Soft Law, and Why a Declaration Matters
Chapter Five
Syllabus topic 1, "Environmental Federalism and International Order"
Pages 14 to 16 of 663
In one line
Soft law is a written statement that States have agreed to but have deliberately not made binding, and it matters because almost every principle in this paper started life as one.
In exam wording: soft law comprises non-binding instruments, principally declarations of international conferences, resolutions of the General Assembly, codes of conduct and guidelines, which create no legal obligation of their own but shape the formation of custom, guide the interpretation of treaties, and set the agenda for later binding instruments.
Why the law has this at all
Because a treaty is expensive. It takes years to negotiate, it must be ratified by each State's own constitutional process, and once made it is hard to change. When a hundred and thirteen States met at Stockholm in 1972 they could agree on what ought to happen far more easily than on what each of them would be legally compelled to do. The declaration was what they could agree on.
Soft law is therefore not a failure to make hard law. It is a different instrument for a different job.
The four things soft law actually does
One: it states a rule that is already custom. Principle 21 of the Stockholm Declaration did not create the rule that a State may not let its territory harm another. Trail Smelter had stated it in 1941 and Corfu Channel in 1949. Principle 21 wrote it down where everybody could see it.
Two: it generates the practice that becomes custom. A principle stated in a declaration gets repeated into treaty preambles, into national legislation, into the pleadings of States before tribunals. That repetition is practice and evidence of opinio juris, and after enough of it the principle is custom. The precautionary approach travelled exactly this road between 1987 and about 2000.
Three: it interprets a treaty. Article 31, paragraph 3, of the Vienna Convention on the Law of Treaties 1969 requires an interpreter to take into account any relevant rules of international law applicable between the parties and any subsequent agreement or practice. A declaration adopted by the same States, on the same subject, is exactly that kind of material.
Four: it sets the programme. Agenda 21, adopted at Rio in 1992, is four hundred pages of soft law and it produced the Commission on Sustainable Development, the desertification convention and, eventually, the Sustainable Development Goals.
The soft-law instruments this book uses
| Instrument | Year | What it is | What it did |
|---|---|---|---|
| Stockholm Declaration | 1972 | 26 principles, adopted by the United Nations Conference on the Human Environment | Principle 21 became custom; the conference produced UNEP |
| World Charter for Nature | 1982 | General Assembly resolution 37/7 | Put nature's own worth ahead of its use to humans |
| Rio Declaration | 1992 | 27 principles, adopted at the Earth Summit | Precaution, polluter pays, differentiated responsibilities, impact assessment |
| Agenda 21 | 1992 | An action programme in forty chapters | The working plan for the Rio conventions |
| Johannesburg Declaration | 2002 | Reaffirmation at the World Summit | Kept the programme alive |
| The Future We Want | 2012 | Rio+20 outcome document | Launched the Goals process |
| The 2030 Agenda | 2015 | General Assembly resolution 70/1, seventeen Goals | The current global programme |
Soft Law, and Why a Declaration Matters
Worked example
Rakesh, appearing for a State in an arbitration, wants to argue that the other side was obliged to notify his client before starting works on a shared river.
There is no treaty between the two States on the point. He argues in three moves.
- Principle 19 of the Stockholm Declaration and Principle 19 of the Rio Declaration both require prior and timely notification to potentially affected States. That is soft law and does not bind by itself.
- Those principles have been written into a long series of treaties, applied by tribunals in Lake Lanoux and Pulp Mills, and reflected in the practice of States on shared rivers everywhere.
- Therefore the obligation is customary, and it binds the other side whether or not it ever signed anything.
Notice that the soft law is not the source of the obligation in his argument. It is the evidence of it.
What it does NOT mean
Soft law is not "almost binding". It is not binding at all. A State that ignores the Rio Declaration commits no breach. What it risks is being found to have breached the customary rule the Declaration reflects, which is a different thing.
It is not always weaker in practice. The Montreal Protocol's non-compliance procedure operates by decisions of the Meeting of the Parties that are formally non-binding, and it has been more effective than most binding treaties in this book.
A General Assembly resolution is not legislation. Article 10 of the Charter of the United Nations lets the Assembly discuss and recommend. It cannot enact.
Distinctions
| Hard law | Soft law | |
|---|---|---|
| Binding | Yes | No |
| Breach | Engages State responsibility | Engages nothing legally |
| Made by | Treaty or custom | Conference or Assembly resolution |
| Speed | Slow | Fast |
| Precision | Usually high | Often deliberately vague |
| Use in a case | Cited as the rule | Cited as evidence of the rule |
Quick revision
- Soft law binds nobody, and shapes almost everything.
- Four functions: states existing custom, generates new custom, interprets treaties, sets the programme.
- Stockholm 1972, World Charter for Nature 1982, Rio 1992, Agenda 21, Johannesburg 2002, Rio+20 2012, the 2030 Agenda 2015.
- Article 31(3) of the Vienna Convention is the door through which soft law enters treaty interpretation.
- A resolution is evidence of opinio juris, not a source of obligation.
Soft Law, and Why a Declaration Matters
Test yourself
1. A State ignores Principle 15 of the Rio Declaration. Has it breached international law? Not by ignoring the Declaration, which binds nobody. It may have breached the customary precautionary obligation that Principle 15 reflects, which is a separate question requiring proof of custom.
2. Give the four functions of soft law. It states existing custom, generates the practice from which new custom forms, guides treaty interpretation, and sets a programme of work.
3. Why did the States at Stockholm adopt a declaration rather than a treaty? Because they could agree on what ought to be done far more readily than on what each of them would be legally compelled to do, and a declaration needed no ratification.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.