The Interaction of Hard and Soft Law in International Governance

by Greg Shaffer and Mark Pollack

The complex and often antagonistic interaction of hard and soft law was clearly one of the most interesting points in the book for several of the commentators, as indeed it was for us. Our core argument here is that hard and soft law can serve not just as complements but also as “antagonists,” both in a conflict-of-laws sense and in a strategic sense whereby states (or non-state actors) deliberately use new legal provisions (typically soft law) in an attempt to undermine existing (mostly hard-law) provisions. This is an argument that appears in Chapter 4 of When Cooperation Fails, and we have since further formulated the theoretical argument, generated testable hypotheses, and examined the interaction of hard and soft law in several empirical cases in an article to appear this month in the Minnesota Law Review (Gregory C. Shaffer and Mark A. Pollack. “Hard Law vs. Soft Law: Alternatives, Complements and Antagonists in International Governance,” available here on SSRN). We would direct anyone interested in the question of hard and soft law to that article, but we address three issues here.

The Usefulness of the Terminology

First, Tomer concludes his excellent post by questioning the usefulness of “hard law/soft law” terminology. Here we think it helpful to distinguish an ex ante perspective regarding how parties design agreements, from an ex post one regarding how these agreements have effects. We adopt the Abbott-Snidal characterization of hard- and soft-law agreements which vary along a continuum in terms of the three characteristics of obligation, precision and delegation to third party dispute settlement. We agree with Tomer that any particular agreement (including WTO agreements) can have hard- and soft-law features. Indeed, part of the virtue of the Abbott-Snidal typology, often lost in subsequent applications, is the disaggregation of those terms into three distinct dimensions, such that an institution such as the WTO can be characterized relatively hard along the dimensions of obligation and delegation, with precision varying from article to article of the agreements in question.

From an ex ante institutional design perspective, Abbott and Snidal’s typology presents a useful framework for problematizing the choices that parties face in negotiating and entering into agreements that have varying degrees of obligation, precision and delegation. From an ex post socio-legal perspective, moreover, Abbott and Snidal’s scheme provides an intellectual starting point for asking whether and when harder- or softer-law regimes interact as alternatives (each with its own strengths and weaknesses), as complements (each elaborating and building on the other), or as antagonists (each potentially undercutting the substantive norms and procedural advantages of the other). We believe that all three types of interactions are possible, but the existing literature has largely ignored the third option of antagonism, which we explore in our book and article.

Has WTO Law Been Softened?

Second, Tomer questions whether WTO law has indeed been softened by its interaction with neighboring soft-law regimes in the case of the WTO SPS Agreement. We again elaborate our views in the article. To understand the potential impact of soft-law provisions from one international regime on the judicial application of relatively hard-law texts in another, we adopt a legal realist theory of judicial decision making, as opposed to a formalist one. The core legal realist claim is that, in practice, judges decide cases in response to factual context and not simply in response to formal rules and legal doctrine. Judges are viewed as situated decision makers who respond to disputes in light of particular social, political, and historical contexts which shape their views of the facts of a particular case. These contexts include the existence of neighboring soft-law regimes. That is why, in our view, actors strive to create them.

From a legal realist perspective, when WTO panels and the WTO Appellate Body interpret WTO texts, it is highly unlikely that they will formally declare that they are taking into account soft-law provisions and norms from a separate regime if they find that such provisions or norms are outside of their jurisdiction. Yet a legal realist does not look only at what judicial bodies say formally, but also at what they do in terms of judicial outcomes. In interpreting texts, panels and the Appellate Body always have some leeway. As legal realists, we predict that soft-law provisions can indirectly inform the interpretation and application of existing WTO texts and thus shape the outcome of WTO panel and Appellate Body decisions. From a rationalist perspective, panelists or Appellate Body members may wish to limit the tension between the WTO and other regimes in a fragmented international law system or seek to limit political backlash against their decisions that touch on environmental or social issues, the potential of which is reinforced and signaled by such other regimes. In doing so, panelists and the Appellate Body could facilitate greater acceptance of their decisions, reducing the severity of challenges to their legitimacy.

Alternatively, from a constructivist perspective, WTO jurists may be affected by and internalize principles and norms from neighboring regimes, and incorporate those principles and norms into their reading and application of WTO texts. Sometimes the judicial body may be rather explicit, as the Appellate Body was in the famous US-Shrimp-Turtle case, interpreting the meaning of WTO texts in a contemporary context that included soft-law environmental norms codified in treaties that it cited. At other times, the judicial body may be silent but still take account of those soft-law norms. We are not contending that WTO panels invariably change their decisions, directly or indirectly, to take account of soft-law norms in neighboring regimes. We rather contend that the opposing party will press them to do so, and in some contexts, it will be successful.

As Rebecca points out in her thoughtful post, we show how the WTO panel faced a number of interpretive choices in the GMO case, having distinct institutional implications, and thus ultimately affecting “who decides.” As a side note, we point out that our assessment of the governance tradeoffs in these institutional choices aligns us with the “global administrative law” perspective associated with Benedict Kingsbury and Richard Stewart at NYU.

Evolutionary vs Revolutionary Changes from Hard-Soft Law Interaction.

A third interesting challenge to our conceptualization of hard and soft law as antagonists comes from Margaret de Guzman. In a colloquium discussion of the book at Temple Law School, Meg questioned our distinction between the “complementary” and “antagonistic” use of hard and soft law. In our view, states and other actors in the GMO case, and in other cases such as intellectual property rights and the protection of cultural diversity, deliberately employ soft-law instruments in an effort to undermine or modify the interpretation of existing hard-law rules. This, we argue, is a distinctive use of soft law that is not captured in existing accounts, where soft law is depicted as elaborating, specifying, and “progressively developing” existing hard law. (Again, see our article for our typology of the existing literature as legal positivist, rational choice institutionalist, and constructivist).

Meg and others point out that much of the so-called “progressive development” of international law, and especially customary international law, begins with states undertaking practices or putting forward legal interpretations that to some extent are at odds with existing understandings of law. Of course, to the extent that other states accept these actions and the legal understandings behind them, customary international law “progressively develops” (although the use of the term “progressive” is problematic to many). The point is that some degree of “antagonism” seems inherent in this process.

This contention calls to mind Larry Helfer’s excellent discussion of what he calls “counter-regime norms.” Like us, Larry believes that states frequently put forward soft-law proclamations designed to weaken existing laws. In doing so, Larry distinguishes between “evolutionary” and “revolutionary” counter-regime norms. As he writes:

“How such challenges unfold depends in part on the degree of dissonance between established and emerging legal prescriptions. Disadvantaged actors may articulate counterregime norms that only incrementally modify existing rules but leave uncontested the broader principles from which those rules emanate. A state or an NGO might, for example, object to treaty obligations that require recognition of specific types of patentable subject matter or that narrow the exceptions to a patentee’s exclusive rights without questioning the broader innovation objectives that a patent system serves. In other instances, counterregime norms may be revolutionary rather than evolutionary, posing more fundamental challenges to underlying principles. Actors who question the economic and social benefits of granting intellectual property rights to foreign creators and inventors are asserting norms that fall into this latter category.” (Laurence R. Helfer, “Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking,” Yale Journal of International Law, Vol. 29, No. 1, at pp. 1-83, at 14-15).

In our view, most of the existing literature on hard and soft law presupposes an “evolutionary” relationship between hard and soft law, with the latter elaborating and filling in the blanks of the former. This is indeed often the case, we argue. However, where states have sharply differing views and multiple fora in which to express them, soft-law instruments may indeed pose “fundamental challenges” to the “underlying principles” of existing international law. There is of course not a clear line between “complementary” and “antagonistic” legal norms (to use our terms) – or “evolutionary” and “revolutionary” counter-regime norms (to use Larry’s terms). Yet we believe that, under certain conditions, the latter are more common and more important than the existing literature suggests, and can lead to stalemates that are quite persistent over time.

http://opiniojuris.org/2010/01/05/the-interaction-of-hard-and-soft-law-in-international-governance/

One Response

  1. This has been a great conversation and I applaud Greg and Mark for their great book and illuminating posts. I wanted to pick up on the antagonistic versus complementary legal norms discussion.

    International investment law is one area in which capital exporting and importing states have had sharply differing views – in multiple forums including in the United Nations General Assembly, (UNGA), as well as is reflected in arguments presented to arbitral and judicial bodies. In decades gone by these divisions occured in UNCTAD.

    Efforts to solidify international investment rules have come from multiple sources as well – including from the UNGA but also from the World Bank (such as through its 1992 Guidelines on the Treatment of Foreign Direct Investment).

    Some UNGA initiatives that sought to offer what might be loosely termed strong counter norms such as those incorporated in the Charter of Economic Rights and Duties of States that were not adopted with support of a majority of States have not been regarded as reflecting a ‘real general will.’ By contrast UNGA resolutions such as 1803 (XVII), which was voted on with a consensus by a majority of states representing developed economies with market economies and less developed states who were capital importers, was regarded as incorporating nationalization and compensation rules in conformity with international law.

    Initiatives like the CERDS and the New International Economic Order were regarded by its proponent States not merely as counter-norms but as embodying new rules for global economic governance. This is the spirit in which Mohammed Bedjaoui wrote Towards A New International Economic Order, (1979). Developed States by contrast considered CERDS and the NIEO as contra legem.

    Thus what might be considered evolutionary (in terms of moving soft to hard law) or as counter-norms (‘soft’ norms designed to challenge existing hard norms) often occurs against the backdrop of not only vastly different interests, but also of vastly different visions of a desirable global order.

    The US Supreme Court captured this antagonism of clashing visions/orders in Banco Sabbatino de Cuba v Sabbatino 376 U.S. 398, 467 (1964) in the following terms: “The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of captal importing and capital exporting nations, between the social ideologies of those countries in favor of state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations.” (Justice Harlan delivering the Court’s decision)

    It was such differences that resulted in countries arguing that nationalizations were non-arbitral sovereign acts. Such arguments did not fare well in arbitration and in fact many developing country leaders have to some extent adopted market based economies and signed bilateral investment treaties (BITS) with capital exporting States.

    While large scale nationalizations of natural resource concessions and of entire industries that characterized earlier periods is largely over, there is still uncertainty about the exact content of a variety of international investment rules. The tendency of these rules to over-protect foreign investors has resulted in the recent denunciation of the ICSID Convention by at least one capital importing country.

    The point of this long reply post is therefore to suggest that perhaps the terms counter-norm or antagonistic norms potentially reduce differing normative visions between States to short-hands that may not do explanatory justice to the underlying rather legitimate differences represented by existing international law and those presented by alternative norms.

    Last, as I and other twailers have argued, existing international legal norms in a variety of areas set an interpretive baseline which is often mobilized  to de-legitimize alternative norms which do not enjoy the same legitimacy of what we may call hard legality.

    While there are certainly multiple relationships between hard and soft law therefore, (including the fact that soft law does sometimes eventually harden), in a variety of areas in international investment law and trade law developed states have been very adept at defining alternative norms proposed by capital importing/developing states as merely political – having no legal implications at all. For example, soon after the adoption of the Doha Declaration on TRIPS and Public Health in 2001, the U.S. issued a statement noting the declaration was of merely political rather than legal import.

    The strategy of the US here was therefore clearly intended to diminish the potentially transformative legal value of the declaration in making it possible to have more people have access to essential affordable medicines in light of the restrictions of the TRIPS Agreement. As this example hopefully illustrates, the conceptualizations of norms/counternorms; evolution/revolutionary etc sometimes embeds within them not merely stalemates between States but different normative visions – some privileged since they ‘are the law’ and others less so since they are not.

    James Gathii
    Albany Law School

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