared
to customary law, it is capable of elaboration and is
much faster to create. As compared to treaties, soft law
will not ask the parties to be bound.
VII. Soft Law and Customary Law
Boyle points out 3 considerations:
-A potentially law-making soft law instrument (ex.
resolution or declaration) need not necessarily
proclaim rights or principles as law but its wording
must be one of a fundamentally norm-creating
character such that it is possible to use it as the
basis of a general rule of law.
-With regards to the creation of customary law, the
context within which soft law instruments are
negotiated and the accompanying statements of
delegates will be relevant in the assessment of
whether or not opinio juris exists among states.
-The degree of support is significant when it comes to
these soft law instruments. For example, a
resolution supported by a consensus of all states
carries more weight than that approved only by a
simple majority.
Boyle then turns to Prof. Chengs argument that if
properly worded, UNGA Resolutions are capable of
creating instant customary law. He believes that the
expression of the states opinio juris through the
medium of the resolution may be enough, even without
further state practice, to afford evidence of a new rule
of customary or general international law.
Prof. Chengs qualifies his own proposition, however, by
limiting it only to specific circumstances:
-First, it depends on a strong consensus in favor of such
a resolution
-Second, it requires appropriate wording
Boyle adds to the qualification by pointing out that
Chengs idea was written before any of the leading ICJ
cases on the creation of customary law was decided.
The jurisprudence now is not favorable to the notion of
instant law-making and instead points to a need for
subsequent confirmatory practice

VI. Soft Law General Principles

Adoption of soft law instruments, however, remains

significant. They provide both a record of what the
states believe the rules should be and also evidence of
opinio juris. Though treaties are much better in in longterm regulation of international relations, soft law may
provide an effective starting point when states need
reassurance before commencing novel and previously
unregulated activities, such as space exploration.

General principles or norms that affect the way that

courts decide or how discretionary powers of
international organizations are exercised are not

Adoption of soft law may also lead to faster changes in

existing law. Boyle cites the practice of driftnet fishing
and how it was terminated by the successful and

effective use of an UNGA Resolution. The widespread

opposition to the practice, shown by a majority of those
who supported the resolution, has been effective in
pressuring those who practiced it to abandon it.
Treaties in such a case would have taken longer and if
there were not enough ratifications, it would not have
entered into force. However, Boyle notes how soft law
may not be useful in cases where more complex
change is needed; treaties may then be the only
possible instruments in situations such as that.

VIII. Conclusion
Soft law is a significant area of study in international
law, despite its perceived characteristics. Based on
Boyles discussion, it is not correct to simply say that it
is not law. Boyle concludes that soft law is a tool, and
hence, may be abused, but ultimately has its purposes
and is effective when used correctly.