حقوق نرم SOFT LAW

با توجه به درخواست یکی از دوستان محترم در ارتباط با حقوق نرم و منابع انگلیسی آن مطلب زیر که حاوی توضیحاتی در مورد حقوق نرم و منابع مرتبط با آن می باشد به همراه ترجمه پاراگراف اول قرار داده می شود.

 Introduction

The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law, often contrasted with soft law by being referred to as "hard law". Traditionally, the term "soft law" is associated with international law, although more recently it has been 

transferred to other branches of domestic law as well

اصطلاح حقوق نرم به موضوعات شبه قانونی اشاره دارد کخ هیچ قدرت الزام آوری نداشته و به دیگر معنا قدرت الزام آوری آن در مقام مقایسه با حقوق کلاسیک بسیار اندک است. در اغلب موارد و در تضاد با حقوق نرم به حقوق سخت اشاره می شود. به طور سنتی اصطلاح حقوق نرم  ارتباط عمیقی با حقوق بین الملل داشته است. هرچند اخیرا حقوق نرم  بازگردانی از دیگر شاخه های حقوق داخلی می باشد و در توسعه آن از حقوق داخلی استفاده شده است.

 

Definition of soft law

In the context of international law, the term "soft law" covers such elements as:

Most Resolutions and Declarations of the UN General Assembly

Elements such as statements, principles, codes of conduct, codes of practice etc.; often found as part of framework treaties;

Action plans (for example, Agenda 21);

Other non-treaty obligations

European community

The term "soft law" is also often used to describe various kinds of quasi-legal instruments of the European Union: "codes of conduct", "guidelines", "communications" etc. In the area of law of the European Union, soft law instruments are often used to indicate how the European Commission intends to use its powers and perform its tasks within its area of competence.

Status of soft law

In international law, the terminology of "soft law" remains relatively controversial because there are some international practitioners who do not accept its existence and for others, there is quite some confusion as to its status in the realm of law. However, for most international practitioners, development of soft law instruments is an accepted part of the compromises required when undertaking daily work within the international legal system, where states are often reluctant to sign up to too many commitments that might result in national resentment at over-committing to an international goal.

Utility of soft law

Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "hard law" in the future. This "hardening" of soft law may happen in two different ways. One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law. Soft law is a convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments at a certain point in time for political and/or economic reasons but still wish to negotiate something in good faith in the meantime.

Soft law is also viewed as a flexible option - it avoids the immediate and uncompromising commitment made under treaties and it also is considered to be potentially a faster route to legal commitments than the slow pace of customary international law. With the passage of time, in today's globalized society it is easy to use the media and the internet to spread the knowledge of the content of declarations and commitments made at international conferences. In doing so, these aspirational non-commitments often capture the imagination of citizens who begin to believe in these soft law instruments as if they were legal instruments. In turn, it is felt that this ultimately impacts governments who are forced to take into account the wishes of citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft law instruments so frequently and with such import that they begin to evidence legal norms.

Another useful aspect of the nature of soft law is that it often can be used to evidence opinio juris on applying or interpreting a treaty.

Soft law has been very important in the field of international environmental law where states have been reluctant to commit to many environmental initiatives when trying to balance the environment against economic and social goals. It is also important in the field of international economic law and international sustainable development law.

Using care with reliance on soft law]

Soft law is attractive because it often contains inspirational goals that aim for the best of possible scenarios. However, the language in many soft law documents can be contradictory, uncoordinated with existing legal commitments and potentially duplicative of existing legal or policy processes. Another key point is that negotiating parties are not blind to the potential lying in stealth in soft law. If a negotiating party feels that soft law has a potential to turn into something binding down the track, this will negatively influence the negotiation process, and soft law instruments will be watered down and hemmed in by so many restrictions that there is little point in creating them.

Nevertheless, the reliance on soft law continues and it is unlikely that its use will fade; it is far more likely to be relied on in greater amounts as it also serves as a "testing ground" for new, innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change.

sources:

Abbott, Kenneth, and Duncan Snidal. “Hard and Soft Law in International Governance.” International Organization 54 (2000): 421–456.

DOI: 10.1162/002081800551280E-mail Citation »

Cited in many other works, this article is a landmark in American scholarship with an interdisciplinary scope transcending divisions between international relations and international law. The authors argue that “it initiates a process and a discourse that may involve learning and other changes over time” (p. 423), allowing actors to evaluate their soft law commitments in the context of legalization.

Baxter, Richard R. “International Law in ‘Her Infinite Variety.’” International and Comparative Law Quarterly 29.4 (1980): 549–566.

DOI: 10.1093/iclqaj/29.4.549 »

Seminal work approaching soft law as one element among the many varieties of international law and as one that expresses a “different intensity of agreement” (p. 566) through “various degrees of cogency, persuasiveness, and consensus which are incorporated in agreements” and also through “various norms of customary international law, in terms of degree of acceptance, of precision, of relevance” (p. 549). Available online for purchase or by subscription.

Chinkin, Christine M. “The Challenge of Soft Law: Development and Change in International Law.” International and Comparative Law Quarterly 38.4 (1989): 850–866.

In a mere sixteen pages, Chinkin, with far-sighted thoroughness, adopts a position that evaluates the pros and cons of soft law and its application to economic law, taking into account its impact in law-making procedures and in implementation and adjudication of international law. A must-read article when approaching the subject. Available online for purchase or by subscription.

D’Aspremont, Jean, and Tanja Aalberts, eds. “Symposium on Soft Law.” Leiden Journal of International Law 25.2 (2012): 309–372.

D’Aspremont and Aalberts trigger the debate on soft law that Ellis and Goldman develop passionately with differing and converging theoretical approaches to soft law. Ellis summarizes the spirit of the symposium in affirming that the role of soft law is “to provoke investigation into, and debate about, the nature, sources, validity, and legitimacy of law” (p. 372).

• Klabbers, Jan. “The Redundancy of Soft Law.” Nordisk Journal of International Law 65.2 (1996): 167–182.

This must-read work asserts that the notion of soft law is redundant since “the traditional binary conception of law is well capable of performing the functions usually ascribed to soft law,” even though it “cannot be said to be legally insignificant either” (pp. 167–168). Available online for purchase or by subscription.

Pauwelyn, Joost, Ramses A. Wessel, and Jan Wouters, eds. Informal International Lawmaking. Oxford: Oxford University Press, 2012.

DOI: 10.1093/acprof:oso/9780199658589.001.0001 »

This work provides a valuable contribution from a multidisciplinary perspective to the study of soft law. It includes extensive empirical studies of scholars and practitioners analyzing informal international law-making around three axes, namely output informality, process informality, and actor informality, in aiming to assess if this informality jeopardizes transnational law-making accountability.

Shelton, Dinah, ed. Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Oxford: Oxford University Press, 2000.

Groundbreaking work of the American Society of International Law evaluating nonbinding norms and discussing compliance with soft law through an assessment of a wide variety of nonbinding instruments on key subjects. Valuable introductory chapters are followed by studies of sectors and commentaries to these studies written by well-reputed experts. A must-read work.

Weil, Prosper. “Towards Relative Normativity in International Law?” American Journal of International Law 77 (1983): 413–442.

DOI: 10.2307/2201073E-mail Citation »

A much-quoted landmark work critical of the notion of “relative normativity,” warning not to blur the distinction between normative and non-normative rules and to differentiate between normative and pre-normative acts in the international norm-creating process. A must-read article for scholars and students approaching the subject. Available online for purchase or by subscription. A version in French is available: “Vers une normativité relative en droit international?” Revue générale de droit international public 86 (1982): 5–47.