Hard vs Soft Law Alternatives Complements and Anta

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Hard vs. Soft Law: Alternatives, Complements and Antagonists in
International Governance
Article in Minnesota law review · June 2009
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Hard vs. Soft Law:
Alternatives, Complements and Antagonists in International Governance
by Gregory C. Shaffer and Mark A. Pollack1
The aim of this Article is to use the concepts of hard and soft law to build a crosscutting theory that integrates international law, international relations and sociology of
law to further our understanding of how international law is made and develops over time
in a fragmented and decentralized governance system. Our theory is that state and other
actors choose among legal instruments that vary in their hard- and soft- law
characteristics to advance their aims. States and other actors choose these instruments
sometimes as alternatives relative to the instruments’ respective attributes, sometimes as
complements to enhance international coordination and cooperation over time, and
sometimes as antagonists to counter existing international legal instruments that work
contrary to their aims. By focusing on the role of actors, we foreground the roles of
power, interest and distributive conflict in the development of, resistance to, and impact
of international law. By focusing on the interaction among soft and hard law instruments
as complements and antagonists, we foreground the role of institutional choice and
institutional path dependencies in a fragmented international legal order. By focusing on
the role of domestic implementation, we foreground the challenges of decentralized
governance and integrate sociolegal analysis of how the domestic reception of
international law recursively drives further development of international law-making,
1
Gregory Shaffer is Melvin C. Steen Proffessor of Law, University of Minnesota Law School, and Mark
Pollack is Associate Professor of Political Science, Temple University. We thank John Bronsteen, Brett
Frischmann, Tom Ginsburg, Daniel Halberstam, Terry Halliday, Larry Helfer, Kal Raustiala and Spencer
Waller for their comments, as well as the participants at conferences and workshops at the University of
Michigan, the University of Illinois, Loyola Univeristy Chicago, the Law and Society Association
(Montreal), the Society of International Economic Law (Geneva), the International Law Association (New
York City). We thank Melissa Beckman, Mathew Bills, Mathew Fortin and Kisa Patel for their research
assistance. All errors of course remain our own.
2
where hard- and soft- law instruments are sometimes used as complements and
sometimes as antagonists. In this Article, we build specific hypotheses as to how, and
under what conditions, hard and soft law instruments interact in different ways in
international governance.
There has been a considerable amount of scholarship regarding the use of “hard”
and “soft” law in international governance, written from legal positivist, normative and
political economy perspectives.
This law and social science literature assesses the
relative functional attributes and deficiencies of hard and soft law instruments as
alternatives for international governance, as well as how these instruments can be
combined sequentially as mutually-reinforcing complements to lead to greater
international cooperation over time. We find, however, that this scholarship has failed to
address how, when and why hard and soft law operate as antagonists, and thus the full
implications of hard and soft law for how international law operates.
The existing law and social science literature on hard and soft law can be divided
into three camps: legal positivists, rationalists and constructivists.2 All three of these
camps address how hard and soft law interact in complementary ways, but they have
different starting points. Legal positivists tend to view hard and soft law in binary terms,
with hard law referring to legal obligations of a formally binding nature, and soft law to
law that is not formally binding but may nonetheless lead to binding hard law.3 They
either question whether soft law can be considered to be law because it is not legally
binding, or view it at best as an inferior instrument whose only rational is to serve as a
stepping stone to hard law.
Rationalists, in contrast, contend that states choose between hard and soft law
instruments depending on the level of commitment that they wish to make.
In an
important article in the rationalist tradition, Kenneth Abbott and Duncan Snidal described
international legal instruments as lying along a hard-soft law continuum in terms of
different features, such as the law’s precision, obligation and delegation to a third party
2
A full explication of these three modes of scholarship and their approaches to hard and soft law
interaction is set forth in Part I.C.
3
See discussion in Part IA, supra notes… and accompanying text.
3
for dispute resolution, each of which can be of a harder or softer nature.4 Rationalists
find that both hard and soft law can be advantageous to states in different circumstances,
so that neither should be judged to be superior. For example, rationalists contend that
because soft law is less costly for states to negotiate and less costly to their sovereignty,
states will prefer it in situations of uncertainty where they need to learn more about the
intentions of the other parties or about the underlying technical issues.
Constructivists, in contrast to rationalists, maintain that state interests are formed
through socialization processes of interstate interaction which soft law can facilitate.
They thus favor soft law instruments for their capacity to generate shared norms and a
sense of common purpose and identity.
As with legal positivists, however, both
constructivist and rationalists scholars contend that soft law can lead to hard law and,
once formed, can help to further elaborate hard law, resulting in progressive cycles of
law-making leading to greater cooperation.
In other words, all three approaches,
regardless of their views about the strengths and weaknesses of hard and soft law as
alternatives, agree that hard and soft law may also serve as mutually supporting
complements.
For purposes of this Article, we will remain agnostic as to which of these three
camps most accurately captures the nature of hard and soft law and their relative
advantages, although we have our own views in this respect.5 Our aim here is not to
adjudicate among these three views about the respective strengths and weaknesses of
hard and soft law, but to understand how hard and soft law interact under different
conditions, and we suggest that all three approaches have erred in focusing only on the
mutually supporting or complementary interaction of hard and soft law.
We make two central claims. Our first and primary claim is that international
hard and soft law instruments (or, for that matter, any legal instruments that vary in their
soft and hard law characteristics) can be used as antagonists just as easily as they can be
used as complements in a fragmented and decentralized governance system where there
are distributive conflicts. Our second, related claim is that this interaction has particular
4
See Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT’L
ORG. 421 (2000), and discussion in Part IA.
5
Neither of us are legal formalists, and both of us can be viewed primarily as rationalists because of our
focus on actors and their interests, although our approach is of a soft rationalist variant which takes
seriously constructivist insights.
4
implications in a fragmented international system, affecting the very nature of
international hard and soft law regimes and their purported advantages. We will show
how the interaction of hard and soft law regimes can lead to the hardening of soft law
regimes, resulting in more strategic bargaining and reducing their purported advantages
of consensus-building through information-sharing and persuasion, and the softening of
hard law regimes, resulting in reduced legal certainty and predictability, especially where
there is distributive conflict between powerful states.
It is not surprising that scholars of widely divergent perspectives predominantly
view hard and soft law as complements.
Law is seen as both a reflection and an
instrument of social order.6 As Lon Fuller writes, the essential function of law is to
“achiev[e] [social] order through subjecting people's conduct to the guidance of general
rules by which they may themselves orient their behavior."7 Similarly, for socio-legal
scholars working in the Weberian tradition, law performs a legitimation function,
engendering public belief in the legitimacy of the prevailing social order, which in turn
leads to obedience and adherence. In Max Weber’s words, “the belief in legality, the
readiness to conform with rules that are formally correct and that have been imposed by
accepted procedure” is “the most common form of legitimacy” in modern society.8
Given the anarchic nature of much of international relations, the central hope of
international law is that it too can provide order in place of anarchy to help stabilize
interstate relations and help states achieve joint gains.9 Through international law, states
6
Many conceptions of the relation between law and social order view law as either a “mirror” of the social
order or as an “engineer” of it. According to the first view, the content of law mirrors the content of
prevailing social norms. In other words, “law is a reflection – a ‘mirror’ – of society.” BRIAN Z.
TAMANAHA, A GENERAL JURISPRUDENCE OF LAW AND SOCIETY 1 (2001); Lawrence Friedman, Borders:
On the Emerging Sociology of Transnational Law, 32 STAN. J. INT’L L. 65, 72 (1996) (“Necessarily [legal
systems] reflect what is happening in their own societies”). Another influential claim states that the
conceptual function of law is the maintenance of the social order. TAMANAHA, supra, at 2 (“law maintains
social order by establishing and enforcing the rules of social intercourse”). See also ROSCOE POUND,
SOCIAL CONTROL THROUGH LAW (1942).
7
Lon L. Fuller, A Reply to Professors Cohen and Dworkin, 10 VILL. L. REV. 655, 657 (1965).
8
MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 37 (1978).
9
These approaches range from those of the “Yale school” of international law to Richard Falk’s work on
world order. See, e.g., Myres S. McDougal, Harold D. Laswell, & Michael Reisman, The World
Constitutive Process of Authoritative Decision, in INTERNATIONAL LAW ESSAYS 191-92 (1981) (the
existence of a legal order requires norms that command obedience; absent such recognition disputes would
be resolved through the anarchy of exercised force); Strategy of World Order (Volumes I to IV), edited with
Saul H. Mendlovitz, World Law Fund, 1966-67; BURNS H. WESTON, RICHARD A. FALK & ANTHONY A.
D'AMATO, INTERNATIONAL LAW AND WORLD ORDER: A PROBLEM-ORIENTED COURSEBOOK (1980).
5
can better avoid and manage conflict, whether of a military, trade or other nature, and
better pursue common goals. As Prosper Weil writes, the purpose of international law is
“to temper this condition of an-archy” in response to “a two-fold necessity: first, to
enable heterogeneous and equal states to live side by side, and to that end to establish
orderly and, as far as possible, peaceful relations among them; second, to cater to the
common interests that did not take long to surface over and above the diversity of
states.”10
Most legal scholars who have previously applied game theory have used the
prisoners’ dilemma game to show how international law can facilitate cooperative
outcomes. In fact, in a recent study, Richard McAdams found that legal scholars have
referred to the prisoners’ dilemma game in “an astonishing number of law review
publications — over 3000 according to my Westlaw search, which contrasts with only
trivial attention to coordination games of equal legal significance.”11
Three other
important games assessed by McAdams (Assurance, Hawk/Dove and Battle of the Sexes)
were respectively referenced in Westlaw only 121, 101 and 75 times, or “4%, 3% and
2.5% as often as the PD game.”12 Yet as we will show, international bargaining is
predominantly characterized by coordination games, and in particular the Battle of the
Sexes game. Seeing hard and soft law interaction in terms of strategic maneuvers in a
Battle of the Sexes game provides a much richer understanding of the use of these
instruments, enabling us to better combine law and economics and law and society
approaches.13
In other words, law can be viewed as more than a facilitator of social order. Law
is also a tool advanced by actors to advance their aims, including where there is
distributive conflict. Since actors’ interests differ, actors often attempt to make use of
legal instruments in opposing ways. Thus in the US federal context, we see laws with
conflicting aims enacted at the state and federal levels and within different states. The
10
Prosper Weil, Towards Relative Normativity in International Law?, 77 AM. J. INT’L L. 413, 418 (1983).
Richard McAdams, Beyond the Prisoners’ Dilemma: Coordination, Game Theory and the Law, Chicago
Public Law and Legal Theory Working Paper No. 241, available at… (October 2008), at 8.
12
Id., at 12.
13
See also id., at 55 (“coordination games direct attention away from the Law & Economics concerns of
efficiency, exchange, and mutual advantage and towards the Law & Society issues of distribution,
inequality, and social conflict. The excessive attention to the PD makes these conclusions semm foreign to
game theory, when they are really well modeled if one starts with the right games”).
11
6
state of California, for example, can pass a law addressing climate emissions which is
strategically intended to be in tension with federal law.14 Similarly actors can attempt to
use soft law processes, such as through the American Law Institute, where they have
been less successful in hard law processes, such as before legislatures, with the aim of
affecting hard law interpretation by courts.15 In most domestic legal systems, however,
there is hierarchy, so that tensions among these different approaches are more likely to be
settled.
Once we move our analysis to the international level, with its fragmented,
decentralized system lacking a clear hierarchy and final institutional arbiter having
compulsory jurisdiction (such as a supreme court), we are more likely to see hard and soft
law instruments used by strategic actors in purposefully inconsistent ways as tools to
counter each other.16 In the process, hard and soft law instruments and regimes interact
in ways which can undercut their purported advantages as laid out in the canonical
literature.
The question, in other words, is not whether hard and soft law “complement” each
other, since a legal instrument is not an agent. The question is whether actors, and in
particular states, design hard- and soft- law instruments in order to complement each
other or undermine each other. Thus, rather than saying, “soft law can elaborate and
therefore complement hard law,” we should say, “states and other actors may adopt softlaw provisions to elaborate the provisions of existing hard law.” Similarly, rather than
saying hard and soft law can interact as antagonists, we should say, some states or other
actors, unhappy with existing legal agreements, may promote the adoption of new legal
provisions designed to obfuscate and undermine those arrangements.” It is not an
either/or question. Both statements are grammatically correct and tell part of the story.
But it is important to recognize the agency of states and other actors, and the fact that
14
See High Court Ruling Prompts Debate on Preemption of State GHG Rules, CLEAN AIR REPORT, Apr.
19, 2007; J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate
Change, 155 U. PA. L. REV. 1499 1533-38 (2007); and Ann E. Carlson, Federalism, Preemption, and
Greenhouse Gas Emissions, 37 U.C. DAVIS L. REV. 281. (2003).
15
See, e.g., Edward L. Rubin, Thinking Like a Lawyer, Acting Like a Lobbyist: Some Notes on the Process
of Revising UCC Articles 3 and 4, 26 LOY. L.A. L. REV. 743 (1993).
16
In fact, John Braithwaite and Peter Drahos contend that the United States borrows from its national
experience in deploying successful forum-shifting strategies at the international level. They write: “The US
state in fact translated its ‘national legal pastime’ of forum-shifting into the realm of international
regulatory contests.” JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION 564 (2000).
7
hard and soft law interact as complements or antagonists when states and other actors
design and use them that way.
We often focus in this Article on states as central agents in using international
hard- and soft- law instruments in order to clarify our analysis. However, we fully
recognize that non-state actors are also influential players in the creation of international
law, whether through enrolling states to act on their behalf or through creating their own
legal regimes.17 Indeed, many constructivists focus, in particular, on the role of non-state
actors in using soft-law instruments to catalyze change in international law and national
practice. We thus also address these cases as well.
We will provide numerous examples in this Article of how international hard- and
soft- law instruments interact, drawing largely (but not exclusively) from the sphere of
international economic regulation, but let us briefly introduce one here. The international
trade law regime under the World Trade Organization (WTO) requires that members’
sanitary and phytosanitary requirements be based on a risk assessment. These rules
favored the United States (US) in its dispute with the European Union (EU) over the
regulation of genetically modified foods and seeds. As we will show, this hard law
forum has had a significant impact on standard-setting in a long-standing soft-law forum,
the Codex Alimentarius Commission, because of concern over the implications of Codex
soft law standard-setting within WTO hard law dispute settlement. The European Union,
in turn, was spurred to respond by promoting new international rules in yet another
forum, the Convention on Biodiversity and its Biosafety Protocol, with the resulting rules
favoring the EU’s position vis-à-vis the United States. The EU hoped that these new
international law developments would have an impact on a WTO panel’s application of
WTO hard law rules. We show how the panel, in turn, evaded applying WTO hard law.18
In sum, we argue in this Article that hard and soft law may be used to interact not
only as alternatives or complements, but also, under certain conditions, as antagonists,
and that this interaction can in turn affect and undermine the respective ideal type
strengths and advantages of both hard and soft law. The Article is in four parts. Part I
17
We ourselves have examined their role in detail. See Mark Pollack and Gregory Shaffer, Transatlantic
Governance in the Global Economy (2001) and Gregory Shaffer, Defending Interests: Public-Private
Partnerships in WTO Litigation (2003).
18
We develop this example in Part III.
8
provides an overview of the existing literature regarding the definitions of hard and soft
law (section A), the relative attributes and deficiencies of hard and soft law as
alternatives (section B), and how hard and soft law can act as complements, leading to
greater cooperation (section C). Part II provides the background theoretical context for
assessing the roles and interaction of hard and soft law in international regulatory
governance as alternatives, complements and antagonists, namely the sources and the
importance of state power (section A), the role of distributive conflict among and within
powerful and smaller countries which gives rise to Battle of the Sexes games (section B),
the challenges posed by international regime fragmentation (section C), and the recursive
processes generated by the implementation stage where developing countries retain
greater leverage (section D). Part III provides a detailed example of how, in light of
distributive conflicts within a decentralized international system, hard and soft law can
just as likely act as opposing tools aimed to counter each other’s influence, using the
US/EU dispute over genetically modified foods as an illustration.
Part IV then sets forth five hypotheses regarding how hard and soft law
instruments interact in international governance, and, in particular, the conditions under
which they work in a complementary or opposing manner. Our first two hypotheses
concern the impact of cooperation and rivalry among powerful states on the interaction of
international hard and soft law regimes. We contend that where powerful states agree on
a regulatory approach, in particular because distributive conflict between them is weak or
absent, we are more likely to see hard and soft law work as complements in an
evolutionary manner, consistent with the existing literature. Indeed, we see this pattern in
a number of cases of cooperation between the United States (US) and the European
Union (EU), which act as the most powerful players in a number of bilateral and
multilateral regulatory regimes (section A). In contrast, where powerful states disagree
on a regulatory approach, we are more likely to see hard and soft law work in opposition
to each other, especially where there are distributional consequences which spur such
states to attempt to advance their perspectives in different international regimes (section
B). Given the fragmented nature of the international system, states will attempt to
advance their interests in those regimes that they find to be most favorable to their
positions. In such settings, we argue, soft law regimes may be “hardened” through their
9
links to other regimes, losing the purported soft law advantages of flexibility and
informality, while hard law regimes such as the World Trade Organization’s dispute
settlement process may be “softened.”
Our second two claims concern the obstacles raised when powerful states, such as
the US and the EU, agree on a common regulatory approach, but where their agreement
has distributive implications in third countries, affecting the dynamics of hard and soft
law interaction in new ways. We maintain that even where powerful states like the US
and EU agree on a regulatory approach, smaller states can also use hard and soft law
strategies to attempt to thwart these aims, again by choosing regimes more favorable to
their positions in a fragmented international system (section C). However, powerful
states like the US and EU have significant advantages because of their market power and
resources, and they can attempt to play smaller countries off of each other, including
through bilateral negotiations. Even where powerful states prevail in negotiations at the
international level vis-à-vis third countries, they can nonetheless face severe difficulties
in the agreement’s implementation in third countries because different interests hold
power in domestic settings (section D). Purportedly weak developing country actors may
be, in fact, quite strong at the implementation stage where they operate on a different
terrain, and such weak implementation can in practice blur the line between hard- and
soft- law regimes from a law-in-action perspective. Under such conditions, powerful
states may seek to complement existing hard and soft law instruments with new ones as
part of ongoing recursive attempts to affect regulatory practice until some settlement is
reached (using hard and soft law as complements). In turn, new politics may be catalyzed
because of the greater publicity within countries at the implementation stage, so that the
target governments and non-state actors within them may attempt to create new
international hard and soft law instruments to counter the status quo at the international
level (using hard and soft law as antagonists).
Our fifth claim concerns the spectrum from which actors may choose in using
hard- and soft- law instruments to counter existing international law. We briefly sketch
the options for actors seeking to counter existing hard- and soft- law instruments and
regimes, and provide policy examples relating to each alternative. We look at the
following four situations: (1) new soft law aimed to counter existing hard law; (2) new
10
hard law aimed to counter existing hard law; (3) new hard law aimed to counter existing
soft law; and (4) new soft law aimed to counter existing soft law. We hypothesize, on the
one hand, that states will favor instruments with harder law characteristics where their
interests are certain and when they can obtain sufficient support from third countries, or
where they are sufficiently powerful to negotiate serial bilateral agreements to advance
their aims. On the other hand, we hypothesize that actors more frequently resort to
instruments of a soft-law nature for a number of reasons we discuss.
Finally, we contend that the potentially antagonistic interaction of hard and soft
law is not limited to the area of economic regulation, from which many of our examples
are drawn, but are generalizable to the workings of international law in other issue-areas.
While a thorough exploration of other issue-areas is beyond the scope of this Article, we
illustrate the promise and the generality of our approach through two further case studies,
examining how hard and soft law instruments interact in public international law
regarding the use of force for “humanitarian intervention” and public international law
regarding the use and possession of nuclear weapons. In both of these areas, as in cases of
economic regulation, we find states strategically deploying hard- and soft-law provisions
in keeping with their substantive preferences, and we find these provisions interacting in
predictable, and often mutually-constraining, ways.
We conclude that international law theorists and other scholars need to recognize
more explicitly that there are often real distributive conflicts in international relations,
resulting in conflicts between hard and soft law instruments and regimes. We find that
these conflicts are not necessarily to be lamented, but rather reflect a maturation of
international law in a pluralistic world, in which multiple and overlapping regimes may
signal decision-makers to take account of developments in other spheres of international
law and politics. Although our primary interest is to build a richer theory of how
international law operates, our account is highly relevant for any actor seeking to advance
its perspectives within the international law system. Our analysis both foregrounds the
role of power and inequality in shaping international law in a fragmented international
legal order, and yet shows how smaller developing countries retain more leverage than is
often stated because of the decentralized nature of this order. This Article’s findings call
11
for future research regarding how international hard and soft law instruments interact in
different contexts, and what explains these different interactions.
I. The Canonical Literature on International Hard and Soft Law: Their Attributes
as Alternatives and their Interaction as Complements
We provide an overview of scholarship concerning the definitions of hard and soft
law, and this scholarship’s assessment of the various attributes and deficiencies of hard
and soft law as alternatives. We create a typology of this literature into three camps, each
of which predominantly views hard and soft law to act as complements, leading to greater
international cooperation. We here provide the background for our argument that the
existing literature exhibits a selection bias as regards how hard and soft law interact. In
Parts II and III, we will show how, in a world of distributional conflict within a
decentralized governance system, hard and soft law instruments (or, for that matter, any
international legal instruments) can frequently work in opposition to each other as
antagonists, affecting the operation of international regimes in the process.
A. Definitions of Hard and Soft Law
To assess how hard and soft law interact in international governance, we must
first define the terms. Here there is already disagreement in the existing literature. Many
legal scholars use a simple binary binding/non-binding divide to distinguish hard from
soft law.19 Positivist legal scholars tend to deny the very concept of “soft law,” since law
by definition is “binding.”20 Rational institutionalist scholars respond that “the term
19
See Shelton et al 4 (2000) for a leading study which settles on this distinction. See also Wolfgang
Reininke & Jan Martin Witte, Interdependence, Globalization and Sovereignty: The Role of Non-binding
International Legal Accords, in COMMITMENT AND COMPLIANCE 76 (Dinah Shelton ed., 2000) (“soft law as
used herein means normative agreements that are not legally binding”); Snyder 1993: 198 (“soft law
consists of “rules of conduct which, in principle, have no legally binding force but which nevertheless may
have practical effects”); and Jan Klabbers, The Redundancy of Soft Law, 65 NORDIC J. INT’L L. 167, 168
(1996) (advocating retention of the “traditional binary conception of law”).
20
Klabbers takes a positivist approach, arguing that “law can’t be more or less binding” so that the soft law
concept is logically flawed. Klabbers, Redundancy, supra note, at 181. Prosper Weil takes a normative
approach, arguing that the increasing use of soft law represents a shift pursuant to which international law
norms vary in their relative normativity, and he finds that this trend “might destabilize the whole
international normative system and turn it into an instrument that can no longer serve its purpose.” Weil,
supra note, at 423. Klabbers also later wrote that soft law tools are “detrimental,” including because they
12
‘binding agreement’ is a misleading hyperbole” when it comes to international affairs,
but they still find that the language of “binding commitments” matters in terms of
signaling by states of the seriousness of their commitments, such that non-compliance
will entail greater reputational costs.21 Constructivist scholars, in contrast, focus less on
the binding nature of law at the enactment stage, and more on the effectiveness of law at
the implementation stage, addressing the gap between the law-in-the-books and the lawin-action. They note how even domestic law varies in terms of its impact on behavior, so
that binary distinctions between binding “hard law” and non-binding “soft law” are
illusory.22 They find that the very concept of “binding” international law is highly
suspect as an operational concept. Interestingly, international relations realists take a
similar view from a rationalist perspective, although some working in this tradition in the
United States are concerned that the United States may erroneously take international law
seriously to its detriment.23 At the international level where centralized institutions are
can provide “smokescreens” for the exercise of “administrative power” to the detriment of citizens. Jan
Klabbers, The Undesirability of Soft Law, 67 NORDIC J. INT’L L. 381, 383, 387-91 (1998).
21
Charles Lipson, Why are Some International Agreements Informal?, 45 INT’L ORG. 495, 508 (1991). See
also Kal Raustiala, Form and Substance in International Agreements, 99 AM. J. INT’L L. 581 (2005)
[hereinafter Raustiala, Form and Substance] (distinguishing between form and substance of international
agreements, as opposed to “hard law” and “soft law”); ANDREW GUZMAN, HOW INTERNATIONAL LAW
WORKS: A RATIONAL CHOICE THEORY (2008) [hereinafter GUZMAN, RATIONAL CHOICE]; and Andrew
Guzman, The Design of International Agreements, 16 EUR. J. INT’L L. 579 (2005) [hereinafter Guzman,
Design]. Guzman states that “an agreement is soft if it is not a formal treaty.” Guzman, Design, supra, at
591. He finds that states rationally choose soft law because they wish to reduce the cost to their reputation
of potentially violating it in light of uncertainty.
22
Some scholars accuse legal formalists of “elite ignorance” and “non-knowledge of the social.” See, e.g.,
Peter Goodrich, Law-Induced Anxiety: Legalists, Anti-Lawyers and the Boredom of Legality, 9 SOC. &
LEGAL STUD. 143, 150 (2000); David Trubek et al., Soft Law, Hard Law, and European Integration:
Toward a Theory of Hybridity, in NEW GOVERNANCE AND CONSTITUTIONALISM IN EUROPE AND THE US 65
(Joanne Scott & Gráinne de Búrca eds., 2006).
23
See, e.g., HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 3
(Kenneth Thompson ed., 6th ed. rev., 1985) (1948) (stating that the primary currency of international
politics is power: all international relations are subordinate to, or take place as exertions of power
calculated to advance the interests of the sovereign state); Hans J. Morgenthau, Positivism, Functionalism,
and International Law, 34 AM. J. INT’L L. 260 (1940) (providing a classical realist perspective); Hans J.
Morgenthau, The Problem of Neutrality, 7 U.K.C. L. REV. 109 (1939) ("the rules of international law
referring to the rights and obligations of neutrals have no independent normative existence of their own;
they are only the expression of certain legal, economic, political, and military conditions to which they owe
their existence. Should these conditions change, these rules change also; should these conditions cease to
exist, these rules cease to exist."); and Charles Krauthammer, The Curse of Legalism: International Law?
It’s Purely Advisory, THE NEW REPUBLIC, Nov. 6, 1989, at 44 (taking a neoconservative policy-making
perspective, arguing that “legalism starts with a naïve belief in the efficacy of law as a regulator of
international conduct…; it is not only naïve but dangerous”); but cf. Richard Steinberg & Jonathan Zasloff,
Power and International Law, 100 AM. J. INT’L L. 64 (2006). We thank Kal Raustiala for drawing out this
point.
13
typically missing, most observers realize that “most international law is ‘soft’ in
distinctive ways.”24
We take a pragmatic view that actors, working ex ante, use different types of
agreements having different characteristics to further different aims. These different
agreements can have different effects, ex post, which are often unpredicted, leading to
new cycles of international law-making. The definition of legalization in international
relations adopted in a special issue of International Organization provides a useful tool,
in our view, in terms of actors’ choices from an ex ante perspective. Kenneth Abbott and
his coauthors defined legalization in international relations as consisting of a spectrum of
three factors (i) precision of rules; (ii) obligation; and (iii) delegation to a third-party
decision-maker.25 International regimes vary in the extent of their legalization along
these dimensions, which can give them a “harder” or “softer” legal character. In this
respect, hard law “refers to legally binding obligations that are precise (or can be made
precise through adjudication or the issuance of detailed regulations) and that delegate
authority for interpreting and implementing the law.”26 International trade law, at least
formally, comes closest to this ideal type, although as we will see, it too is soft (or can
become soft) in certain areas.27
By contrast with this ideal-type of hard law, soft law can be defined as a residual
category: “The realm of ‘soft law’ begins once legal arrangements are weakened along
one or more of the dimensions of obligation, precision and delegation.”28 Thus, if an
agreement is not formally binding, it is soft along one dimension. Similarly, if an
agreement is formally binding but its content is vague so that the agreement leaves almost
complete discretion to the parties as to its implementation, then the agreement is soft
24
Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT’L ORG.
421 (2000).
25
Kenneth W. Abbott at al., The Concept of Legalization, 54 INT’L ORG. 17 (2000). Abbott and Snidal
work within a “rational design” approach to international institutions, in Barbara Koremenos, Charles
Lipson & Duncan Snidal, The Rational Design of International Institutions, 55 INT’L ORG. 761 (2001). See
also Guzman, Design, supra note. For an almost simultaneous use of these three attributes to differentiate
harder from softer international law, see Alan E. Boyle, “Some Reflections on the Relationship of Treaties
and Soft Law, 48:4 International Law Quarterly 901-913 (Oct. 1999).
26
Abbott & Snidal, Hard and Soft Law, supra note, at 37.
27
See our discussion in Part III below. In addition, from a formal perspective, international trade law does
not have independent enforcement power. Rather WTO panels authorize a winning party to withdraw
equivalent concessions, in an amount determined by the panel, in the event of non-compliance by the losing
party.
28
Abbott & Snidal, Hard and Soft Law, supra note, at 38.
14
along this second dimension. Finally, if an agreement does not delegate any authority to
a third party to monitor its implementation or to interpret and enforce it, then the
agreement again can be soft because there is no third party providing a “focal point”
around which parties can reassess their positions, and thus the parties can discursively
justify their acts more easily in legalistic terms with less consequence, whether in terms
of reputational costs or other sanctions.29
The key difference, we believe between scholars who evaluate hard and soft law in
terms of a binary binding-non-binding distinction and those who evaluate it based on
characteristics that vary along a continuum depends on whether they address international
law primarily from an ex post enforcement perspective or an ex ante negotiating one.
From an ex post enforcement perspective, legal formalists are right when they state that,
to a judge, a given instrument is either legally binding or non-binding.30 However, from
an ex ante negotiation perspective, actors have choices that, in practice, can render
agreements relatively more or less binding in the three ways Abbott and Snidal have
noted. We thus agree with their political economy approach that hard and soft law are
best seen not as binary categories but rather as choices arrayed along a continuum. “Soft
law” agreements can feature varying degrees of obligation, precision and delegation.
They need not, that is, be uniformly low on all three counts. To give one example, under
the Statute of the International Court of Justice, the two most important sources of
international law are treaties and customary international law.31 Yet countries may sign
treaties that only set forth generalized goals and calls for action that do not create rights
or obligations. They thus should be considered to constitute soft law,32 at least along the
dimension of “precision.”
29
Tom Ginsburg and Richard McAdams, for example, address how international litigation can construct “a
focal point around which parties coordinate,” such that “third-party signals cause players to update their
beliefs about the state of the world.” Tom Ginsburg and Richard H. McAdams, “Adjudicating in Anarchy:
An Expressive Theory of International Dispute Resolution,” 45 Willam & Mary Law Rev. 1229, 1236
(2004).
30
That being said, a formally non-binding instrument can normatively affect a judge’s interpretation of the
meaning of the terms of a formally binding instrument.
31
See Article 38 of the Statute of the International Court of Justice. Article 38 also lists judicial decisions
and the writings of highly qualified publicists “as subsidiary means for the determination of rules of law.”
32
Christine Chinkin thus distinguishes between “legal soft law” which is formally binding but whose terms
are so open-ended that there is no real obligation, from “non-legal soft law” which may be precise in
content but is legally non-binding. Christine Chinkin, The Challenge of Soft Law: Development and
Change in International Law, 38 INT’L & COMP. L.Q. 851 (1989). As she points out, under the Vienna
15
Other examples of non-binding instruments that constitute soft law include
guidelines, codes of conduct, recommendations and action programs.33 However, despite
their lack of legal obligation, these latter agreements can be quite precise in their
substantive content and they can exercise persuasive authority in practice. For example,
where international soft law instruments give rise to national implementing legislation,
they can have hard law consequences from a legal positivist perspective.34 Similarly, soft
law instruments can guide national regulatory practices without any formal change in
domestic legislation, which is the focus of much of the work on transgovernmental
networks in policy domains such as competition, banking, securities and insurance law.35
Some scholars with sociological, constructivist leanings have questioned the
characterization of law in terms of these three attributes (precision, obligation and
delegation) because it distracts from how law operates normatively.36 They likely do so
because of their opposition to a presumption among legal positivists and rational
institutionalists that “hardness” means binding rules interpreted and enforced by courts.
In other words, their counterparts in interdisciplinary debates in international law and
international relations — realist and rationalist institutionalist scholars — tend to
discount the efficacy of soft law because it creates no binding obligation on states who
Convention of the Law of Treaties, a treaty need not create any identifiable rights and obligations to be
subject to its regime.” Id. Article 2 of the VCLT defines a “treaty” as “an international agreement
concluded between States in written form and governed by international law.” See also Hartmut
Hillgenberg, A Fresh Look at Soft Law, EUR. J. INT’L L. 10 499, 500 (1999) (distinguishing between nontreaty agreements and “treaties which contain… obligations which cannot be implemented because of their
lack of specificity”).
33
Klabbers, Undesirability, supra note, at 385-86.
34
Chinkin, supra note, at 859.
35
See generally ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004). Raustiala notes how “network
effects boost the existing incentives to standardize” by creating “incentives to harmonize and to promote
capacity building abroad.” Kal Raustiala, The Architecture of International Cooperation:
Transgovernmental Networks and the Future of International Law, 43 VA. J. INT’L L. 1, 9 (2002)
(involving case studies of securities, competition and environmental regulation). He addresses processes of
diffusion and convergence, noting the role of persuasion. Id. at 51-54.
36
See, e.g., Martha Finnemore & Stephen J. Toope, Alternatives to ‘Legalization’: Richer Views of Law
and Politics, 55 INT’L ORG. 743 (2001) (taking a more sociological perspective, and critiquing Abbott et
al’s formal definition of legalization because it obscures how law and legal norms actually operate in
practice). We also recognize that these formal definitions can obscure the relative roles of “hard” and “soft”
law in sociological terms—that is, from the way law and norms operate in the world, which indeed is what
interests us. Binding dispute settlement can be ignored or simply reflect existing power asymmetries, so
that “hard” law may in fact not be so “hard” in practice. Similarly, softer forms of law can be much more
transformative of state and constituent conduct, which should be the real measure of law’s impact in the
world. Despite these caveats, we believe that that hard/soft distinction does capture something important
about the making and implementation of international law, and we find the distinction to be particularly
useful for our analyses of how hard and soft law regimes and instruments interact.
16
can thus ignore it at their whim in light of their interests. For example, Richard Steinberg
contends, from a realist perspective, that “most public international lawyers, realists and
positivists, consider soft law to be inconsequential.”37
Similarly, Andrew Guzman
maintains, from a rational institutionalist perspective, that “soft law represents a choice
by the parties to enter into a weaker form of commitment.”38 Guzman and Steinberg
focus on states’ pursuit of pre-determined interests. They do not address how states may
change those interests through transnational processes of interaction, deliberation and
persuasion coordinated through international institutions.
Constructivists, in contrast, explicitly address how international regimes can lead
states to change their perceptions of state interests.39
International law scholars
frequently take such an approach, whether as regards international hard or soft law. For
example, Abraham and Antonia Chayes contend, “what is left out of the institutionalist
account is the active role of the regime in modifying preferences, generating new options,
persuading the parties to move toward increasing compliance with regime norms, and
guiding the evolution of the normative structure in the direction of the overall objectives
of the regime.”40 Similarly Harold Koh stresses the “internalization” processes to which
international law gives rise through iterative processes involving interpretation over
time,41 and Tom Franks stresses the compliance pull of international law that is deemed
37
Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in
the GATT/WTO, 56 INT’L ORG. 339, 340 (2002).
38
Guzman, Design, supra note, at 611.
39
“At bottom, constructivism concerns the issue of human consciousness: the role it plays in international
relations, and the implications for the logic and methods of social inquiry of taking it seriously.
Constructivists hold the view that the building blocks of international reality are ideational as well as
material; that ideational factors have normative as well as instrumental dimensions; that they express not
only individual but also collective intentionality; and that the meaning and significance of ideational factors
are not independent of time and place.” John Gerard Ruggie, What Makes the World Hang Together? Neoutilitarianism and the Social Constructivist Challenge, 52 INT’L ORG. 855 (1998).
40
Abraham Chayes & Antonia Handler Chayes, On Compliance, 47 INT’L ORG. 175, 229 (1993); see also
THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS (1990) (on the “compliance pull” of
law); and Harold Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 HOUS. L. REV.
623 (1998) (on “internalization” processes).
41
The transnational legal process theory of Harold Koh addresses how states internalize legal norms
through repeated “interaction,” including through the work of non-state actors, resulting in new
“interpretation,” which is “internalized” within states at the domestic level. See Harold Koh, Transnational
Legal Process, 75 NEB. L. REV. 181 (1996); Koh, Frankel Lecture, supra note; Koh, Why Do Nations Obey
International Law?, 106 YALE L.J. 2599 (1997) (book review). See also Paul Berman, Seeing Beyond the
Limits of International Law, 84 TEX. L. REV. 1265 (2006) (book review).
17
legitimate in its procedures.42 More recently, Ryan Goodman and Derek Jinks adopt an
“acculturation” approach as to how international law has effects, incorporating
sociological insights, and, in particular, those of the “world culture” theoretical and
empirical projects of Meyer, Boli and Boyle.43 From the constructivist perspective, soft
law mechanisms can be as or more effective than hard law by creating settings in which
states engage in open-ended discussions to reach better and more effective policy because
they are less wary of rigid hard law consequences.
In sum, the typology used by Abbott and Snidal does not prejudge these
instruments’ relative value.
Rather, the typology simply characterizes different
instruments which actors may choose from an ex ante perspective in terms of their
precision, binding legal obligation and delegation along a continuum. We find this
typology and continuum to be particularly useful for our analyses of how hard and soft
law instruments and regimes interact, and thus we adopt the definition of Abbott and
Snidal for our purposes.
B. Advantages and Disadvantages of Hard and Soft Law as Alternatives
States and private actors have increasingly used a wide range of instruments
having a relatively harder or softer legal nature in terms of precision, obligation and
delegation to advance their aims. These instruments offer different advantages and
disadvantages in different contexts, involving factors at the domestic and international
levels. They are sometimes used alone and sometimes combined dynamically over time,
resulting in a complex hybrid of hard and soft law instruments. In this section, we
address the use of hard and soft law instruments as alternatives in light of their respective
attributes and deficiencies before turning to an assessment of how they interact.
The quantitative growth in the use of international hard and soft law instruments
reflects the breadth and intensification of economic globalization, by which we mean “a
process of widening, deepening and speeding up of worldwide connectedness, in
42
FRANCK, supra note.
See, e.g., Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International
Human Rights, 54 DUKE L.J. 621 (2004); and Elizabeth Boyle & John Meyer, Modern Law as a
Secularized and Global Model: Implications for the Sociology of Law, in GLOBAL PRESCRIPTIONS: THE
PRODUCTION, EXPORTATION, AND IMPORTATION OF A NEW LEGAL ORTHODOXY 65, 65 (Yves Dezalay &
Bryant Garth eds., 2002.
43
18
particular in the economic sphere.”44 The very emergence of the soft law concept reflects
the multiplication of producers of international law in this context, including not only
foreign ministries, but also sector-specific transgovernmental networks, supranational
bureaucracies, multinational corporations and business associations, and international
non-governmental organizations.45 These groups generally do not have the authority to
create binding international law in a traditional sense, which is reserved to states, yet they
use non-binding instruments to advance their policy goals, instruments which may be
subsequently transformed into binding hard law, at either the national or international
levels.46
Private actors can also work with and through states to create binding hard law. As
John Braithwaite and Peter Drahos find in their masterful study of thirteen areas of global
business regulation, business actors play frequently leading roles. First, Braithwaite and
Drahos find that “state regulation follows industry self-regulatory practice more than the
reverse.”47 Janet Levit’s recent work on the law of documentary letters of credit provides
an excellent example.48 Second, corporate actors enroll states to advance their aims. In
this respect, Braithwaite and Drahos find that “US corporations exert more power in the
44
We adapt this definition from DAVID HELD ET AL., GLOBAL TRANSFORMATIONS: POLITICS, ECONOMICS
2 (1999). Held et al. also have a broader, more complex definition of globalization which
includes cultural as well as economic phenomena: “A process (or set of processes) which embodies a
transformation in the spatial organization of social relations and transactions – assessed in terms of their
extensity, intensity, velocity and impact – generating transcontinental or interregional flows and networks
of activity, interaction and the exercise of power.” Id. at 16.
45
Anna di Robilant, Genealogies of Soft Law, 54 AM. J. COMP. L. 499, 500 (2006). In an insightful article,
she notes two competing visions regarding the genealogy of soft law. One vision, adopted by those
favoring a liberal market and the role of private market actors focuses on the tradition of the law merchant,
or lex mercatoria. The other vision, adopted by those favoring stronger social policies, focuses on the
European tradition of legal pluralism, addressing the interaction of multiple, overlapping social orders. She
finds that these two orientations and their heritages reflect on-going power struggles. Id. at 503. See also
John J. Kirtin & Michael J. Trebilcock, Introduction to HARD CHOICE, SOFT LAW: VOLUNTARY
STANDARDS IN GLOBAL TRADE, ENVIRONMENT AND SOCIAL GOVERNANCE 3, 9 (John J. Kirtin & Michael J.
Trebilcock eds., 2004) (contending that “soft law, in contrast [to hard law that relies primarily on state
authority], refers to regimes that rely primarily on the participation and resources of nongovernmental
actors in the construction, operation and implementation of governance arrangements”). As Robilant points
out, many of the advocates of soft law challenge “state centrism,” whether they be advocates of liberal
markets or of socially marginalized groups. Robilant, supra note, at 539.
46
Functional state agencies, however, can play the leading roles in areas within their competence, which
can result in hard law. BRAITHWAITE & DRAHOS, supra note, at 479-85 (on decentering the state); and
Slaughter, World Order, at 5 supra note… (on disaggregating the state).
47
Id. at 481.
48
Janet Levit, Bottom-Up Lawmaking Through a Pluralist Lens: The ICC Banking Commission and the
Transnational Regulation of Letters of Credit, 57 EMORY L.J. 101 (2008).
AND CULTURE
19
world system than corporations of other states because they can enroll the support of the
most powerful state in the world.”49
As an institutional form, hard law features many advantages. In particular,
rationalist scholars find that:
•
Hard law instruments allow states to commit themselves more credibly
to international agreements.
Hard law instruments make state
commitments more credible because they increase the cost of reneging,
whether on account of legal sanctions or on account of the costs to a
state’s reputation where it is found to have acted in violation of its legal
commitments.50
•
Hard law treaties are more credible because they can have direct legal
effects in national jurisdictions (being “self-executing”), or they can
require domestic legal enactment.
Where treaty obligations are
implemented through domestic legislation, they create new tools that
mobilize domestic actors, increasing the audience costs of a violation
and thus making their commitments more credible.51
•
Hard law instruments solve problems of incomplete contracting by
creating mechanisms for the interpretation and elaboration of legal
commitments over time.52
•
Hard law instruments better permit states to monitor and enforce their
commitments, including through the use of dispute settlement bodies
such as courts.53
49
BRAITHWAITE & DRAHOS, supra note, at 482. For example, in their chapter on global
telecommunications regulation, they find that “to a considerable extent states are agents of corporate actors
in the telecommunications field.” Id. at 341. See also GREGORY SHAFFER, DEFENDING INTERESTS: PUBLICPRIVATE PARTNERSHIPS IN WTO LITIGATION (2003) (in the international trade dispute settlement context).
50
States are arguably particularly concerned with their reputation for compliance. Andrew Guzman
contends that states’ calculus over the reputational costs of non-compliance is the primary factor for
explaining state compliance with international law. Guzman, Design, supra note. See also Abbott & Snidal,
Hard and Soft Law, supra note; and Lipson, supra note, at 508 (“the more formal and public the agreement,
the higher the reputational costs of noncompliance”). Cf George W. Downs & Michael A. Jones,
Reputation, Compliance, and International Law, 31 J. Legal Studies 95, 108-109 (examining the
development of segmented reputations).
51
Abbott & Snidal, Hard and Soft Law, supra note.
52
Id.
20
States, as well as private actors working with and through state representatives, thus tend
to use hard law where the benefits of cooperation are great and the potential for
opportunism and its costs are high.54 To control for the risks of opportunism, they can
create third party monitoring and enforcement mechanisms, as under the WTO
committee, trade policy review and dispute settlement systems. These monitoring and
enforcement mechanisms reduce the transaction costs of subsequent interstate interaction
through providing an ongoing forum for interpreting, applying, enforcing and elaborating
agreed rules.55
Yet hard law also entails significant costs. It can create formal commitments that
restrict the behavior of states, thus infringing on national sovereignty in potentially
sensitive areas. As a result, it can encourage states to bargain fiercely and at length
regarding the legally binding commitments into which they are entering which will
continue to apply over time. Because states are more likely to drag out negotiations over
legally binding commitments, the use of hard law can increase contracting and audience
costs.
In addition, hard law agreements can be more difficult to amend to adapt to
changing circumstances. Therefore writing detailed binding agreements may be wasteful
because it can force states to plan for contingent events that may not occur, and can lead
to undesired rigidity or prevent agreement altogether.56 Trubek, Cottrell and Nance, in
their study of European employment and fiscal policy coordination, thus find that hard
law can often be undesirable. Hard law is particularly problematic, they contend, where
it presupposes a fixed condition when situations of uncertainty demand constant
experimentation and adjustment, where it requires uniformity when a tolerance of
national diversity is needed, and where it is difficult to change when frequent change may
be essential.57
53
Id. at 38.
Id. at 429.
55
Id. at 430
56
Id. at 433
57
David M. Trubek et al., Soft Law, Hard Law, and European Integration: Toward a Theory of Hybridity,
in NEW GOVERNANCE AND CONSTITUTIONALISM IN EUROPE AND THE US 65 (Joanne Scott & Gráinne de
Búrca eds., 2006); David Trubek and Louise Trubek….. These arguments also support the use of soft law
in purely domestic settings as advocated by the “new governance literature.” See Scott and de Burca 2006.
54
21
Defenders of soft law argue that soft law instruments offer significant offsetting
advantages over hard law. They find, in particular, that:
•
Soft law instruments are easier and less costly to negotiate.
•
Soft law instruments impose lower “sovereignty costs” on states in sensitive
areas.
•
Soft law instruments provide greater flexibility for states to cope with
uncertainty and learn over time.
•
Soft law instruments allow states to be more ambitious and engage in
“deeper” cooperation than they would if they had to worry about enforcement.
•
Soft law instruments cope better with diversity.
•
Soft law instruments are directly available to non-state actors, including
international secretariats, state administrative agencies, sub-state public actors,
and business associations and other non-governmental organizations.58
Abbott and Snidal, for example, contend that states use soft law where contracting costs
increase, whether because of the number of parties involved, factual uncertainty,
domestic ratification challenges, politically charged issue areas or distributional
asymmetries. They note how, in these contexts, “states can limit their legal obligation
through hortatory language, exceptions, reservations and the like,” such as safeguard and
rebalancing clauses under the WTO.59
Both rationalist and constructivist scholars recognize the potential advantages of
soft law instruments, but they do so in different ways. While rationalist-oriented scholars
58
For good discussions on the purported strengths of soft law, see, e.g., Lipson, supra note, at 500-01, 51427 (discussing the strengths of “informal agreements”); Abbott & Snidal, Hard and Soft Law, supra note, at
38-39; Trubek et al., Toward a Theory of Hybridity, supra note; Kirtin & Trebilcock, supra note; and
Francesco Sindico, Soft Law and the Elusive Quest for Sustainable Global Governance, 19 LEIDEN J. INT’L
L. 829, 832 (2006). See also Hillgenberg, supra note, at 501, 504 (noting the “simpler procedures’ at
international level, “facilitating more rapid finalization,” and at the national level, avoiding “cumbersome
domestic approval procedures” such as before the US Senate). Any agreement involves some amount of
negotiating costs, but states are more likely to entail higher costs with hard law agreements because they
must exercise more caution in negotiating and drafting them because of the greater consequences of a
subsequent violation.
59
Kenneth W. Abbott & Duncan Snidal, Pathways to Cooperation, in THE IMPACT OF INTERNATIONAL
LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES 50, 54 (Eyal Benvenisti & Moshe
Hirsch eds., 2004).
22
focus on the reduction of contracting and sovereignty costs under soft law, constructivist
scholars stress how soft law can “facilitate constitutive processes such as persuasion,
learning, argumentation, and socialization.”60
While rationalist scholars note the
importance of soft law instruments for generating information leading to common
understandings in situations of uncertainty, constructivist scholars contend that soft law
instruments can help states to develop common norms and a sense of a collective
enterprise. For both rationalists and constructivists, thus, soft law can create mechanisms
for parties to learn about consequences before obligations are made binding.
This
process occurred under the Montreal Protocol for Protection of the Ozone, an agreement
to protect a global commons, the earth’s atmosphere. Soft law instruments can bring a
broad array of participants together, as under a framework convention, in a process that
over time permits them to gain trust, leading to harder obligations in the future.61 As
Braithwaite and Drahos write, “[t]he idea here, supported by research evidence, is that
concern, norms and capacity build faster when they are not induced by threat. It is best to
introduce threat only after the progress that can be made without it has been secured” —
that is, to at least start with soft law.62
Soft law instruments, nonetheless, have obvious disadvantages. First, from a
normative perspective, if soft law instruments are effective, they can be criticized for
their relative obscurity, since they can remove law-making from democratic oversight,
such that provisions with distributive implications are not fully discussed within
60
Trubek et al., Toward a Theory of Hybridity, supra note, at 75. Similarly, Trubek and Trubek note how
the proponents of soft law find that it is particularly appropriate where there is uncertainty and a vast
amount of diversity among participants, requiring a need for experimentation, flexibility and revisability in
transnational processes of cooperation and coordination. David M. Trubek & Louise G. Trubek, Hard and
Soft Law in the Construction of Social Europe: the Role of the Open Method of Co-ordination, 11 EUR. L.J.
343, 353 (2005). Taking such an approach in the social policy field, they note how soft law processes can
lead to policy change through processes of shaming, diffusion through mimesis, diffusion through
discourse, deliberation, experimentation and learning. Id. at 356-58. Compare Braithwaite and Drahos’
focus on knowledge creation: “People often feel cynical about international meetings which are just talkshops, yet it is such talk that constitutes the epistemic communities which enable reciprocal adjustment and
modeling to happen. The talk within epistemic communities constitutes and transmits knowledge and
thereby enables action… Exchange of knowledge that leads to the discovery of enlightened mutual selfinterest is an increasingly important mechanism of globalization.” BRAITHWAITE & DRAHOS, supra note, at
292.
61
Jutta Brunnee & Stephen J. Toope, Environmental Security and Freshwater Resources: Ecosystem
Regime Building, 91 AM. J. INT’L L. 26 (1997).
62
BRAITHWAITE & DRAHOS, supra note, at 295. See also Goodman & Jinks, Socializing States, supra
note… (regarding the advantages of non-coercive mechanisms of acculturation).
23
legislative or other government bodies.63 Second, from the perspective of effectiveness,
soft law instruments create little or no legal obligation and provide no binding third-party
dispute settlement to resolve disputes among the parties and fill in the details of
incomplete contracts. Soft law instruments, depending on their level of precision, may
also make it difficult to determine whether a state is acting in accordance with its
commitments and thus create greater opportunities to evade responsibility.64
For
example, the OECD created a Financial Action Task Force (FATF) of financial experts
which issued guidelines which limit sovereignty costs because of their soft law nature.
Some commentators, however, have found that the task force guidelines have been
largely ineffective in leading to policy change.65 Similarly, at the 1992 Rio Summit, the
parties only agreed to a non-binding set of principles and an Agenda 21 to create a
“comprehensive plan of action,” contrary to the demands of environmental nongovernmental organizations (NGOs) for a hard law treaty.
Skeptics question the
effectiveness of these soft law instruments. They contend that much of international law,
when it lacks teeth, can be simply symbolic, constituting a form of junk law.66
It would nonetheless be a mistake, in our view, to view hard law instruments as
always preferable to soft law instruments from the standpoint of effectiveness, even
though states may sometimes use soft law instruments only to paper over differences. As
Kal Raustiala points out, we must distinguish between the concepts of compliance (as
63
See Klabbers, Undesirability, supra note… See also Levit, supra note…, at 108-10 (finding deficiencies
in transparency and accountability of bottom-up private sector lawmaking, as regards letters-of-credit
rules).
64
Abbott & Snidal, Hard and Soft Law, supra note, at 446. See, e.g., Emilie M. Hafner-Burton, Trading
Human Rights: How Preferential Trade Agreements Influence Government Repression, 59 INT’L ORG. 593
(2005) (on the weakness of the global soft law human rights regime); and Martin Rhodes & Manuele Citi,
New Modes of Governance in the European Union: A Critical Survey and Analysis, in THE HANDBOOK OF
EUROPEAN UNION POLITICS 463 (Knud Erik Jørgensen, Mark A. Pollack & Ben Rosamond eds., 2007) (on
the purported failure of the EU’s soft law “Open Method of Coordination”).
65
Beth Simmons, International Efforts Against Money Laundering, in COMMITMENT AND COMPLIANCE
244-63 (Dinah Shelton ed., 2000); cf. Maira Rocha Machado 2008 (on file).
66
Cf. MURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS (1964); JACK L. GOLDSMITH & ERIC A.
POSNER, THE LIMITS OF INTERNATIONAL LAW 43 (2005) ("[CIL] is not an exogenous influence on state
behavior."); Raustiala, Form and Substance, supra note, at 608 n. 177 (“Realists might argue that pledges
are simply what political scientists call ‘cheap talk’: symbolic, costless action.”); Lawrence Susskind &
Connie Ozawa, Negotiating More Effective International Environmental Agreements, in THE
INTERNATIONAL POLITICS OF THE ENVIRONMENT: ACTORS, INTERESTS, AND INSTITUTIONS 147 (Andrew
Hurrell & Benedict Kingsbury eds., 1992) (“The signing of a convention can ‘take the heat off’ political
leaders, allowing symbolic but empty promises to substitute for real improvements. Nations and leaders
that have absolutely no commitment to improving environmental quality can sign a convention and claim
credit for ‘doing something’ when, in fact, there will be no improvement.”).
24
with hard law obligations) and effectiveness.67 He writes, “compliance as a concept
draws no causal linkage between a rule and behavior, but simply identifies a conformity
between the rule and behavior. To speak of effectiveness is to speak directly of causality:
to claim that a rule is ‘effective’ is to claim that it led to certain behavior or outcomes,
which may or may not meet the legal standard of compliance.”68 In terms of the law-inaction, we are less concerned with formal compliance, which may mean little if the
obligations reflect no policy change, than with effectiveness, in terms of attaining policy
goals. Advocates of soft law as an alternative contend that it can be more effective in
practice than many formally binding treaties.
Abbott and Snidal’s rational institutionalist analysis suggests that the choice of
hard and soft law instruments as alternatives may simply reflect the existence of a
collaboration or coordination game, as exemplified by the use of game theory in the
rationalist international relations literature.69 To recall, collaboration games arise when
two or more states would benefit from cooperation, but face incentives to renege on their
agreements, as in prisoners dilemma and collective action models.
The solution is
“collaboration,” in which states can agree to mutual cooperation and rely on formal
regimes to provide iteration, monitoring and enforcement of agreements, and hence
reduce the temptation to renege. Coordination games, in contrast, arise when states seek
to avoid a particular outcome, and need to coordinate their behavior in order to do so. In
game-theoretic terms, these situations involve multiple equilibria, any of which would
allow the players to avoid their mutually undesirable outcome. In cases of coordination
games, soft law standards may alone be effective because once parties agree on a
common standard, the agreement becomes largely self-enforcing, and thus hard law
obligation, monitoring and enforcement are not required. In contrast, where states have a
67
Kal Raustalia, Compliance and Effectiveness in International Regulatory Cooperation, 32 CASE W. RES.
J. INT’L L. 387, 398 (2000); Kal Raustiala & Anne-Marie Slaughter, International Law, International
Relations, and Compliance, in HANDBOOK OF INTERNATIONAL RELATIONS 538 (Walter Carlsnaes, Thomas
Risse, and Beth A. Simmons eds., 2002); and Kal Raustiala & David G. Victor, Conclusions, in THE
IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS: THEORY AND
PRACTICE 659, 684-86 (David G. Victor, Kal Raustiala & Eugene B. Skolnikoff eds., 1998). On the “depth”
of cooperation, i.e. cooperative agreements that require a greater change in state behavior relative to the
status quo, see Downs, Rocke and Barsoom 1998.
68
Raustiala, Compliance and Effectiveness, supra note.
69
We examine and provide citations to the theoretical background literature in international relations in
Part II.
25
common interest in cooperation (as in a Prisoner’s Dilemma game), then they should
favor hard law instruments to facilitate the monitoring of other parties’ compliance and
reduce the possibilities of opportunism and cheating.
For example, David Zaring has found that soft law instruments have played an
important role in the formation and global diffusion of capital adequacy standards for
banks, and of securities regulations for operators in capital and commodity markets. He
finds that, “even though Basle Committee recommendations [for capital adequacy
requirements’ ‘have no binding force,’ they have been ‘applied in all countries
represented on the Committee’ and ‘almost universally applied in non-member
countries.’”70 Similarly, he found that the US Securities and Exchange Commission and
the Commodity Futures Trading Commission have adopted non-binding standards
promulgated by the International Organization of Securities Commissions (IOSCO).71
These case studies entail primarily a coordination game in which states agree on a
standard which afterwards becomes self-enforcing.
Yet soft law instruments may also be valuable in cooperation game situations
which, as we will argue in Part II, also involve a bargaining element over the terms of
cooperation and can have distributive implications.
Janet Levit, for example, in a
detailed empirical study, shows how countries have used an informal agreement named
the “Arrangement on Guidelines for Officially Supported Export Credits” to reach
agreement over the regulation of government support of trade finance with which
governments have complied over time. She concludes that “[t]he Arrangement works…
because it dynamically engages Participants within a malleable form that is hospitable to
innovation, evolution, and correction. It works because the nitty-gritty details force
Participants to dialogue and engage the document’s strengths and weaknesses. And it
works because it embodies a flexible, practical understanding of compliance itself that
70
David T. Zaring, Informal Procedure, Hard and Soft, in International Adminstration, 5 CHI. J. INT’L L.
547, 559 (2005) (quoting BIS supervisor Andrew Crockett). Former Chairman of the Basle Committee
Peter Cooke summarizes how such a soft law instrument can work: “The great advantage of such a forum
[the Basle Committee] is that people talk very frankly about their particular experiences, and then we had a
much better chance of putting in place sensible, practical and well-judged regulations to prevent further
regulatory failures.” BRAITHWAITE & DRAHOS, supra note, at 118 (citing Atul Shah, The Dynamics of
International Bank Regulation, 4 J. FINANCIAL REGULATION & COMPLIANCE 371, 375.
71
Zaring, Informal Procedure, supra note, at 566-69. See also Raustiala, Architecture, supra note, at 29
(noting the use of MOUs between securities regulators, in addition to the work of IOSCO, finding that the
US SEC is “at the center of a web of transgovernmental contacts”).
26
invites rather than alienates.”72 Levit’s study involves a cooperation game in which states
should be concerned with opportunism. Here a soft law instrument, nonetheless, appears
to have helped shape state and private behavior.
In sum, hard and soft law instruments offer different advantages for different
contexts involving a range of factors that actors consider. For these reasons, a growing
number of scholars in law and political science have advocated a pragmatic approach,
selecting alternative hard and soft law approaches depending on the characteristics of the
issue and the negotiating and institutional context in question. Scholars have noted, in
particular, how hard and soft law instruments may be effectively combined to lead to
greater cooperation. Yet as Abbott and Snidal write, while “soft law sometimes [is]
designed as a way station to harder legalization, … often it is preferable on its own
terms” as an alternative.73
C. Hard and Soft Law Interaction as Complements
Although the respective costs and benefits of hard and soft law remain a subject
of contention, legal and political science scholars have moved increasingly towards a
view that hard and soft international law can build upon each other as complementary
tools for international problem-solving. These scholars contend that hard and soft law
mechanisms can build upon each other in predominantly two ways. Non-binding soft law
can lead the way to binding hard law, and binding hard law can subsequently be
elaborated through soft law instruments. For example, a leading US international law
casebook introduces the concept of soft law in terms of how “soft law instruments are
consciously used to generate support for the promulgation of treaties or to help generate
customary international law norms [i.e. binding hard law],” and how “treaties and state
practice give rise to soft law that supplements and advances treaty and customary
norms.”74 Scholars thus take a pragmatic policy-oriented approach to show how hard and
soft law instruments provide not only alternative tools for cooperation, but also serve as
72
Janet Levit, The Dynamics of International Trade Finance Regulation: The Arrangement on Officially
Supported Export Credits, 45 HARV. INT’L L.J. 65, 141 (2004).
73
Abbott & Snidal, Hard and Soft Law, supra note, at 421, 423 (“We argue that international actors choose
to order their relations through international law and design treaties and other legal arrangements to solve
specific substantive and political problems”).
74
Dunoff et al. 2006: 95.
27
complements of each other in dynamic processes of legalization, leading to greater
international cooperation and coordination over time.75
These scholars’ views regarding hard and soft law complements can be divided
into the same three camps: (1) positivist legal scholars who find that soft law is inferior to
hard law but should not be discarded because it can potentially lead to hard law; (2)
rationalist scholars with a political economy orientation who view soft law as a
complement to hard law which serves state interests in many contexts, including because
the hard law option is not initially available because of its costs; and (3) constructivist
scholars who view soft law as a complement to hard law which can facilitate dialogic and
experimentalist transnational and domestic processes which transform norms,
understandings and perceptions of state interests.
--------------------------------Insert Table 1 about here
--------------------------------Positivist legal scholars find that soft law is inferior to hard law because it lacks
formally binding obligations which are interpreted and enforced by courts, and it thus
fails to generate jurisprudence over time.76 For this reason, these scholars view soft law
as a second-best alternative to hard law, either as a way-station on the way to hard law, or
as a fall-back when hard law approaches fail.77 Kirton and Trebilcock, for example, in a
volume regarding the use of soft and hard law in global trade, environment and social
governance, find “strong support for the familiar feeling that soft law is a second-best
substitute for a first-best hard law, being created when and because the relevant hard law
does not exist and the intergovernmental negotiations to produce it have failed.”78
Sindico likewise writes, “[s]oft law, and voluntary standards in particular, are a stage in
the creation of international legal norms. It is as a pioneer of hard law that soft law finds
75
See, e.g., DINAH SHELTON, COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE
INTERNATIONAL LEGAL SYSTEM (2000) (“combinations may be essential to achieve specific goals”);
Chinkin, supra note, at 853.
76
See, e.g., Klabbers, Redundancy, supra note.
77
See Weil, supra note; Klabbers, Undesirability, supra note.
78
Kirtin & Trebilcock, supra note, at 24.
28
its raison d’être in the normative challenge for sustainable global governance”79 Sindico,
for example, views the corporate social responsibility (CSR) movement in terms of “the
beginning of a step towards comprehensive hard law in this field.”80
These scholars tend to view soft law solely in terms of its relationship to a hard
law ideal. In her valuable introduction to a special volume on soft law organized by the
American Society of International Law, for example, Dinah Shelton categorizes soft law
in the following five ways, each of which is linked to positivist conceptions of hard law:
“(i) Elaborative soft law, that is principles that provide guidance to the
interpretation, elaboration, or application of hard law [i.e. soft law which builds
from hard law]…
(ii) Emergent hard law, that is principles that are first formulated in non-binding
form with the possibility, or even aspiration, of negotiating a subsequent treaty, or
harden into binding custom through the development of state practice and opinio
juris [i.e. soft law which builds to hard law]…
(iii) Soft law as evidence of the existence of hard obligations [i.e. soft law which
builds to hard customary international law].
(iv) Parallel soft and hard law, that is similar provisions articulated in both hard
and soft forms allowing the soft version to act as a fall-back provision.
(v) Soft law as a source of legal obligation, through acquiescence and estoppel,
perhaps against the original intentions of the parties.”81
79
Sindico, supra note, at 846. He elaborates that soft law “must be considered to be a step in the
progressive development of international norms;” that soft law and voluntary stands “must be a phase in the
normative creation of international rules;” and that voluntary standards should be seen to “constitute the
first step towards the creation of hard law in the future.” Similarly Karl Zemanek speaks of soft law in
terms of “tools for shaping the future development of the law, either by building opinio juris for custom
[customary international law] or by shaping a consensus for future multilateral conventions.” Zemanek
1998: 858-859.
80
Sindico, supra note, at 836.
81
SHELTON, COMMITMENT AND COMPLIANCE, supra note, at 30-31 (while putting forth this categorization,
Shelton admits that it “is problematic in that it defines soft law in terms of its distinction from hard law, and
not in its own terms”). Shelton’s fourth category has also been referred to as co-regulation: a regulatory
regime premised on both mandatory government regulation and voluntary self-regulation or regulatory
measures with both binding and non-binding elements. See, e.g., K. Gordon, Rules for the Global
29
Reinicke and Witte likewise stress, in their cross-cutting overview in the same volume,
how soft law agreements “can and often do represent the first important element in an
evolutionary process that shapes legal relationships among and between multiple actors,
facilitating and ultimately enhancing the effectiveness and efficiency of transnational
policy-making.”82 Similarly, Kirton and Trebilcock conclude that “at best, it [soft law],
is a complement.”83
Abbott and Snidal, in contrast, taking a rational institutionalist political economy
approach, are agnostic as to whether hard or soft law is preferable because they focus on
varying state interests in different contexts.
Sometimes states prefer hard law and
sometimes soft law to advance their joint policy aims. In their work on the “pathways to
cooperation,” Abbott and Snidal nonetheless define three pathways of which two
explicitly involve the progressive hardening of law. The three pathways are: the use of a
framework convention which subsequently deepens in the precision of its coverage; the
use of a plurilateral agreement which subsequently broadens in its membership; and the
use of a soft law instrument which subsequently leads to binding legal commitments.
They note how these three pathways can be “blended” and “sequenced,” once more
resulting in a mutually-reinforcing, evolutionary interaction between hard and soft law
mechanisms.84
In Abbott and Snidal’s first pathway, states enter into a binding framework
agreement which is soft in terms of its substantive content. These framework provisions
are then elaborated over time. Abbott and Snidal find that this strategy can be useful
where there is technical uncertainty so that the parties need to facilitate information
generation to reach a common understanding of a problem and its solution. They note
how constructivist-oriented scholars promote this approach, contending that a framework
convention can catalyze dialogic processes of transnational norm creation and community
Economy: Synergies between Voluntary and Binding Approaches (OECD Working Paper on International
Investment No. 1999/3).
82
Reininke & Witte, supra note, at 76.
83
Kirtin & Trebilcock, supra note, at 27.
84
Abbott & Snidal, Hard and Soft Law, supra note, at 80.
30
building.85 Abbott and Snidal, however, remain agnostic on this point, finding that
framework conventions can be useful even if they do not catalyze processes that affect
state perceptions of their interests. The building of the ozone regime is a classic example
of successful use of this pathway, starting with the framework Vienna Convention for the
Protection of the Ozone Layer and leading to the Montreal Protocol on Substances that
Deplete the Ozone Layer, with its binding commitments, and the Protocol’s subsequent
amendment that led to a ban on the use of certain substances.86 The Vienna Convention
helped to foster cooperative research and information exchange and laid a foundation for
further negotiations that led to binding commitments and an enforcement mechanism.
The second pathway suggested by Abbott and Snidal is for states to start with a
plurilateral agreement which other states may join over time.
They note how this
pathway permits states which are uncertain about other states’ level of commitment to
screen members.
By excluding non-members from the benefits of this regime, the
original participants can create incentives for other states to join over time.87 The history
of the EU and the WTO with their sequential increases in membership are examples of
successful uses of this pathway.
Similarly, twenty-five nations signed the original
Vienna Convention for the Protection of the Ozone Layer, while over 200 countries were
members of the Montreal Protocol at the start of 2008.
The third pathway recommended by Abbott and Snidal directly involves using
non-binding soft law tools to arrive eventually at hard law obligations. Abbott and Snidal
find that this pathway should be used, for example, if there is initial uncertainty regarding
an international agreement’s domestic political implications. They maintain that this
mechanism “normatively permits entrepreneurs to persuade skeptics” at the domestic
level to facilitate the signing and ratification of a binding agreement.88 They point to a
85
Abbott & Snidal, Pathways to Cooperation, supra note, at (referring to Brunnee & Toope, supra note).
Cf. George W. Downs, David M. Rocke & Peter N. Barsoom, The Transformational Model of International
Regime Design: Triumph of Hope or Experience, 465 COLUMBIA J. TRANSNAT’L L. (2000).
86
See, e.g., RICHARD BENEDICK, OZONE DIPLOMACY (1991).
87
Lloyd Gruber offers a realist variant of this approach, noting how powerful states can create regimes that
further their particular interests through wielding “go-it-alone” power, leaving less powerful states little
choice. Gruber contends that even though these states may have been worse off with the regime than
without it, the option of no regime no longer exists, so that they must either choose between exclusion from
the benefits of the new regime or becoming a member. See LOYD GRUBER, RULING THE WORLD: POWER
POLITICS AND THE RISE OF SUPRANATIONAL INSTITUTIONS (2000).
88
Abbott & Snidal, Pathways to Cooperation, supra note, at 70.
31
number of successful examples of this strategy, such as the 1985 Food and Agricultural
Organizastion (FAO) voluntary code of conduct on pesticides which eventually led to the
1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade,89 and the 1994 OECD
Recommendation on Bribery in International Business Transactions that led to the 1997
OECD Anti-bribery Convention.90 Analysts of international environmental agreements
contend that soft law instruments have “set the pace for hard law development” in this
area, pointing to case studies of “marine pollution, transboundary air pollution, and
fisheries subsidy control.”91 For example, Ronald Mitchell has addressed how soft law
instruments helped pioneer a path toward more effective regulation of oil spills at sea.92
Finally, constructivist-oriented scholars likewise focus on how hard and soft law
are used as complements. Trubek and his co-authors, for example, contend that soft law
instruments can help to generate knowledge (as through the use of benchmarking, peer
review, and exchange of good practices), develop shared ideas, build trust, and, if
desirable, establish “non-binding standards that can eventually harden into binding rules
once uncertainties are reduced and a higher degree of consensus ensues.”93 Janet Levit,
working in a legal pluralist framework, finds that international soft law instruments
generate normativity that affects both subsequent hard law enactments and judicial
decisions.94 She finds that hard and soft law regimes engage in ongoing interactions in
which each is reconstitutive of the other.95 Braithwaite and Drahos point both to the
importance of using framework conventions and soft law as a first step which “can, over
89
See also Mohamed Ali Mekouar, Pesticides and Chemicals: The Requirement of Prior Informed
Consent, in COMMITMENT AND COMPLIANCE (Dinah Shelton ed,. 2000); M. PALLEMAERTS, TOXINS AND
TRANSNATIONAL LAW: INTERNATIONAL AND EUROPEAN REGULATION OF TOXIC SUBSTANCES AS LEGAL
SYMBOLISM (2003).
90
See also Kenneth W. Abbott & Duncan Snidal, Values and Interests: International Legalization in the
Fight Against Corruption, 31 J. LEGAL STUD. 141 (2002).
91
Jorgen Wettestad et al., Soft Law, Hard Law, and Effective Implementation of International
Environmental Norms, GLOBAL ENV’TL POLITICS, vol. 6:3, 104, at 105 (2006).
92
Ronald B. Mitchell, Regime Design Matters: International Oil Pollution and Treaty Compliance, 48
INT’L ORG. 425 (1994).
93
Trubek et al., Toward a Theory of Hybridity, supra note, at 32. See also Trubek & Trubek, supra note.
94
Levit, supra note…, at 132-141. Levit takes a “bottom’s up” “legal pluralist” approach which examines
how transnational lawmaking involves both “an informal process of norm creation” and “a hardening
process whereby such informal norms embed in official legal systems.” Id. at 110. Levit contends: “The
drama in these bottom-up cases is how the informal, practice-based rules escape relatively confined groups
and ‘bubble-up’ to become ‘law.’”
95
Id. at 107, 162.
32
time be more detailed through rule-making.”96 These authors contend that neither hard
nor soft law provisions should necessarily be privileged because states and non-state
actors need flexibility to address situations that involve uncertainty and require
experimentation. Thus, while these scholars also examine how hard and soft law can be
combined in “hybrid constellations” in a complementary manner, they differ from
positivist and rationalist scholars in stressing that hard law can and often should serve as
a fall-back base line for soft law experimentation, as opposed to only soft law being
viewed as a fall-back.97 Some scholars working in an experimentalist “new governance”
tradition go further, arguing that soft law approaches should generally be privileged to
promote responsive governance.98
II. Theorizing International Hard and Soft Law Interaction:
Power, Distributive Conflict, Regime Complexes and Implementation
The existing literature on hard and soft law typically takes as its starting
assumption the possibility of joint gains from cooperation among states, and proceeds to
explore the advantages and disadvantages, the choice, and the effectiveness of hard and
soft law approaches to international cooperation. We agree that the prospect of joint
gains is an important prerequisite for international cooperation, and we have seen in Part
I that such prospects continue to exist for international policy cooperation.
Nevertheless, we cannot fully understand our central question – the interaction of
hard and soft law – without considering the ways in which power, distributional conflict,
regime complexes, and the challenges of implementation affect how hard and soft law
regimes interact, and whether they will do so in a mutually-reinforcing manner. Indeed,
we argue below that the harmonious, complementary interaction of hard and soft law
96
BRAITHWAITE & DRAHOS, supra note… at 261-62, Braithwaite and Drahos also address the role of
modeling as a key mechanism for the creation of global business law, and the importance of epistemic
communities. They found modeling “to be an important mechanism in every domain” of the thirteen that
they studied. Id. at 539. The write that “[i]f regulations and procedural rules are the hardware of
international regimes, the knowledge and discourses of epistemic communities of actors are its software.”
Id. at 501.
97
See, e.g., Trubek et al., Toward a Theory of Hybridity, supra note…..
98
See, e.g., Simon 2005; and Sable and Simon 2005
33
approaches to international cooperation relies on a hitherto unspecified set of scope
conditions, including in particular a low level of distributional conflict among the players.
These conditions may hold in certain areas, we maintain, but there are good theoretical
and empirical reasons to believe that variation in distributive conflict will spur hard and
soft law instruments to interact in different ways, sometimes as alternatives, sometimes as
complements and sometimes as antagonists.
In this section, therefore, we lay out our theoretical argument about the reasons
why, and the conditions under which, we expect hard and soft law to interact as
antagonists. The analysis is in four parts. First, we argue that students of both hard and
soft law have undertheorized the importance and the sources of state (or, in the case of
the European Union, regional) power, and we examine the most powerful players in
issue-areas such as international economic regulation (section A). Next, we argue that
international cooperation is frequently characterized by intense distributional conflict, in
which various players may have sharply differing preferences over cooperative outcomes,
such as international regulations and standards, with each side attempting to export its
own regulatory preferences and force the costs of adjustment onto others (section B).
Third, we examine the problems of “regime complexes” and legal fragmentation, arguing
that states with divergent preferences will have strong incentives to engage in forum
shopping and “strategic inconsistency,” using the opportunities provided by competing
legal fora to press their substantive preferences (section C). Fourth and finally, we
examine the problem of implementing international agreements in domestic politics,
arguing that implementation problems both undermine any clear distinction between hard
and soft law, and set off recursive cycles of international law- and norm-making, with
hard and soft law sometimes being used as complements and sometimes as antagonists.
Parts III and IV of the Article will then build upon this analysis, making the argument
that under conditions of distributive conflict and regime complexes, hard and soft law
interact not only as alternatives and complements, but also as mutually undermining
antagonists.
A. Power in International Governance
34
The canonical stories of hard and soft law, whether positivist, rational
institutionalist, or constructivist, depict the adoption of hard and soft law as issues of
choice. These literatures offer rich (if not always compatible) accounts of how and why
actors, and in particular states, might opt for harder or softer legal agreements, as well as
of how hard and soft law may differentially affect the behavior and possibly the interests
of these actors.
With a few notable exceptions, however, these literatures do not
foreground the issue of power, and, in particular, discuss how power differentials among
actors shape the adoption and implementation of hard and soft legal instruments.
Similarly, the literature on international regulatory cooperation has devoted considerable
attention to understanding the adoption of both hard and soft-law regulatory agreements,
but has seldom paid explicit attention to the role that power plays in determining
regulatory outcomes. There is a tendency in much of the literature to view international
regulation and standard-setting as a technocratic process, in which the guiding
consideration is efficiency, and distributive concerns recede in importance.99
Increasingly, however, studies of international regulation have begun to
acknowledge the significance of power in shaping the adoption, substantive content, and
compliance with international regulatory regimes.100 Indeed, the emerging picture of
international regulatory cooperation is one in which differences in power matter greatly
in the adoption and implementation of international legal rules. Both Mattli and Büthe
and our own previous work, for example, have emphasized potential distributive conflict
among states that stand to gain differentially from various proposed standards, and have
suggested that differences in power resources can determine substantive standards and
distributive outcomes in those cases.101
Daniel Drezner goes further, arguing that
agreement among economically powerful states – and in particular between the United
States and the European Union, the dominant economic players on the world stage – is a
99
See e.g. Giandomenico Majone, Regulating Europe (London: Routledge, 1996), and Thomas Loya &
John Boli, “Standardization and the World Polity: Technological Rationality over Power,” in Boli and
Thomas (eds) Constructing World Culture: International Nongovernmental Organizations since 1875
(Stanford: Stanford University Press, 1999).
100
See e.g. Daniel W. Drezner, All Politics is Global: Explaining International Regulatory Regimes
(Princeton: Princeton University Press, 2007); Braithwaite and Drahos, Global Business Regulation, supra
note…; and Walter Mattli and Tim Büthe, “Setting International Standards: Technological Rationality or
Primacy of Power?” World Politics, Vol. 56, No. 1 (2003), pp. 1–42.
101
See Mattli and Büthe, Setting International Standards; supra note…; and Pollack and Shaffer, “The
Future of Transatlantic Economic Relations.”
35
necessary condition for any successful regulatory regime.102 To these claims we add
another, namely that the interaction of hard and soft law will be shaped primarily by the
preferences of powerful states such as the US and the EU, and to a lesser extent by
groups of other states that attempt to thwart the aims of powerful countries through the
strategic deployment of international legal instruments.
Foregrounding the role of power and inequality in the choice and interaction of
hard and soft law, however, is not sufficient; we must also address the various ways in
which power is manifested. To start, the potential sources of state power are multiple,
including military capacity, economic size, domestic institutional strengths, policy
expertise, and resources conveyed by international institutions, and can be expected to
vary by issue-area.103 We focus here on the role of interests, institutions and ideas.104 In
the security arena, for example, military power may be expected to loom large, as well as
economic power and the advantages conveyed by domestic and international institutions
(such as permanent membership in the United Nations Security Council with veto
power), and we shall return to the security arena at the end of Part IV of this Article. In
the economic realm, by contrast, we concur with Drezner that the post powerful actors
and influential actors in international regulatory policy are the United States and the
European Union in large part because of their ability to exercise market power, but also
for other reasons that we indicate below. These resources facilitate the ability of the US
and EU to advance their interests, and the interests of constituencies within them through
hard- and soft- law instruments.
The US and the EU collectively represent over 50 percent of global production,
and over 40 percent in terms of purchasing power parity.105 In 2006, EU gross domestic
102
Drezner, All Politics is Global, supra note.
A detailed discussion of power resources is beyond the scope of this article. For good discussions, see
e.g. the essays in Michael N. Barnett and Raymond Duvall, eds., Power in Global Governance (New York:
Cambridge University Press, 2005). For an assessment of the use of different mechanisms to make global
business regulation in different policy areas, from military and economic coercion to modeling and
“capacity building,” see Braithwaite and Drahos, Global Businesss Regulation, supra note..
104
We do not assess power from Marxist or Foucauldian perspectives respectively involving false
conciousiness and the shaping of identity. Cf. Barnett & Duvall, Power, supra note…
105
See World Bank, at http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf, and
http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf (EU GDP at 27.2% of world
GDP in 2006, and at 20.6% in PPP terms; and US GDP at 24.6% of world GDP in 2006, and at 20% in PPP
103
36
product was slightly larger than the United States’, but not by a significant extent.
Because of the size of their markets, where the US and EU agree on a common regulatory
policy, they are well-positioned to promote it globally.
For example, as Germain
contends in the area of financial regulation, the size of the international markets handled
in New York, London and a few other major cities “empower their respective state
authorities” to be leaders in global regulation.106 Where they disagree, there is often
deadlock, reflecting the equal size of their economies and markets. With the rise of the
economies of China, India, Brazil and other developing countries, the US and EU have a
long-term interest in exercising global regulatory leadership now in order to lock their
preferences into international law and institutions, but the conflicts between them may
inhibit their ability to do so.
The US and EU have launched a series of initiatives to promote transatlantic
collaboration in global governance that we have assessed in our earlier work.107
The
creation of the New Transatlantic Agenda (NTA) and the Transatlantic Economic
Partnership (TEP) during the 1990s were premised on the idea of joint gains from
transatlantic economic integration and in particular from joint regulatory cooperation
across a wide range of issue-areas. Alongside the traditional processes of trade
negotiation and trade dispute resolution, the transatlantic partners forged new
mechanisms for cooperation among economic regulators in areas ranging from
competition policy to data privacy, the environment, and food safety.108 Among the goals
of the NTA was to promote US and EU joint leadership in global economic governance.
These goals were reasserted during the second term of the George W. Bush
administration, in particular with the creation, in 2007, of a Transatlantic Economic
Council designed to lend high-level impetus to new and continuing efforts at transatlantic
terms). Their individual shares of global GDP in PPP terms, however, have declined in particular, as they
collectively made up over 50% of world production in PPP terms as recently as 2000.
106
RANDALL GERMAIN, THE INTERNATIONAL ORGANIZATION OF CREDIT 163 (1997). Similarly,
“adjustment in international monetary relations since 1972 has perhaps focused more on adjusting to the
consequences of a US policy of unilateralism concerning the dollar than on adjustment based on a
reciprocity of interests.” BRAITHWAITE & DRAHOS, supra note, at 135 (citing GERMAIN, supra, at 144).
Again, as regards securities law, Braithwaite and Drahos find that “the US, through the agency of the SEC,
has usually been the state that has dictated terms.” Id. at 157.
107
Pollack and Shaffer, Transatlantic Governance, 2001
108
Bermann, Herdegen and Lindstreth 2001; Pollack and Shaffer 2001.
37
economic cooperation in various issue-areas.109
Although market size generally explains the growing role of the EU as a global
actor in economic and regulatory fields, US and EU bargaining power can also be
affected by each side’s institutional characteristics. Where policy-making is reserved to a
sub-federal level in the United States or a sub-EU level in the European Union, then the
US or EU respectively will be in a weaker bargaining situation at the international level.
The United States over time has more frequently been a global leader in regulatory
domains because it has had greater institutional power at the federal level, combined with
its great market power. However, in many regulatory areas, the US has fragmented
authority over regulatory standard-setting, leaving it to US states within the federal
context or to private associations.
As Walter Mattli and Tim Büthe write, “When
standardization becomes an increasingly international process, the organizational
characteristics of the European standardization system make for a more felicitous match
between the national and international institutions than the characteristics of the largely
anarchic American system.”110 They conclude, “[t]he process of aggregating technical
preferences and projecting consensus standards to a higher level is considerably more
difficult in the decentralized and uncoordinated standards system of the U.S., where the
nominal national representative for international standardization is a weak and contested
institution.” 111
109
See Framework for Advancing Transatlantic Economic Integration between the United States of
America and the European Union, April 30, 2007, U.S. Dept of State Press Release (establishing a
Transatlantic Economic Council), available at http://www.state.gov/p/eur/rls/prsrl/84004.htm. The two
sides created “a framework for advancing transatlantic economic integration,” prioritizing cooperation for
the protection of intellectual property, the assurance of secure trade, the reconciliation and accommodation
of accounting standards, the support of innovation, and the removal of barriers to investment. Id. A central
objective of the new initiative is to facilitate joint US and EU global leadership in international trade and
regulatory governance. See Simon Evenett & Robert Stern, Condemned to Cooperate, in SYSTEMIC
IMPLICATIONS OF TRANSATLANTIC REGULATORY COOPERATION AND COMPETITION (Simon Evenett &
Robert Stern eds., 2009) (forthcoming) (noting the establishment of joint EU-US approaches to commercial
matters of global importance as one of the three broad objectives).
110
Walter Mattli & Tim Büthe, Setting International Standards, 56 WORLD POLITICS 1, 27 (2003). They
find that “the U.S. System of standardization is fragmented, market driven, and characterized by a high
degree of internal competition... [I]t operates with little government oversight and no public financial
support…. American SDOs have a long tradition of keeping government at arms length, and attempts at
governmental interference in the workings of the private standards system are few.” Id. at 23-24.
111
Id. at 27.
38
As greater policy-making powers have been delegated within Europe to EU
institutions over time, the EU has increased its negotiating clout internationally. Because
of the size of the EU’s internal market, once the EU member states harmonize regulatory
policies at the EU level and develop corresponding EU-level regulatory institutions, the
EU is well-positioned to exercise economic clout as a global actor. To give an example,
Elliot Posner addresses how the establishment of the EU’s regulatory competence and its
extraterritorial reach are key explanations for the EU’s increased authority over financial
services regulation.112 Institutional developments in the EU have affected powerful US
firms who, in turn, motivated the US Securities and Exchange Commission to work with
EU authorities to accommodate and recognize EU standards in a number of areas. This
development occurred following an extended period of benign (or malign) US neglect of
European approaches to financial services regulation.
As the EU assumes greater
institutional power in Europe, it should also be able to exercise greater authority in
international governance. In other words, the EU enhances its international authority
both by widening (enhancing its market power through increasing EU membership) and
by deepening (enhancing its institutional power through expanding the scope of EU
authority to more policy areas).
The US and EU also exercise considerable authority globally because of the
regulatory expertise that they have developed domestically. They provide regulatory
models, knowledge and ideas for others to immolate, adapt and internalize. In their study
of thirteen areas of global business regulation, John Braithwaite and Peter Drahos
conclude that “the fact that US and EU law are modeled more than others is not only
because of their economic hegemony and the fact that weaker economies want to meet
their terms for admission to the clubs they dominate. In the case of the US in particular,
modeling is underwritten by the sheer depth of regulatory expertise Washington agencies
can offer.”113 They find that the US played a leading role in twelve of the thirteen areas
they studied (all but for international labour regulation) and the EU played a leading role
in nine of these areas.114 Overall, they find that “the US is the biggest demander of new
112
Elliot Posner, Market Power Without a Single Market: The New Transatlantic Relations in Financial
Services, in THE FUTURE OF TRANSATLANTIC ECONOMIC RELATIONS (David M. Andrews et al., eds., 2005).
113
BRAITHWAITE & DRAHOS, supra note, at 542.
114
Id. at 476-477 (see chart).
39
regulatory agreements as well as the strongest resister of regimes other states want.”115
However, “the EC [European Community] is more important because of the way it
dominates the US in agenda-setting in a few arenas — prescription drugs, food,
automobile safety — and is nearly an equal partner to the US in agenda-setting for other
regimes.”116 As a result, they find that while “most global regulatory agendas are set by
the US; if the EC vetoes those agendas, they go nowhere.”117
In sum, effective cooperation between the world’s powers offers the promise of
mutual gains and more effective global leadership. Yet a careful cross-sectoral analysis of
transatlantic economic relations demonstrates that the cooperation between economic
powers varies significantly by issue area, limiting each side’s ability to exercise joint
leadership in global governance.118 This variation reflects differences in power, as well
as the distributive implications of the governance alternatives respectively favoured. It is
to these distributive issues that we now turn.
B. The Challenges of International Cooperation: Distributive Conflict
Despite the general promise of regimes in fostering international cooperation to
achieve joint gains, international relations scholars have identified a number of potential
obstacles to successful regime-based cooperation. The realist literature, for example, has
emphasized the dual challenges of (1) cheating and (2) relative gains as the primary
obstacles to successful cooperation, focusing on concerns over national security and the
balance of power.119 By contrast, the impediments to cooperation that we identify here
are of a more general nature, and are consistent with the assumptions of non-realist
115
Id. at 478.
Id. at 485.
117
Id. at 485.
118
See Pollack & Shaffer, Transatlantic Governance, supra note…, and Andrews, Pollack, Shaffer and
Wallace, The Future of Transatlantic Economic Relations (2005), available at
http://search.ssrn.com/sol3/papers.cfm?abstract_id=953958.
119
See Joseph Grieco, Anarchy and the Limits of Cooperation, 42 INT’L ORG. 485 (1988); DAVID A.
BALDWIN, NEOREALISM AND NEOLIBERALISM: THE CONTEMPORARY DEBATE (1993); and Andreas
HASENCLAVER ET AL., THEORIES OF INTERNATIONAL REGIMES 113-35 (1997). Subsequent work by
neoliberal institutionalists, however, has found that international regimes can mitigate concerns about
cheating, while concerns over relative gains emerges operate only under certain restrictive conditions; see
e.g. Robert Powell, The Problem of Absolute and Relative Gains in International Relations Theory, 85 AM.
POLITICAL SCI. REV. 1303 (1991); Duncan Snidal, International Cooperation Among Relative Gains
Maximizers, 35(4) INT’L STUD. Q. 387 (1991); BALDWIN, supra; HASENCLAVER ET AL., supra, at 125-34.
116
40
theories of international relations regarding the importance of mutual gains. We focus in
this section on the problem of distributive conflict. Distributive conflicts between and
within states, we note, need not only arise from economic or protectionist motives, but,
more broadly, can and do reflect different configurations of interests, institutional
procedures, and ideological and cultural perspectives at the domestic level, which in turn
shape the preferences of states at the international level.120
International law theorists, taking from regime theory in international relations,
too frequently point to the Prisoner’s Dilemma (PD) game in assessing the role of
international law.121 To give one leading example, Andrew Guzman in his impressive
book How International Law Works, writes, “It is in the context of [the prisoner’s
dilemma] game that the theory is applied throughout most of this book.”122
The
distributive challenge to regime theory calls into question the appropriateness of the
Prisoner’s Dilemma game as the proper model for most instances of international
cooperation because it fails to capture the potential for distributive conflicts among the
participants. In the classic PD model, states are assumed to have a common interest in
reaching a cooperative outcome, and the primary impediment to successful cooperation is
the fear that other states will cheat on their agreements. In PD models of international
relations, these problems are typically addressed by creating mechanisms for the
monitoring of state behavior and the sanctioning of states that violate the terms of the
agreement — i.e. international law. If PD is an accurate description of the situation
facing states, then international regimes and international hard and soft law should indeed
facilitate cooperation by monitoring compliance and (in the case of hard law disputesettlement bodies) by providing for enforcement.
However, the Prisoner’s Dilemma game ignores another important obstacle to
successful cooperation, namely conflicts among states with different interests over the
distribution of the costs and benefits of cooperation.123 That is to say, when states
120
For a broader discussion, see Pollack and Shaffer, When Cooperation Fails (chapter 2).
See McAdams, Beyond the PD, supra note… (regarding the almost exclusive use of the PD game in
legal journals generally, with the Battle of the Sexes game indicated only 2.5% as frequently as the PD
game).
122
See, e.g., GUZMAN, RATIONAL CHOICE, supra note, at 25.
123
The distributive conflict to which we are referring here relates, not to the problem of relative gains in
relation to the balance of state power, but to the distribution of absolute gains from cooperation among two
121
41
cooperate in international politics, they do not simply choose between “cooperation” and
“defection,” the binary choices available in PD games, but rather they choose specific
terms of cooperation, such as the specific level of various tariffs in a trade regime, or the
precise levels of greenhouse gas emissions in an environmental regime, and so on. As
James Morrow notes, “There is only one way to cooperate in prisoners’ dilemma; there
are many ways to cooperate in the real world.”124 In game-theoretic terms, there may be
multiple equilibria – multiple possible agreements that both sides prefer to the status quo
– and states face the challenge of choosing among these many possible agreements.
Different terms of cooperation can have different distributive implications,
affecting states’ calculation of costs and benefits, both economically and politically. In
an international trade agreement, for example, one side may prefer to drastically reduce
tariffs on industrial goods, while another may place a stronger emphasis on reducing
agricultural tariffs or agricultural subsidies.
In this view, states face not only the
challenge of monitoring and enforcing compliance with a trade agreement, as in the PD
model, but also of deciding on the terms of cooperation.125 Yet PD models, with their
binary choice of cooperation or defection and their emphasis on Pareto-improving
outcomes, fail to capture these elements of international cooperation.
We therefore offer three specific, overlapping arguments that are most relevant to
international cooperation and the use of hard and soft law instruments toward that end.
First, regime theory, with its emphasis on PD and collective-action models, has
under-emphasized both distributive conflict and the role of state power in determining the
outcome of international negotiations. This, in turn, has affected international law
scholarship, which has welcomed regime theory for its validation of international law’s
or more states. For a range of views on the challenge of distributive conflict in international cooperation,
see Stephen D. Krasner, Global Communications and National Power: Life on the Pareto Frontier, 43
WORLD POLITICS 336 (1991); James Morrow, The Forms of International Cooperation, 48 INT’L ORG. 387
(1994); James Fearon, Bargaining, Enforcement, and International Cooperation, 52 INT’L ORG. 269
(1998); GRUBER, supra note; Koremonos et al., Rational Design, supra note; Mattli & Buthe, Setting
International Standards, supra note; and DANIEL W. DREZNER, ALL POLITICS IS GLOBAL: EXPLAINING
INTERNATIONAL REGULATORY REGIMES (2007).
124
Morrow, supra note, at 395.
125
See also McAdams, Beyond the PD Game, supra note…, 1t 23.As McAdams writes, “[b]ut the PD game
does not capture these issues of distortion… There is no normative complexity and no controversy.” Id., at
25.
42
role. In international politics, as Stephen Krasner argues, efforts at cooperation often take
the form of a Battle of the Sexes game, in which different states have clear preferences
for different international standards.126 Even if all states benefit from a common standard,
raising the prospect of joint gains, the distribution of those gains depends on the specific
standard chosen, and the primary question is whether and how states can secure
cooperation on their preferred terms.
Put differently, Krasner argues, the most important question is not whether to
move toward the “Pareto frontier” of mutually beneficial cooperation, but which point on
the Pareto frontier will be chosen. Under such circumstances, he suggests, outcomes are
determined primarily by the use of state power, which may be employed in one of three
ways: (1) to determine who may play the game (regime membership); (2) to dictate the
rules of the game (or our purposes, whether through hard or soft law), including the
possibility of a single state moving first and imposing a de facto standard on others; and
(3) to employ issue-linkages, including through the application of threats and promises in
related issue-areas, to change the payoff matrix for other states and induce those states to
accept one’s preferred standards.127 Krasner views such coordination regimes as stable
and self-enforcing, yet this self-enforcing nature of the regime should not obscure the fact
that the regime produces winners (who secure cooperation on terms closer to their
preferences) and losers (forced to cooperate on terms favorable to others), and that state
power plays a key role in determining the shape of the regime and the standards adopted
under the regime.
126
In the Battle of the Sexes game, both states agree on the least preferable outcome or outcomes to be
avoided, and both agree to coordinate their behavior to avoid such an outcome, but each one prefers a
specific (equilibrium) outcome. The canonical example, from which the Battle game takes its name, is one
in which two players (say, a husband and wife) agree that they want to take a vacation together, but
disagree on the destination (he prefers the mountains, she the beach). In such a game, the primary
challenge is not the threat of cheating (since both players prefer some joint vacation to being alone), but
rather of deciding which of two possible equilibrium outcomes (the mountains or the beach) will be
selected. Any agreement in Battle is likely to be self-enforcing once adopted, with little need for
monitoring or enforcement mechanisms, since both players prefer either cooperative outcome to
uncoordinated behavior. By contrast with the PD game, however, the Battle game is characterized by a
strong distributive conflict over the terms of cooperation. Krasner, Global Communications, supra note, at
339; Arthur Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT’L ORG. 399
(1982).
127
Krasner, Global Communications, supra note, at 340. The use of hard and soft law instruments can also
be viewed in terms of the exercise of “soft power,” as used by Joseph Nye, Soft Power: The Means to
Success in World Politics (2004).
43
We should, therefore, predict the outcome of a Battle of the Sexes game to be
determined in large part by powerful states, with weaker players being excluded from
negotiations, or forced to accept a fait accompli, or induced to accept powerful states’
terms through threats and promises in related issue-areas. In the global regulatory
context, for example, smaller countries will be placed in a difficult situation when
powerful players like the US and the EU agree, as well as when they clash. When the US
and EU agree, smaller countries will be under considerable pressure to adapt to US and
EU standards. When the US and EU disagree, smaller countries may have a greater
range of choices, on the one hand, but they may face considerable countervailing
pressures on the other, caught between the US-EU conflict.
Second, distributive conflict is not unique to Battle of the Sexes games, but
emerges as a generic and nearly ubiquitous feature of all international cooperation. By
contrast with the approach of situation-structuralists in international relations theory who
distinguish among different types of game contexts,128 James Fearon has argued in a
landmark article that it is misleading to attempt to characterize international cooperation
over any given issue as either a Prisoners’ Dilemma or a Battle game. Rather, Fearon
maintains,
… understanding strategic problems of international cooperation as having a
common strategic structure is more accurate and perhaps more theoretically
fruitful. Empirically, there are always many possible ways to arrange an arms,
trade, financial or environmental treaty, and before states can cooperate to enforce
128
In light of the problems with PD models, an increasing number of scholars turned towards a “situationstructural” approach to cooperation, in which different problems or issue-areas are characterized in terms of
distinct 2 x 2 games, of which PD is only one possibility. Arthur Stein, for example, offered a distinction
between what he called “collaboration” and “coordination” games. Stein’s distinction between
collaboration and coordination games would later be taken up by scholars like Duncan Snidal, Kenneth
Oye and Lisa Martin, who would develop a more general “situation-structural” approach to international
cooperation, in which different empirical situations could be modeled using a series of 2 x 2 games such as
Harmony, PD, Pure Coordination, Battle, Assurance, Chicken, and Deadlock. For good overviews of the
situation-structural approach, see e.g. Duncan Snidal, Coordination Versus Prisoner’s Dilemma:
Implications for International Cooperation and Regimes, 79 AM. POLITICAL SCI. REV. 923 (1985); Duncan
Snidal, “The Game Theory of International Politics,” in Cooperation Under Anarchy ((Kenneth Oye ed.,
1986); LISA MARTIN, COERCIVE COOPERATION (1992); and HASENCLAVER ET AL., supra note. For a
critique of the approach, see Fearon, supra note, at 272-75. For a pioneering application to international
law, see GOLDSMITH & POSNER, supra note, and the critiques in Andrew Guzman, The Promise of
International Law, 92 VA. L. REV. 533 (2006), and Oona Hathaway & Ariel N. Lavinbunk, Rationalism
and Revisionism in International Law, 119 HARV. L. REV. 1404 (2006) (Book Review).
44
an agreement they must bargain to decide which one to implement.
Thus,
regardless of the substantive domain, problems of international cooperation
involve first a bargaining problem (akin to the various coordination games that
have been studied) and next an enforcement problem (akin to a Prisoners’
Dilemma game).129
More specifically, Fearon models international cooperation as a two-stage game in which
states first agree on the terms of cooperation, and then establish any monitoring and
sanctioning provisions necessary for enforcement. Linking these two stages into a single
game provides useful insights into the significant challenges of successful international
cooperation.
For example, a long “shadow of the future” can lessen problems of
enforcement, by reassuring the players that the game is an iterated one and that
compliance will be rewarded and noncompliance punished over the long haul. By the
same token, however, a long shadow of the future can exacerbate distributional conflicts:
If states know that the rules and standards they adopt will bind them and their successors
for many years to come, they will have a greater incentive to bargain hard and to hold out
for their preferred standard, knowing that it can shape the patterns of gains and losses
well into the future.130 In this view, enforceable, hard-law agreements may increase the
shadow of the future and hence make bargaining more difficult, whereas soft law
instruments may make enforcement more problematic but reduce distributive conflicts in
bargaining over the precise terms of cooperation.
Third, the setting of international regulatory standards is particularly prone to
distributive conflicts, and international standard setting can and should be theorized as a
coordination game that often creates incentives for parties to engage in strategic
bargaining.
Some standard-setting negotiations may take the form of a “pure
coordination” game, in which the various participants are entirely indifferent among the
possible standards to be adopted. Indeed, the constructivist or “world society” literature
depicts international standard setting as an essentially technocratic and deliberative
process in which calculations of interest and power recede into the background.131
129
Fearon, supra note, at 270.
Id. at 270-271.
131
Loya & Boli, supra note.
130
45
However, as Walter Mattli and Tim Büthe have argued convincingly, almost any
potential international standard is likely to have varying distributive implications for
states and firms, and so we can expect actors to attempt to “export” their domestic
standards to the international level, minimizing their adaptation costs, while their trading
partners and competitors are forced to adapt and adjust to a new and different standard.132
Negotiating environmental, health and safety standards where they have significant trade
implications, for example, can be particularly difficult because of the distributional
stakes.133
C. The Challenge of Fragmented Regime Conflicts
Thus far, we have argued that international cooperation and international lawmaking, both hard and soft, are likely to be characterized by distributive conflict, the
outcome of which is likely to be decided in large part by powerful states.
This
distributive conflict, we now argue, may take a distinctive form in issue-areas that are
characterized by a proliferation of hard- and soft-law rules and regimes.
Early
formulations of regime theory largely ignored the problem of multiple, overlapping
regimes: indeed, the classic definition of regimes, offered by Krasner, identifies regimes
as “principals, norms, rules and decision-making procedures around which actor
expectations converge in a given issue-area.”134 Yet an increasing number of real-world
problems do not fall neatly within the jurisdiction of a single regime, but rather lie at the
intersection of multiple regimes. These overlapping regimes result in a regime complex,
which Kal Raustiala and David Victor have defined as: “an array of partially overlapping
and nonhierarchical institutions governing a particular issue-area.” As they state,
132
Mattli & Büthe, Setting International Standards, supra note, at 10-11.
Thomas Bernauer and Thomas Sattler point to two factors in particular: (1) the potential all-or-nothing
character of the trade barrier in question which cannot be reduced as part of a compromise (as can a tariff
or subsidy); and (2) the fact that the environmental, health or safety regulation may reflect broader public
support so that a narrow interest group cannot be easily bought off through some sort of side payment.
Thomas Bernauer & Thomas Sattler, Dispute-Escalation in the WTO: Are Conflicts over Environment,
Health and Safety Regulation Riskier? 8-9 (Center for Comparative and International Studies Working
Paper No. 21, 2006).
134
Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in
INTERNATIONAL REGIMES 1, 1 (Stephen D. Krasner ed., 1983) (emphasis added).
133
46
Regime complexes are marked by the existence of several legal agreements that
are created and maintained in distinct fora with participation of different sets of
actors. The rules in these elemental regimes functionally overlap, yet there is no
agreed upon hierarchy for resolving conflicts between rules.
Disaggregated
decision making in the international legal system means that agreements reached
in one forum do not automatically extend to, or clearly trump, agreements
developed in other forums.135
Decision-making in these regime complexes is characterized by several distinctive
features, of which we emphasize three in terms of their implications for hard and soft law
interaction.
First, negotiations in a given regime will not begin with a blank slate but will
typically demonstrate “path dependence,” taking into account developments in related
international regimes, and, in particular, as we will see,, the WTO-trade regime. Second,
individual states, responding to domestic political contexts and seeking to advance their
interests, will engage in “forum shopping,” selecting particular regimes that are most
likely to support their preferred outcomes. More specifically, states will select regimes
based on characteristics such as their membership (e.g., bilateral, restricted or universal),
voting rules (e.g. one-state-one-vote vs. weighted voting, and consensus vs. majority
voting), institutional characteristics (e.g., presence or absence of dispute-settlement
procedures), substantive focus (e.g. trade finance, environment or food safety), and
predominant functional representation (e.g. by trade, finance, environment or agricultural
135
Kal Raustiala & David G. Victor, The Regime Complex for Plant Genetic Resources, 58 INT’L ORG. 277,
279 (2004). Raustiala and Victor’s empirical analysis focuses on the issue of plant genetic resources, which
they argue exists at the intersection of intellectual property, environmental protection, agriculture and trade.
For important related work, see Lawrence Helfer, Regime Shifting: The TRIPS Agreement and New
Dynamics of Intellectual Property Lawmaking, 29 YALE J. INT’L L. 1 (2004); and Karen J. Alter & Sophie
Meunier, Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute, 13 J. EUR. PUB.
POL’Y 362 (2006).
47
ministries), each of which might be expected to influence substantive outcomes in more
or less predictable ways.136
Third, the dense array of institutions in a given regime complex will create legal
inconsistencies among them. States will respond to these inconsistencies with efforts
either to demarcate clear boundaries among various regimes, or to assert the primacy or
hierarchy of one regime over the others, in reflection of a state’s substantive preferences.
States will engage in “strategic inconsistency,” attempting through one regime to create
conflict or inconsistency in another in the hopes of shifting the understanding or actual
adaptation of the rules in that other regime in a particular direction. Powerful states are
likely to be particularly adept at such forum shopping.137
The political science analysis of overlapping regimes is complemented by a
growing legal literature about the “pluralism” and “fragmentation” of international
law.138 In 2000, for example, the International Law Commission (ILC) included the topic
“Risks ensuing from the fragmentation of international law” into its work program, and in
2002 it created a Study Group to make recommendations concerning the topic, renamed
“Fragmentation of international law: difficulties arising from the diversification and
expansion of international law.”139 For many international lawyers, the result of such
fragmentation is legal uncertainty and potential conflict between international legal
regimes.140 As the 2006 ILC report states:
136
For an excellent discussion of forum-shopping in international relations, see Joseph Jupille & Duncan
Snidal, The Choice of International Institutions: Cooperation, Alternatives and Strategies (2006)
(unpublished paper, available at http://sobek.colorado.edu/~jupille/research/20060707-Jupille-Snidal.pdf).
137
Eyal Benvenisti & George W. Downs, The Empire’s New Clothes: Political Economy and the
Fragmentation of International Law, 60 STAN. L. REV. 595 (2007); DREZNER, supra note.
138
See, e.g., International Law Commission (Koskenniemi) 2006; and Paul Berman, Global Legal
Pluralism, 80 S. CAL. L. REV. 1155 (2007).
139
International Law Commission 2006.
140
See, e.g., M. DELMAS-MARTY, TROIS DÉFIS POUR UN DROIT MONDIAL 104 (1998); Pierre-Marie Dupuy,
The Danger of Fragmentation or Unification of the International Legal System and the International Court
of Justice, 31 N.Y.U. J. INT’L L. & POLITICS 791 (1999); Matt Koskenniemi & Päivi Leinmo,
Fragmentation of International Law. Postmodern Anxieties?, 15 LEIDEN J. INT’L L. 553 (2002); and Simon
Roberts, After Government: On Representing Law without the State, 68 MODERN L. REV. 1 (2004). On the
WTO and public international law, see Gabrielle Marceau, Conflicts of Norms and Conflicts of
Jurisdictions: The Relationship between the WTO Agreement and MEAs and Other Treaties, 35 J. WORLD
TRADE 1081 (2001); and Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can
We Go?, 95 AM. J. INT’L L. 535 (2003).
48
[W]hat once appeared to be governed by “general international law” has become
the field of operation for such specialist systems as “trade law,” “human rights
law,” “environmental law,” “law of the sea,” “European law”… each possessing
their own principles and institutions. The problem, as lawyers have seen it, is that
such specialized law-making and institution-building tends to take place with
relative ignorance of legislative and institutional activities in the adjoining fields
and of the general principles and practices of international law. The result is
conflicts between rules or rule-systems, deviating institutional practices and,
possibly, the loss of an overall perspective on the law.141
Scholars disagree regarding the causes of such fragmentation and whether
fragmentation is positive or negative for international law, but they largely concur on its
development.142 Many legal scholars view this development as a manifestation of the rise
of a global legal pluralism, which refers to “the presence in a social field of more than
one legal order.”143 As a theory or analytic framework, legal pluralism differs from much
of regime theory in that it challenges monist conceptions of the state and of state
interests, and rather emphasizes the interaction between distinct normative orders — state
and non-state — while deemphasizing the role of formal texts. In this sense, legal
pluralism has a “radically heterogeneous” conception of law and social order, taking a
post-modernist, constructivist orientation that focuses on social diversity and informality
more than on formal rules and hierarchic authority.144
Although legal pluralism and theories of regime complexes have quite different
starting points, in particular regarding their conceptions of the role of states, they both
141
International Law Commission (ILC) 2006: 9.
Compare, on the one hand, Jonathan I. Charney, The Implications of Expanding International Dispute
Settlement Systems: The 1982 Convention on the Law of the Sea, 90 AM. J. INT’L L. 69 (1996) and
Koskenniemi and Leinmo, supra note (both contending that a positive development), and on the other,
Benvenisti & Downs, supra note, and Dupuy, supra note (contending that problematic).
143
John Griffiths, What is Legal Pluralism?, 24 J. LEGAL PLURALISM & UNOFFICIAL L. 1 (1986); and Paul
Bermann, Global Legal Pluralism, 80 Southern California Review, 1155, 2007
144
See Roderick A. MacDonald, Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism, 15
ARIZ. J. INT’L & COMP. L. 69, 76, 80 (1998); and Andreas Fisher-Lescano & Gunter Teubner, Regime
Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 MICH. J. INT’L L. 999,
1004-07 (2004). For an excellent application in the area of international business law, see Levit, supra
note.
142
49
raise the question of how legal regimes interact and potentially constrain one another
where there is no central authority. As Roderick Macdonald writes from a legal pluralist
perspective, “[d]ifferent legal regimes are in constant interaction, mutually influencing
the emergence of each other’s rules, processes and institutions.”145 These regimes are not
“self-contained,”146 in a way that some positivist legal commentators fear, but rather
exercise normative pressure on each other, as we will demonstrate below. Lines of
communication between regimes exist, but, crucially, there is no hierarchy imposing a
particular discipline. We are interested in the interaction of “harder” and “softer” forms
of international law within a regime complex, which calls into question much of the
previous theorizing about them.
This phenomenon of regime complexes, finally, is closely related to the problem
of distribution, insofar as distributive conflict provides states with incentives to forumshop among different regimes within a regime complex, or to create new regimes
deliberately to support their own positions and undermine those of the other side. Indeed,
we shall argue below that it is precisely the effect of distributive conflicts among states,
and in particular among powerful states, coupled with the coexistence of hard and soft
law regimes within a regime complex, which is most likely to undermine the smooth and
complementary interaction of hard and soft law depicted in so much of the literature.
While distributive conflict creates incentives for actors to use hard and soft law as
antagonists, the existence of fragmented regime complexes facilitates their ability to do
so.
D. The Challenge of Implementation
Finally, before returning to our discussion of hard and soft law approaches, we
note that the effectiveness of both hard and soft law regimes is crucially affected by the
generic problems that any state may encounter in implementing international legal
agreements. The central problem, we contend, arises from the differences in the actors
and interests who negotiate international agreements, on the one hand, and those who are
145
146
Macdonald, supra note, at 77.
Bruno Simma, Self-Contained Regimes, 16 NETH. Y.B. INT’L L. 111 (1985).
50
called upon to implement them, on the other hand. The challenge of implementation can
provide greater leverage to less powerful actors, such as developing countries, than is
frequently recognized in the international relations literature.
By integrating in our
analysis the relation of international law and domestic implementation, we provide a
richer understanding of international hard and soft law interaction.
The relationship between these two sets of actors has been theorized in
international relations by Robert Putnam in his well-known “two-level games” model.147
In Putnam’s model, all international negotiations take place simultaneously at two levels:
at the international level (Level 1), chief negotiators (also known as statesmen, chiefs-ofgovernment, or COGs) bargain with their foreign counterparts in an effort to reach
mutually beneficial agreements; while at the domestic level (Level 2), the same chief
negotiator engages in bargaining with her domestic constituencies, who must ultimately
ratify the contents of any agreement struck at Level 1.148
Putnam’s article provided a critical contribution of linking the domestic and
international levels in the international relations literature. What Putnam’s article did not
fully address, however, is the gap between formal implementation and actual
implementation, the domain of socio-legal scholars. Implementation can be viewed, in
practice, as a two-stage process, that of formal domestic ratification or enactment (the
primary focus of two-level game theorists, as well as positivist legal scholars) and that of
actual implementation, the law-in-action, the bread and butter of socio-legal theorists.
Here we turn to the key insights from the work of Terry Halliday and Bruce Carruthers
who have shown how powerful actors may prevail in international negotiations and may
also prevail in the domestic ratification process, but other players who may be quite weak
(or unrepresented) in international negotiating fora may be much more powerful at the
stage of actual implementation. As Carruthers and Halliday write,
147
Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT’L ORG.
427 (1988); DOUBLE-EDGED DIPLOMACY: INTERNATIONAL BARGAINING AND DOMESTIC POLITICS (Peter B.
Evans et al. eds., 1993).
148
Id. See also Andrew Moravcsik, Integrating International and Domestic Politics: A Theoretical
Introduction, in DOUBLE-EDGED DIPLOMACY 23 (Peter B. Evans et al. eds., 1993).
51
“[t]he power of the local manifests itself through the distinction between a
politics of enactment and a politics of implementation. While the politics
of the former favor powerful international actors, the politics of the latter
favor nation-states.
And since implementation in a global context is
always a two-step move—from global norms to national enactments, and
from national enactment to local implementation—there are two points at
which national actors, however weak they seem, can open up a gap
between the local and the global… We conclude that weak nations are
stronger than they may appear and stronger than they may suppose.”149
Carruthers and Halliday demonstrate how a key explanation for the gap between
international law- and norm-making and domestic law-making is “actor mismatch.”
Those actors who wield power in domestic implementation of international agreements
are often not present at the international negotiation stage. However, if their interests are
not taken into account, then the resulting agreement will likely not be implemented
effectively, leading to recursive cycles of international law- and norm-making in response
to the failure of domestic implementation in practice.
This problem of implementation – or rather of non-implementation of agreements
by actors excluded from the negotiation process – afflicts not only soft law
understandings but also hard law agreements including international treaties and WTO
rulings. For this reason, we suggest, the purported advantages of hard law over soft law
from legal positivist and rationalist perspectives– including more effective compliance
and enforcement procedures – may be less evident in practice than in theory. In fact,
socio-legal scholarship calls into question the very concept of “binding” hard law, once
one considers implementation as part of the law-making process.
As we will show in Part IV, the challenge of implementation can sometimes
trigger the use of hard and soft law as complements and, at other times, as antagonists.
On the one hand, states may have no choice but to use hard and soft law instruments
149
Terence C. Halliday & Bruce G. Carruthers, Law’s Global Markets: International Organizations and
Bankruptcy Law After the Asian Financial Crisis 553 (forthcoming 2009) (manuscript on file).
52
recursively over time as complements to attempt to overcome resistance to effective
regulatory policy implementation.
On the other hand, the distinct politics of
implementation can catalyze greater awareness of the implications of existing
international law, triggering efforts by state and non-state actors to adopt new
international hard and soft law instruments as antagonists to counter existing ones.
III. Hard and Soft Law Interaction as Antagonists:
A Case Study of Genetically Modified Foods and Crops
Having discussed the significance of distributive conflict and regime complexes
for international cooperation in general, we are now ready to return to the issue of how
hard and soft law interact in the international realm. Given the traditional focus in the
international relations field on states pursuing their self interests in an anarchic (or
institutionally decentralized) world, it is surprising that the literature on hard and soft law
has so far almost exclusively focused on how they serve as complements leading toward
greater cooperation. Important exceptions on which this Article builds are the work of
Raustiala and Victor concerning regime complexes,150 and the analysis of Laurence
Helfer of forum-shifting strategies in international intellectual property law-making.151
This work, however, does not assess the background roles of asymmetric power,
distributive conflict and the politics of implementation, nor does it systematically address
the interaction of hard and soft law and the effects of hard- and soft-law-oriented regimes
on each other.
Building on this work, we contend that careful scrutiny of the interaction of hard
and soft law instruments within a fragmented international law system demonstrates that
they are not necessarily mutually supportive, but also can counteract and undermine each
other under certain conditions.152 More precisely, individual states (or other actors)153
150
See Raustiala & Victor, Plant Genetic Resources, supra note, and the discussion in the first section of
this paper.
151
See, e.g., Helfer, Regime Shifting, supra note; and Jupille & Snidal, supra note.
152
Some international law positivists have earlier expressed concerns that soft law instruments may
undermine the pursuit of a more effective international law system, but they do not address the mutual
interaction of hard and soft law. See, e.g., Weil, supra note, … and Klabbers, Undesirability, supra note ….
53
may deliberately use soft-law instruments to undermine hard-law rules to which they
object, or vice-versa, creating an antagonistic relationship between these legal
instruments. The scope conditions for such behavior, we argue, are determined by the
two factors discussed in the previous section, namely distributive conflict and regime
complexes. Where distributive conflict is low, we have argued, states (or other actors)
are likely to utilize hard- and soft-law instruments selectively, adopting each type of
instrument for its relative strengths, and utilizing those instruments in a complementary
fashion, i.e. with soft law provisions either elaborating existing hard law or leading the
way to new hard law in an evolutionary process. In situations of intense distributive
conflict, however, the content of international norms and rules are fundamentally
contested by states (or other actors), which therefore have an incentive to use soft law to
undermine hard law provisions to which they object, and vice-versa. Put differently,
distributive conflict provides an incentive for states and other actors to contest,
undermine, and possibly replace legal provisions – hard and soft – to which they object.
Within a single international regime, states (and other actors) are likely to enjoy
limited opportunities to contest and undermine existing legal provisions, particularly if
the new provisions are enacted by a stable membership under stable institutional rules. In
a fragmented regime complex, however, the prospects for antagonistic interaction of hard
and soft law increase dramatically. Even in the absence of sharp distributive conflict,
different regimes are likely to be characterized by different memberships, decision rules,
and substantive foci, creating tensions and inconsistencies among both hard and soft
international norms and rules.
These problems of coordination, however, will be
magnified substantially when states (and other actors) engage in conflict over the content
of international rules which haved significant distributive implications. In such instances,
we may expect states (and other actors) to engage in the full range of forum-shopping
strategies discussed in the literature on regime complexes and international law
fragmentation, using hard or soft law provisions in favored regimes to counter or
undermine legal developments in neighboring regimes. Put differently, if distributive
153
In this section, we often focus on states to clarify our analysis. However, as discussed earlier, non-state
actors can enroll states to act on their behalf or attempt to create their own private law regimes. There also
may be differences within state bureaucracies leading to overlapping hard and soft law in different
functional regimes.
54
conflicts provide states (and other actors) with an incentive to use hard and soft law
instruments strategically, the existence of international regime complexes increases their
opportunities to do so.
------------------------------------Insert Table 2 about here
------------------------------------Our argument is summarized in Table 2, which illustrates our expectations about
the interaction of hard and soft law under different combinations of distributive conflict
and regime complexes. Where distributive conflict is low and regimes can be easily
isolated, as in the upper left-hand cell, states (and other actors) have little incentive to
undermine existing law, and hard and soft law are likely to interact and evolve in
complementary ways, reflecting the views in the existing literature. In the lower lefthand cell, we imagine a world in which distributive conflict is again low, but regime
complexes coexist with no hierarchical structure, as when an issue-area comprises
multiple functional domains. Here, we would not expect states (and other actors) to
contest or undermine existing legal provisions, but we would anticipate some
coordination problems among regimes with different memberships, decision rules,
substantive foci, and predominant functional representation (as by different state
ministries).154
Compare these two outcomes to those in the right-hand column of Table 2, where
distributive conflict is high. Where states (or other actors) engage in distributive conflict
within a single, isolated regime, as in the upper-right cell, states (or other actors) will
154
One means to address these coordination challenges is to have members of the secretariats of different
international organizations sit as observers to each other’s meetings. Many international organizations sit as
observers to WTO Council and committee meetings and members of the WTO secretariat sit as observers
at meetings organized by other international bodies. See e.g. WTO, International Intergovernmental
Organizations: Requests for Observer Status in the General Council, WT/GC/W/51/Rev.10 (Apr. 7, 2006)
(listing IGOs granted observer status in the General Council); and WTO, Comm. on Sanitary and
Phytosanitary Measures, International Intergovernmental Organizations: Requests for Observer Status in
the Committee on Sanitary and Phytosanitary Measures, WTO Doc. G/SPS/W/78/Rev.3 (July 3, 2007)
(listing IGOs granted observer status in the Committee on Sanitary and Phytosanitary Measures). Similar
documents exist for the other WTO councils and committees. Confirmed by Shaffer in interviews with
secretariat members of the Codex, the IPPC (International Plant Protection Commission), and the WTO
SPS Committee, in Rome and Geneva, April and June 2007 respectively.
55
have an incentive to undermine existing legal provisions, but their opportunities for doing
so will be limited, in particular because most international organizations operate by
consensus decision-making so that any state benefiting from existing law could block
adoption of countervailing legal instruments.155 In fact, however, we would expect this
scenario to be less frequent, for the simple reason that distributive conflict among states
(or other actors) provides a strong incentive for those that are dissatisfied with a given
regime to press for the creation or development of new regimes to compete with or
undermine existing regimes, particularly insofar as the existing regime is resistant to
change. Put differently, the choice to create new regimes is, at least in part, endogenous
to the presence of distributive conflict, which would tend to push outcomes from the
upper right-hand cell to the lower right-hand cell, where distributive conflicts are present
and multiple regimes overlap in a single issue-area. In such cases, we argue, states (and
other actors) enjoy both an incentive and an opportunity to act strategically, by forum
shopping, favoring some regimes over others, and using hard- and soft-law instruments to
advocate their preferred norms and rules and undermine those to which they are opposed.
In such settings, we can imagine multiple combinations of overlapping and
competing hard- and soft- law-oriented regimes asserting jurisdiction over a given issue.
Regardless of the specific combinations of hard and soft law provisions (which we
address in Part IV), our central point here is that, in the presence of distributive conflict
and fragmented regime complexes, the interaction of hard- and soft- law-oriented regimes
is likely to be not complementary but antagonistic, with the strengths of each regime
being weakened through such interaction.
In such a setting, we contend, soft law
provisions are likely to be “hardened,” losing many of the purported advantages of soft
law such as experimentation and flexibility as a result of their link to hard law regimes.
Hard law provisions, by contrast, may be “softened,” as states, international courts and
tribunals are increasingly forced to weigh the black-letter provisions of one regime
against the competing normative provisions of neighboring regimes.
This scenario,
moreover, is more than simply a theoretical possibility: If distributive conflict over the
155
However, where there are different bodies operating within a single organization, it is possible for hard
and soft law to act as antagonists. For example, UN General Assembly resolutions could be purposefully
adopted to counter existing hard law, whether the hard law is created by the UN Security Council, the
International Court of Justice or another public international law tribunal.
56
terms of cooperation is ubiquitous, as we have argued above, and if a given issue is
subject to multiple regimes in the ever-thickening web of international norms, rules, and
institutions, then we may expect hard and soft law to interact antagonistically across a
broad range of issues in international politics.
Assessing the politics of implementation of international hard and soft law
provides us with a fuller understanding of what lies behind international hard and soft law
interaction. Domestic resistance to the implementation of international hard or soft law is
emblematic of the law’s distributive implications. Such domestic resistance can give rise
to new international hard and soft law acting either as complements or antagonists. On
the one hand, the politics of implementation can mobilize domestic actors who were
previously unaware of the negotations at the international level. They can pressure their
governments, and organize transnationally independently of them, to work toward new
international hard or soft law-instruments as counters to existing ones. At the same time,
other states (and in particular powerful ones, possibly working with non-state actors) can
push for the adopton of new international hard- and soft- law instruments as complements
to existing ones to further such implementation. These processes work in a dynamic and
recursive manner, with national and international law and politics responding to each
other.
Case Study of Genetically Modified Foods and Crops. In the rest of this section,
we illustrate our arguments empirically through the case of agricultural biotechnology, an
area of international regulation that has been subject to both distributional conflict and a
well-developed regime complex. We then move in Part IV to articulate five hypotheses
regarding the interaction of hard and soft law, and examine a range of additional
empirical cases in the economic and security realms as further illustrations.
As we have demonstrated at length elsewhere,156 the US and EU have taken
distinct approaches to the regulation of agricultural biotechnology, and have attempted to
export these different approaches to the global level, seeking allies among third parties,
engaging in forum shopping to find particularly hospitable regimes, and producing
156
Pollack and Shaffer, When Cooperation Fails, supra note…
57
awkward compromises within, as well as inconsistencies among, various international
regimes. In the process, hard- and soft- law mechanisms have not interacted in a
complementary and progressive manner, as theorized in the previous section, but rather
served to constrain and undercut each other. More flexible soft law regimes like the
Codex Alimentarius Commission have been hardened by concerns over the implications
of their decisions in the hard law WTO regime, while the hard law WTO Agreement on
Sanitary and Phytosanitary Standards (SPS Agreement) has been softened, being made
more flexible and less predictable as the WTO judicial process has sought means to avoid
deciding the substantive issues in dispute.
Let us explain how this has worked in some detail. The existing WTO regime
favors the US position that any import restrictions of genetically modified (GM) products
must be based on a scientific risk assessment, even if the regulatory restrictions apply
equally to domestically produced and imported products. From the perspective of the
EU, the 1992 Convention on Biodiversity (CBD), one of a series of framework
agreements adopted at the 1992 Conference on Environment and Development at Rio de
Janeiro, Brazil, offered a promising alternative forum for the regulation of GM products.
In particular, it offered a forum within which the EU could press for an international
environmental agreement supporting its precautionary approach to biotech regulation.
Thanks to EU entrepreneurship, countries adopted a new Biosafety Protocol to the CBD
in September 2003, which had been ratified by over 140 parties by early 2008.
The United States attempted to block adoption of the Protocol but was
unsuccessful. The US nonetheless actively participated in the negotiations, including over
the drafting of a provision governing the relationship of the Biosafety Protocol to the
WTO agreements. The US demanded a “savings clause” to preserve WTO rights because
otherwise there would be an argument under international law that conflicting provisions
in a treaty signed last in time prevail over those in a prior treaty (known as lex
posteriori).157 The US obtained such a clause, but it failed to obtain a clear reservation of
157
Sabrina Safrin, Treaties in Collision? The Biosafety Protocol and the World Trade Organization
Agreements, 96 AM. J. INT’L L. 606, 613-14 (2002).
58
its WTO rights.158 Rather, references to other “international agreements” were only made
in the Protocol’s preamble, and these references are in tension with each other. The
preamble provides that “this Protocol shall not be interpreted as implying a change in the
rights and obligations of a Party under any existing international agreements.” The next
phrase, however, states that “the above recital is not intended to subordinate this Protocol
to other international agreements.” As an EU representative stated, the two clauses
effectively “cancel each other out,” leaving the legal relationship between the two
regimes unclear and allowing both sides to claim a partial victory.159 The EU, therefore,
could point to the Biosafety Protocol as evidence of an international consensus involving
over 140 parties. It could (and did) modify its existing legislation to comply with its
international commitments under the Biosafety Protocol, pointing to these international
obligations in its defense against the United States’ WTO challenge to the EU’s biotech
regime in 2003. From a legal positivist perspective, the Biosafety Protocol is a form of
“hard” law as its rules are binding on the parties to it, but it is “softer” than the WTO
regime along a hard-soft law continuum, since third-party dispute settlement is not
central to its operation.
Overall, the EU has found a more favorable forum in the Biosafety Protocol to
fashion international rules and norms that contain its “fingerprints,” coinciding with and
supporting its regulatory approach to agricultural biotechnology. In particular, the
Protocol has created new rules providing for the application of the precautionary
principle in national decision-making, and the requirement of labeling of Living Modified
Organisms (LMOs) in conformity with an importing country’s requirements. In addition,
discussion continues regarding risk assessment and risk management principles,
including the taking into account of “socio-economic considerations” in regulatory
approvals,160 as well as liability rules. In this way, the Protocol serves as a counterweight
158
For useful overviews of the Biosafety Protocol and its relation to the SPS Agreement, see Safrin, supra
note, and Gilbert Winham, International Regime Conflict in Trade and Environment: The Biosafety
Protocol and the WTO, 2 WORLD TRADE REV. 131 (2003).
159
Inside US Trade 2000.
160
Article 26 of the Protocol provides that parties “may take into account, consistent with their
international obligations, socio-economic considerations arising from the impact of [GMOs] on the
conservation and sustainable use of biological diversity.” The FAO has prepared a preliminary draft
International Code of Conduct on Plant Biotechnology that addresses “possible adverse socio-economic
effects of biotechnology,” but though they have existed for years, they have yet to be adopted. See Lyle
Glowka, Law and Modern Biotechnology: Selected Issues of Relevance to Food and Agriculture 36-37
59
to the WTO SPS Agreement’s narrower focus on science-based justifications for SPS
measures affecting trade.
Both the US and EU also attempted to export their policies to a third organization,
the Codex Alimentarius Commission (Codex), an intergovernmental body established in
1962 by the UN Food and Agriculture Organization (FAO) and the World Health
Organization (WHO) to facilitate international trade in food through the adoption of
international food-safety standards, which consisted of 178 members by early 2008.
Traditionally the US and EU have driven Codex agendas and still do so to a large extent.
Each works to find allies for its own positions.
Codex traditionally represented a form of soft law, since the standards were not
binding and, by definition, there was no need for a dispute settlement system to enforce
them.161 The process for producing Codex standards involves committees of experts
which are established to deliberate over the appropriate standards. A designated Codex
committee elaborates a draft standard or guideline subject to comments by member
governments and interested international organizations. Once the process is completed,
standards are approved by the full Codex Alimentarius Commission which meets once
every two years.
Overall, Codex became a sort of gentleman’s club – or epistemic community – of
food specialists, including strong representation from industry, based on the following
characteristics:
“(1) the position of Codex as relatively isolated from international hard
law and politics, (2) the voluntary nature of Codex activities and output,
(3) agreed-upon norms, which restrained members from both obstructing
the process of elaborating new Codex standards and from letting trade
considerations override all other considerations, and (4) lack of sanctions
in situations where [standards are] not followed.”162
(FAO Legislative Study 78, 2003). In the US view, there is no reason to proceed further with them in view
of the lack of consensus. Shaffer interview with USDA official, Rome, April 29, 2007.
161
Once countries adopted them, however, this “soft” law clearly could have real legal effects.
162
Frode Veggeland & Svein Ole Borgen, Negotiating International Food Standards: The World Trade
Organization’s Impact on the Codex Alimentarius Commission, 18 GOVERNANCE 675, 684 (2004).
60
Those attending Codex meetings were (and the majority remain) food safety experts,
often with technical scientific backgrounds from national administrations and industry.163
Although only governments can vote, the process has often been driven by industry,
which seeks to reduce compliance costs resulting from multiple national regulations.
The situation of the Codex, however, changed considerably with the creation of
the WTO and the adoption of the SPS Agreement in 1995. Under the WTO’s SPS
Agreement, implementation of a Codex standard creates a presumption of compliance
with “harder” WTO law provisions, subject to binding dispute settlement. More
precisely, article 3.1 of the SPS Agreement provides that WTO members shall base their
food safety standards on international standards, guidelines and recommendations
(specifying those of Codex), subject to certain exceptions. Article 3.2 further states that a
member’s conformity with these international standards shall be presumed to comply
with WTO law. These SPS provisions have significantly increased the significance of
Codex standards, providing a significant impetus to harmonization activities, but also
“hardening” Codex decision-making by providing US and EU negotiators with an
incentive both to export and to protect their respective regulatory standards.
The effect of Codex standards became clear in the US-EU trade dispute over the
EU’s ban on beef produced with growth hormones. In 1995, at the first Codex session
following the creation of the WTO, the United States strategically “forced a vote and the
adoption of Codex standards” covering five bovine growth hormones, winning the vote
by a 33-29 margin, with seven abstentions.164 It was hardly a consensus decision, but it
was enough to establish a “voluntary” international Codex standard under the
organization’s voting rules. Shortly afterwards, the U.S. initiated its WTO complaint
against the EU, contending that the EU’s ban was not “based” on an international
(Codex) standard as required by the SPS Agreement.
Since then, the United States and European countries have placed increasing
importance on the negotiation of new regulatory principles and standards within Codex,
163
See, e.g., Erik Millstone & Patrick van Zwanenberg, The Evolution of Food Safety Policy-making
Institutions in the UK, EU and Codex Alimentarius, 36 SOC. POL. & ADMIN. 593 (2002). Put another way,
in the words of an FDA official, Codex was a “backwater,” as exciting as “watching the paint dry or the
grass grow.” Shaffer telephone interview Jan. 29, 2008.
164
David G. Victor, The Sanitary and Phytosanitary Agreement of the World Trade Organization: An
Assessment After Five Years, 32 N.Y.U. J. INT’L L. & POLITICS 865, 899 (2004); and Charnovitz 1997:
1786.
61
since these principles and standards may be invoked (and already have been invoked) in
the decisions of WTO panels and of the Appellate Body. As a European Commission
representative before Codex concludes, “In the past, if we disagreed with Codex
standards or Code of Practice, we could ignore it and take our own legislation. Now we
can’t.”165 In response, states began sending more than food experts and food agency
officials to Codex meetings, complementing them with “delegates from the diplomatic
services and ministries of trade, industry, finance, and foreign affairs.” In an empirical
study, Veggeland and Borden note an increase of such representatives to the Codex
Committee on General Principles from 10 in 1992, to 32 in 2000, to 41 in 2001.166
The Codex process has encountered particularly severe difficulties in addressing
issues that implicate risk management policy over transgenic varieties. Three Codex subgroups have addressed them: the Committee on General Principles (regarding the use of
the precautionary principle and “other legitimate factors” besides science in risk
management); the Committee on Labeling (regarding the labeling of GM foods); and the
Committee on Food Import and Export Inspection and Certification Systems (regarding
the issue of traceability). Here, we find arduous negotiations between the US and EU,
each of which put forward distinctive and sharply opposed proposals for international
standards and guidelines on issues that could have a direct bearing on the application of
the SPS Agreement to national regulatory measures, and in particular in the WTO biotech
case that the US initiated in 2003, resulting in deadlock in the soft law Codex regime.167
The results of these negotiations in the purportedly soft law Codex forum have
not produced consensus. Like the paragraphs of the Cartagena Protocol dealing with the
relation between Cartagena and WTO law, much of these Codex texts simply paper over
rather than settle the differences among the parties, potentially delegating clarification of
these issues, if at all, to the WTO dispute settlement system. Rather than hard law and
165
Quoted in Veggeland & Borgen, supra note…, at 683.
Id. at 689.
167
For extended discussions of the GMO issue in Codex, see Pollack and Shaffer, When Cooperation Fails,
supra note… (chapter 4); Sara Poli, Setting Out International Food Standards: Euro-American Conflicts
within the Codex Alimentarius Commission, in RISK REGULATION IN THE EUROPEAN UNION: BETWEEN
ENLARGEMENT AND INTERNATIONALIZATION 12, 134 (Giandomenico Majone ed., 2003); and Sara Poli,
The European Community and the Adoption of International Food Standards within the Codex
Alimentarius Commission, 10 EUR. J. INT’L L. 613, 619-20 (2004); Veggeland & Borgen, supra note, at
698. .
166
62
soft law working in coordination toward genuine “problem-solving,” the hard law of the
WTO has constrained and to some extent “hardened” what was supposed to be a flexible,
“voluntary” process for harmonized rule-making and guidance to facilitate trade in
agricultural products. Strategic bargaining in defense of trade interests has often replaced
technical discussions. As Victor writes, we are often more likely to see “dueling experts,”
reflecting US adversarial legalism, than “independent expert panels” working
collaboratively to “synthesize complex technical information.”168 As Veggeland and
Borgen add, we now see a “replication of WTO coalition[s] and positioning pattern[s] in
the Codex.”169 An organization in which decision-making was formerly based
substantially on a “logic of arguing” or deliberation has been transformed to one more
frequently based on a “logic of consequentiality” or bargaining.
The United States was concerned with the spread of regulation in other countries
restricting the growth and sale of GM products, which was spurred and legitimated by the
Biosafety Protocol. In response, the United States finally brought a WTO complaint
against EU regulatory measures in 2003, which the US hoped would have significant
implications for other countries’ practices. After considerable delay, the WTO disputesettlement panel finally issued its decision in September 2006.170 The underlying conflict
over the conflicting US and EU regulatory approaches, however, arguably affected the
panel’s decision. The impact of the panel’s decision would be felt outside the trade
regime, in both domestic law and politics and in the international regimes regulating
other aspects of agricultural biotechnology. As a result, we contend, the WTO hard law
dispute settlement system adopted a cautious approach in its interpretation and
application of the SPS Agreement, providing less clarity as to members’ SPS
commitments, arguably reducing their credibility.
The linkage of the agricultural
biotechnology issue to other substantive regimes, we argue, helped to “soften” the effect
of WTO hard law, which lost several of the defining characteristics of hard law in
practice. As a result, the SPS Agreement was effectively made less binding in practice in
this case, for reasons that we now explain.
168
Victor, SPS Agreement, supra note, at 933.
Veggeland & Borgen, supra note, at 698.
170
The analysis of the WTO panel decision in this section is developed in Gregory Shaffer, “A Structural
Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Center of the GMO Case,” __
41:1 NYU J. of International Law and Politics 1 (2009).
169
63
Even though the panel’s decision weighed in at over one thousand pages of text,
the panel expressly avoided examining many crucial issues, most particularly the
questions “whether biotech products in general are safe or not” and “whether the biotech
products at issue in this dispute are ‘like’ their conventional counterparts.” The panel did
find in favor of the United States, but largely on procedural and not substantive grounds,
with less hard law substantive bite. As a result, the substantive outcome and application
of SPS rules remain unclear. As regards measures adopted at the EU level, the panel only
found that the EU had engaged in “undue delay” in its approval process. The panel found
that because of this delay, the EU had never taken an actual “SPS measure.” On these
grounds, the panel did not examine the EU’s actions under the SPS Agreement’s
substantive provisions. It thus avoided determining whether the EU had violated its
obligation to base a decision on a risk assessment, whether any assessments showed
greater risks of GM varieties than for conventional plant varieties, whether the EU was
consistent in its application of food safety regulations, or whether the EU could adopt
regulations that are less-trade restrictive while accomplishing its safety objectives.
Regarding safeguards enacted by EU member states, in contrast, the panel found that all
of them were “SPS measures” that violated the EU’s substantive obligations under article
5.1 of the SPS Agreement because they were “not based on a risk assessment.”
However, the panel only reached this conclusion by looking to risk assessments already
conducted at the EU level, finding that the member-state bans were inconsistent with the
EU’s internal risk assessment findings.
Even though the WTO biotech panel found that the Biosafety Protocol’s
provisions did not apply because the United States is not a party to the Protocol, panelists
can implicitly take the Protocol into account. They can do so through their appreciation
of the political stakes of alternative interpretations of WTO rules (from a rationalist
perspective), and through the Protocol’s impact on the framing and broader social
understanding of the issues (from a constructivist one). The existence of the Protocol can
affect the interpretation of WTO legal provisions and the appreciation of the underlying
facts of the case to which WTO law is applied. Moreover, it is simply not in the interest
of the WTO as an organization to ignore the content of an international environmental
agreement, especially one having over 140 parties.
In the context of agricultural
64
biotechnology regulation, the CBD’s Biosafety Protocol has created normative pressure
for a WTO panel not to be too demanding on the risk assessment requirement.
WTO judges, both panelists and the members of the Appellate Body, have some
independent agency. They are not only interpreters and appliers of WTO legal provisions.
The pattern of their jurisprudence suggests that they also assume a mediating role. The
WTO Appellate Body and judicial panels at times have an incentive to write opinions that
are slightly ambiguous, leading to different interpretations as to how they can be
implemented. In this way, they can shape their decisions, especially in hard cases, to
facilitate amicable settlement, and thereby uphold the WTO legal system from normative
challenge.
In doing so, however, they render the WTO’s hard law text less clear, and thus
less binding in practice. For example, through finding that neither the EU general nor
product-specific moratoria were “SPS measures,” the panel left a WTO decision over the
crucial substantive issue of whether EU-level decision-making was based on a scientific
risk assessment for another day. As regards the member state safeguard measures, the
panel found that they were inconsistent with the EU’s substantive WTO commitments to
base SPS measures on a risk assessment, but did so by relying on risk assessments
conducted by the EU itself. The panel even indicated a means for the EU to comply with
SPS requirements, including for member state safeguards, in a manner that would
enhance EU discretion.171 The panel decision was not unique to the GMO case. As we
have discussed elsewhere, even before the panel’s GMO decision, the jurisprudence of
the Appellate Body indicated a willingness to provide significant discretion to domestic
regulators regarding SPS measures.172
Under the panel’s reasoning, only once the EU actually makes a decision which
results in an “SPS measure” regarding a GM variety may a complainant bring a
substantive claim. In such case, the complainant would have to restart the process from
171
The panel stated that, “if there are factors which affect scientists’ level of confidence in a risk
assessment they have carried out, a Member may in principle take this into account.” It declared that “there
may conceivably be cases where a Member which follows a precautionary approach, and which confronts a
risk assessment that identifies uncertainties or constraints, would be justified” in adopting a stricter SPS
measure than another member responding to the same risk assessment. The panel repeated this same
analysis verbatim in assessing whether a member state safeguard could be found to meet the requirements
under 5.7 for provisional measures. See Panel Report, at ¶¶ 7.3065 & 7.3244-7.3245.
172
Pollack and Shaffer, When Cooperation Fails, supra note… (chapter 4).
65
scratch. A panel would have to be formed and experts consulted. The actual delay in the
panel making a decision on the substance of EU decision-making will thus be much
longer than the three and half years that the case formally took (not to count subsequent
procedures regarding the EU’s implementation of the ruling), if indeed a new claim is
ever filed. The panel thereby effectively parried deciding on the substance of EU
decision-making. The panel’s delay can be viewed in socio-legal terms. The panel was
not anxious to make a substantive decision on EU procedures regarding the politically
controversial issue of GMOs, resulting in a softening of the binding nature of the WTO
commitments in question.
In sum, the intense politicization of the issue, and the entrenchment of two
sharply divergent regulatory systems governing the world’s two largest economies meant
that the various multilateral negotiations on agricultural biotechnology resembled a Battle
of the Sexes game, in which each side sought common international standards on its own
terms. These various regimes have interacted, but the result has been some “hardening”
of the soft law regimes like Codex, and to some “softening” (and more flexibility and less
predictability) of the hard law WTO dispute-settlement system. The Codex has lost some
of its traditional advantages as a soft law regime, growing more contentious, more
difficult, and less deliberative over time because states are concerned about how its
decisions can be used in the hard law WTO dispute-settlement system. By contrast, the
quintessential hard law regime of the WTO dispute settlement system has been softened
somewhat, as panelists and Appellate Body members need to take into account not only
political pressures from the member states, but also the growing overlaps, tensions, and
conflicts between the WTO legal order and the provisions – both hard and soft – of
neighboring international regimes.
IV. Five Hypotheses as to the Interaction of Hard and Soft Law Instruments
As we have now shown, although hard and soft law mechanisms can complement
each other, they do not necessarily interact in a complementary, mutually-reinforcing
manner. We advance five hypotheses as to how these tools operate in international
66
governance. In each case, we refer to policy examples. We offer these arguments as
conjectures subject to further testing.
1. Where powerful states agree on a common policy, we are more likely to see
hard and soft law work as complements in an evolutionary manner.
It is now commonplace to argue that where powerful actors such as the United
States and the European Union agree on a particular policy or standard, it is much easier
for them to promote it globally. Richard Steinberg, for example, writes regarding the
Uruguay Round of trade negotiations that, “[f]rom the time the transatlantic powers
agreed to [a common] approach in 1990, they definitively dominated the agenda-setting
process, that is, the formulation and drafting of texts that would be difficult to amend.”173
Daniel Drezner goes further, arguing that, as a general rule, agreement between the US
and the EU is both a necessary and sufficient condition for successful international
regulation.174 We extend these arguments further, and contend that the interaction of
hard and soft law as complements, presented as a general rule in much or all of the
existing literature, in fact operates only under a restrictive set of conditions, namely a
broad policy consensus among the most powerful actors within a given issue-area.
We have seen and can cite to many examples of this process. One side may
initially be the primary entrepreneur behind the international regulatory initiative,
eventually bringing the other side on board. The US has often taken the lead in initiatives
that have resulted in successful international regulatory cooperation, from international
agreements to protect the ozone layer175 to the anti-bribery convention176 to the Uruguay
Round of trade negotiations.177 In both the ozone protection and anti-bribery cases, the
initial instruments were of a soft law nature, and hard law agreements were reached once
EU members were convinced of the benefits of a hard law approach. Yet with the
173
Steinberg, supra note.
Drezner, All Politics is Global, supra note.
175
Vienna Convention for the Protection of the Ozone Layer art. 11, opened for signature Mar. 22, 1985,
T.I.A.S. No. 11,097, 1513 U.N.T.S. 293..
176
Organization for Economic Co-operation and Development, Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions, Dec. 17, 1997, 37 I.L.M. 1,
177
The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge,
U.K.; New York, N.Y.: Cambridge University Press, 1999). Braithwaite and Drahos cite the United States’
successful use of forum-shifting in the global regulation of intellectual property and telecommunications to
the WTO, respectively from WIPO and the ITU, as well as competition policy, away from UNCTAD.
BRAITHWAITE & DRAHOS, GLOBAL BUSINESS REGULATION, supra note, at 566-568.
174
67
increased institutionalization and harmonization of European regulation at the EU level,
the EU may likewise play an increasingly important entrepreneurial role in global
governance, from standard-setting to climate change to financial regulation.178
Generally speaking, the success of international endeavors, from the International
Organization of Securities Commissions (IOSCO), to the Basel Committee for banking
regulation, to the export credit soft law arrangements, depends on the cooperation of the
US and the EU or its members.179 Similarly, private organizations may take the lead in
developing self-regulatory lex mercatoria regimes, but where these regimes become
codified in international hard law, one important reason is that they explicitly or
implicitly enroll the support of powerful states.180 Indeed, we suggest that much of the
existing literature on the complementary interaction of hard and soft law exhibits
selection bias by drawing disproportionately from cases in which the US and EU agree on
the aims and terms of regulation because there are no, or only minimal distributive
conflicts between them.
2. Where powerful states disagree on policy, we are more likely to see hard and
soft law work in opposition to each other. More precisely, powerful states engaged in
distributive conflicts are likely to engage in forum shopping, advancing their interests by
pressing for the adoption of legal provisions, both hard and soft, in forums that are most
favorable to their respective positions. These overlapping hard- and soft- law-oriented
178
Braithwaite and Drahos also cite the EU’s successful “initiative of establishing the international
Conference on Harmonization as an alternative forum to WHO” for the regulation of pharmaceutical drugs.
BRAITHWAITE & DRAHOS, GLOBAL BUSINESS REGULATION, supra note, at 566-568. Elliot Posner makes
this argument regarding financial services. See Elliot Posner,… in…. (eds. Andrews, Pollack, Shaffer &
Wallace, 2005). Cf. Andreas Nolke, Transatlantic Regulatory Cooperation on Accounting Standards: A
Variety of Capitalism Perspective, in SYSTEMIC IMPLICATIONS OF TRANSATLANTIC REGULATORY
COOPERATION AND COMPETITION (Simon Evenett & Robert Stern eds.) (forthcoming 2009) (contending
that the EU has moved to an Anglo-Saxon liberal market model which has made transatlantic convergence
and regulatory cooperation possible).
179
See supra notes … and accompanying text regarding these policy examples.
180
See BRAITHWAITE & DRAHOS on enrollment of states, and the creation of public-private networks, supra
note…, at 482, 488-494. Janet Levit provides an excellent example in her recent study of the hardening of
letter of credit rules. She provides a “bottom-up lawmaking tale that features private bankers, who have
coalesced for decades under the auspices of the International Chamber of Commerce’s Banking
Commission to ‘codify’ letter-of credit practices in the form of the Uniform Customs and Practices (UCP).”
Their private order “rules” were then incorporated into a UNCITRAL international treaty, the Convention
on Independent Guarantees and Stand-by Letters of Credit, as well as the US Uniform Commercial Code
(UCC), revised Article 5, resulting in “mutual reinforcement.” Levit, supra note…. at 101, 117, 135-138.
68
regimes, in turn, may come into conflict, with the result that soft-law-oriented regimes
lose their technocratic and flexible characteristics, and hard-law-oriented regimes
become less clear and determinate.
If agreement among powerful states is a necessary condition for successful
cooperation, then intense distributive conflict among them is likely to inhibit such
cooperation, providing incentives for them to either forum shop among existing
international institutions, or indeed to create new institutions that, as a result of their
memberships, substantive content or decision rules, are more favorable to their
substantive interests. This proliferation of overlapping and incompatible regimes, in turn,
creates the conditions for hard and soft law to interact as antagonists.
Once again, we can illustrate this process by looking at the process of
international economic regulation, in which the United States and European Union
emerge as the dominant powers in international standard-setting. Given the relatively
equal economic power of the US and EU, where the two sides disagree on a policy
position, they are relatively well-positioned to use their market power to offset each
other’s efforts to export their own regulatory practices to the international level. In these
struggles, they look for allies to advance their aims, whether in an existing forum or a
new one. Where agreements are reached, the result will be either instruments containing
general language that does not take a position either way,181 or competing international
hard- and soft- law instruments.
We posit that the tension among international regimes will generally apply in trade
and social policy issues where the US and EU take divergent positions, and that the WTO
will lie at the center of inter-regime conflicts given its broad scope of coverage and its
implications because of its hard-law dispute settlement system.182 We have already
181
For example, competition law is an area where the US and EU often have convergent policies and the
sides have collaborated in a soft law International Competition Network in promoting competition law
globally. However, the US and EU disagree regarding the appropriate policies toward dominant firms,
reflected in their different approaches to Microsoft’s policies. See William Kovacic, Competition Policy in
the European Union and the United States: Convergence or Divergence? (Bates White Fifth Annual
Antitrust Conference, June 2, 2008). As a result, the International Competition Network working group
efforts on single firm dominance have resulted in recommendations that are at a high degree of generality
because of disagreements between the US and Europe on these issues. Email from Professor Spencer
Waller, Loyola University Chicago School of Law, to author (June 8, 2008) (on file with author).
182
See also Claire Kelly, Power, Linkage and Accommodation: The WTO As An International Actor And Its
Influence On Other Actors And Regimes, 24 BERKELEY J. INT’L L. 79 (2006).
69
shown how the US and EU have attempted to export their policy approaches in the area
of agriculture biotechnology to different international regimes.183 We provide a second
example here.
The US and EU have long taken different positions regarding the
regulation of trade in cultural products, and in particular films and other media. This
issue was particularly contentious during the Uruguay Round in which the EU pushed for
an express “cultural exception,” while the US pressed for the liberalization of national
policies.184 Neither side was fully successful. The 1995 WTO General Agreement on
Trade in Services (GATS) provides that countries are not bound to open their markets to
audiovisual services unless they make express commitments.185 Although the US failed
to obtain any EU commitments to open its market to audiovisual services under the
GATS, the US set up a framework for future negotiations that could lead to such
liberalization, and it was able to obtain commitments from some WTO members.186
The EU then turned to other, more favorable fora to advance its interests, first
with a regional, soft-law instrument, and later with a more binding, global agreement –
both of which were devised in large part to obscure and undermine the justiciable hard
law of the WTO. In 2000, EU and other European countries negotiated a Council of
Europe declaration on cultural diversity, a soft-law agreement that echoed EU domestic
law in proclaiming the value of cultural diversity and justifying trade-restrictive practices
183
Although the US formally won the WTO case, it has often appeared that the EU has been winning the
struggle on the ground, since most countries signed the new Biosafety Protocol and have begun to
implement domestic legislation to restrict the import and production of GM products, and to create
stringent labeling requirements. However, the US has actively provided technical assistance around the
world to develop local constituencies for the promotion of agricultural biotech. The US has been somewhat
successful as plantings have rapidly risen in the largest developing countries, and in particular in China,
India, Brazil and Argentina. A number of these countries are members of the Biosafety Protocol. Efforts
under the Protocol to adopt more stringent labeling requirements have run into obstacles in the last years, as
agricultural ministries have realized the potential impact of these requirements on agricultural trade. In the
case of voluntary soft law-making in Codex, the US-EU conflict regarding risk management policies has
given rise to hard bargaining resulting either in no agreement or, where some agreement is reached, in
general compromise language that papers over the US-EU differences. See Pollack and Shaffer, When
Cooperation Fails, supra note… (chapters 4 & 7).
184
Cristoph Beat Graber, The New UNESCO Convention on Cultural Diversity: A Counterbalance to the
WTO?, 9 J. INT’L ECON. L. 553 (2006); see also Tania Voon, UNESO and WTO. A Clash of Cultures?, 55
INT’L & COMP. L.Q. 635 (2006).
185
The GATS commits WTO members to “successive rounds of negotiations… with a view to achieving a
progressively higher level of liberalization.” (Article XIX of GATS).
186
Graber, supra note, at 554.
70
in the interest of maintaing such diversity.187 This European declaration, in turn, helped
to pave the way for the adoption, in 2001, of a global soft-law instrument, the Universal
Declaration on Cultural Diversity adopted under the auspices of the United Nations
Educational, Scientific and Cultural Organization (UNESCO).188 UNESCO then turned
to the drafting of a binding convention, the Convention on the Protection and Promotion
of the Diversity of Cultural Expressions, which 148 countries signed in October 2005.189
Only two countries opposed it, the United States and Israel.
The United States
“vehemently opposed” the convention throughout the negotiations, maintaining that it
was protectionist and inappropriately implicated UNESCO in trade policy.190
The
convention went into effect in March 2007.
Although the convention is formally binding, its core provisions are defensive.
As Christophe Beat Graber writes, “the principal role of the [Convention] will be to act as
a counterpart to the WTO whenever conflicts between trade and culture arise.”191 Article
1(g) of the convention, for example, provides that one of its objectives is “to give
recognition to the distinctive nature of cultural activities, goods and services as vehicles
of identity, values and meaning” — as opposed to having value only in economic terms.
Article 5 of the convention then affirms the sovereign right of the parties “to formulate
and implement their cultural polices and to adopt measures to protect and promote the
diversity of cultural expressions and to strengthen international cooperation to achieve
[such] purposes.” Article 6 provides that each party “may adopt measures aimed at
protecting and promoting the diversity of cultural expressions within its territory,” which
include the provision of “financial assistance” and the adoption of “regulatory measures.”
Article 8 goes further, maintaining that, “Parties may take all appropriate measures to
protect and preserve cultural expressions in situations [where cultural expressions are] in
need of urgent safeguarding.”
187
Council of Europe, Declaration of the Committee of Ministers on Cultural Diversity (adopted by the
Committee of Ministers on 7 December 2000 at the 733rd meeting of the Ministers' Deputies) CDMM
(2000) 44.
188
UNESCO, Universal Declaration on Cultural Diversity, UNESCO Doc. 31C/Res.25 (Nov. 2, 2001)
189
UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions,
October 20, 2005, 45 I.L.M. 269
190
Graber, supra note, at 560, 565.
191
Id.
71
Much of the rest of the convention is of a soft law nature. In contrast to its
recognition of parties’ rights, the convention only creates soft law obligations, such as
the parties’ commitments to further public awareness of cultural diversity’s importance
(article 10), to acknowledge civil society’s role (article 11), and to generally exercise
their “best efforts” to implement the convention through cultural policy measures.192 The
convention provides for dispute settlement, but it too is of a soft law nature, relying on
negotiation, mediation and conciliation.193
The conciliation system, moreover, is non-
binding, and parties may also opt out of it.
The result of this series of cultural diversity agreements is that hard- and soft- law
agreements once again operate as antagonists. Therefore, as in the adoption of the
Cartagena Biosafety Protocol examined in Part II, a key issue in the negotiations was the
relationship of the convention to other international treaties, and particularly the WTO
agreements. The convention provides another example of strategic ambiguity in this
respect. Article 20 of the convention states that, “without subordinating this convention
to any other treaty,” the parties “shall foster mutual supportiveness” with other treaties
and “take into account the relevant provisions” of the convention “when interpreting and
applying … other treaties” and “when entering into other international obligations.” At
the same time, the article provides that “nothing in this Convention shall be interpreted as
modifying rights and obligations of the Parties under any other treaties to which they are
parties.”
Article 20’s focus on the fostering of “mutual supportiveness” among treaty
regimes can be read as an attempt by the EU and its allies to soften WTO rules to
accommodate the convention’s norms. The EU and other parties to the convention can
now refer to an international agreement that expressly proclaims their sovereign rights
under international law to take measures, including trade measures, to protect their
cultural diversity.
As the number of countries ratifying the convention grows, the
convention, together with the 2001 UNESCO Universal Declaration, could be viewed as
emerging customary international law which applies to all nations except those non-
192
193
Id. at 564.
Article 25 of the Convention.
72
signatories who persistently object to it.194 Within the cultural law and policy regime,
hard- and soft- law instruments have acted as complements to place increasing normative
pressure on a neighboring regime.
These agreements, which lie in stark tension with WTO provisions that benefit the
US position, could have an impact on future WTO negotiations and on future WTO cases
involving cultural products, even where they involve a WTO member that is not a party
to it, such as the United States. The UNESCO convention can be used, in particular, to
attempt to constrain WTO jurisprudence so that WTO panels interpret WTO rules in a
manner that treads lightly in this area, with the result that the application of WTO
agreements to cultural products will be softened.
Article XX(f) of the General
Agreement on Tariffs and Trade (GATT) 1994, for example, creates an exception to
GATT obligations where a measure is “imposed for the protection of national treasures of
artistic, historic or archaeological value,” and Article XX(a) does the same for measures
“to protect public morals.” These GATT exceptions had been considered to be of a
limited nature, but the existence of the UNESCO convention could affect their
interpretation. The result is greater uncertainty and less predictability regarding WTO
trade liberalization commitments as regards “cultural” products, and thus a softening of
WTO law.
In sum, in this case, the potential link between the UNESCO cultural regime and
the WTO trade regime, together with the stark distributive differences between the US
and the EU, led to a “hardening” of bargaining over the UNESCO convention to which
the United States was vehemently opposed, and could, in time, produce a “softening” of
WTO legal commitments in this area.
3. Even where powerful states agree on a regulatory approach, smaller states
which are adversely affected can use international hard and soft law strategies to attempt
to thwart powerful states’ aims, again choosing regimes more favorable to their positions
in a fragmented international law system. The result, once again, is hard and soft law
acting as antagonists, which can lead to the hardening of soft-law-oriented regimes and
194
By May 1, 2008, 81 countries had become members of the convention.
73
the softening of hard-law-oriented regimes. However, powerful states have significant
advantages at the international level because of their market power and resources.
Powerful states are not the only actors that can engage in strategies of deliberate
countering of an existing legal instrument through activities in a separate regime which
results in hard- and soft- law instruments acting as antagonists. International law has
distributional implications for developing countries, and intellectual property law is a
prime example.195 These distributional implications create incentives for developing
countries to counter existing international law with new hard- or soft- law instruments.
In their article on regime complexes, Raustiala and Victor show how the US and
EU leveraged market power in trade negotiations under the Uruguay Round to create new
rules under the Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement) which were closely modeled on US and EU law, and which favored
US and EU interests.
Among other matters, the TRIPS Agreement required the
recognition of intellectual property rights in plant varieties.
Developing countries
responded by attempting to reframe intellectual property protection in light of
environmental and development goals under the 1992 Convention on Biodiversity,
leading to a new treaty regarding plant genetic resources in 2002. As Raustiala and
Victor write,
“states at times attempt to force change by explicitly crafting rules in one
elemental regime that are inconsistent with those in another. For example,
developing countries led the establishment of the original FAO
Undertaking [of 1983] in a radical attempt to refocus the agenda toward a
broad and controversial common heritage principle for all PGR [Plant
Genetic Resources]. The CBD’s rules on IP rights are another example —
195
TRIPS Agreement requirements, for example, could result in higher prices for goods, restricted access to
vital resources, and job losses in strong underground economies – without generating offsetting sources of
revenue. Keith E. Maskus, Intellectual Property Rights and Economic Development, 32 CASE W. RES. J.
INT’L L. 471 (2000); KEITH E. MASKUS, INTELLECTUAL PROPERTY RIGHTS IN THE GLOBAL ECONOMY
(2000). Implementing the protection of pharmaceutical patents pits the US pharmaceutical industry against
health activists, government purchasing agencies and generic companies. Implementing the protection of
intellectual property rights in plant varieties under TRIPS, for instance, pits the interests of the US and EU
seed industry against the interests of smallholder farmers. Susan K. Sell, What Role for Humanitarian
Intellectual Property? The Globalization of Intellectual Property Rights, 6 MINN. J. SCI. & TECH. 205
(2004).
74
the CBD purposefully included language that could be construed to make
IP rights subservient to environmental protection and development
objectives, including benefit-sharing, all of which appeared to contravene
the content of TRIPS.”196
Developing countries’ efforts led to the 2002 Treaty on Plant Genetic Resources (PGR),
which partly undercuts TRIPS rules.197
Laurence Helfer has likewise explored how developing countries can “engage in
regime shifting,” adopting “the tools of soft lawmaking.”198 In doing so, they often work
with non-governmental groups who serve as allies to help generate counter norms that are
development-oriented.199 Helfer showed how developing countries have attempted to
counter the creation of hard intellectual property rights under the TRIPS Agreement and
bilateral TRIPS-plus agreements through forum-shifting tactics involving the CBD,
World Intellectual Property Organization (WIPO) and the World Health Organization
(WHO).
They have attempted to do so regarding an array of issues involving
biodiversity, plant genetic resources for food and agriculture, public health, and human
rights. They aim to generate “new principles, norms and rules of intellectual property”
within these institutions which “are more closely aligned with these countries’
interests.”200
For example, the Conference of the Parties to the CBD has created
workshops, established working groups and developed guidelines to address the issues of
indigenous knowledge and the sharing of benefits from the use of genetic resources.201
Concurrent efforts within the FAO gave rise to the 2002 Treaty on Plant Genetic
Resources which recognizes “farmers rights,” “sovereign rights” over plant genetic
resources, and equitable “sharing of the benefits arising from commercialization.”202 This
treaty constitutes hard law along the dimension of obligaton (it is formally binding), but it
196
Raustiala & Victor, Plant Genetic Resources, supra note, at 301-02.
Id.; International Treaty on Plant Genetic Resources for Food and Agriculture, Nov. 4, 2002.
198
Helfer, Regime Shifting, supra note, at 17, 32.
199
Id. at 32, 53-54.
200
Id. at 6.
201
Id. at 32-34.
202
See, e.g., PGR Treaty, at Art. 9.
197
75
is much softer than the TRIPS Agreement in its dispute settlement provisions.203 Once
again, as in the agricultural biotechnology and cultural diversity examples, countries have
engaged in strategic ambiguity in defining the PGR Treaty’s relation to the TRIPS
Agreement in light of the tension between the regimes.204
The relation of intellectual property rights to the pursuit of health policy goals
provides another example of developing country attempts to counter existing
international trade and intellectual property law by reframing issues through the use of
new soft-law instruments adopted in different fora, in this case, health policy and human
rights fora. The United States has responded vociferously in these fora, so that the
processes exhibited less of the soft-law ideal type advantages of deliberation and policy
learning, as opposed to strategic bargaining.205 Developing countries have nonetheless
203
Article 22 of the PGR Treaty provides for a conciliation procedure unless the parties voluntarily accepts
compulsory arbitration or jurisdiction of the International Court of Justice. PGR Treaty, Art. 22.
204
As regards the relation of PGR Treaty to other international agreements, the PGR Treaty’s preamble
provides that the parties “Recognize[e] that this Treaty and other international agreements relevant to this
Treaty should be mutually supportive with a view to sustainable agriculture and food security; Affirm…
that nothing in this Treaty shall be interpreted as implying in any way a change in the rights and obligations
of the Contracting Parties under other international agreements; and Understand that the above recital is not
intended to create a hierarchy between this Treaty and other international agreements.”
205
The United States appears to have reacted particularly vigorously before the WHO, more so than in the
various human rights regimes. Klug writes, “Since then, the United States has continued to use bilateral
agreements to pursue its agenda of promoting TRIPS-plus standards, as well as applying pressure on WHO
staff to stop “engaging in or publishing research or statements that critique the impact of US trade policy on
Public Health. 88” Heinz Klug, Law, Politics and Access to Medicines in Developing Countries, 36
POLITICS & SOC’Y 207, 236 (2008) (quoting Oxfam International, “Patents Versus Patients: Five Years
After the Doha Declaration,” Oxfam Briefing Paper 95, November 14, 2006, at 19). Klug also writes: “It
was in this context that the WHO began questioning the relationship between the new international trade
regime and its own mandate to promote world health. In January 1998, just over a month after the adoption
of the new South African law allowing parallel importation, the Executive Board of the World Health
Assembly (WHA) recommended the adoption of the “Revised Drug Strategy,” calling upon member states
to “ensure that public health interests are paramount in pharmaceutical and health policies,” as well as “to
explore and review their options under relevant international trade agreements, to safeguard access to
essential drugs.”85 In May 1998, when the WHA began discussing the recommendation at its meeting in
Geneva, the proposal came under heated attack from the developed countries including the United States,
EU, and Japan.” 88 Heinz Klug, Law, Politics and Access to Medicines in Developing Countries, 36
POLITICS & SOC’Y 207, 236 (2008) Helfer says “U.S. pressure did, however, result in the deletion of
statements in a World Health Assembly resolution highlighting “the negative impact of new world trade
agreements on . . . the issue of access to and prices of pharmaceuticals in developing countries” and urging
states “to ensure that public health rather than commercial interests have primacy in pharmaceutical and
health policies.”” Laurence R. Helfer, Regime Shifting: The TRIPS Agreement and New Dynamics of
International Intellectual Property Lawmaking, 29 Yale J. Int'l L. 1, 43 (2004) (citations omitted). The
WHO is a functional regime which has adopted important soft law public health policies which are
important for the United States because of the externalities of public health policy in a world in which
diseases do not respect borders. The relevant human rights at stake, in contrast, are “economic” and
“cultural” rights which are more contentious and often more amorphous. The US has not ratified the
International Covenant on Economic, Social and Cultural Rights and has not been active before the United
76
been able to obtain support from many international bodies, such as various international
human rights bodies and the World Health Organization, using international soft law
instruments to promote the prioritization of human rights and health protection vis-a-vis
pharmaceutical patent protection. Helfer points to soft-law developments within the
following human rights bodies that have been antagonistic toward the TRIPS Agreement:
the Commission on Human Rights, its Sub-Commission on the Promotion and Protection
of Human Rights, the UN High Commissioner for Human Rights, the Special
Rapporteurs appointed by the Commission and Sub-Commission, and the Committee on
Economic Social and Cultural Rights.206
These human rights and health policy bodies became involved in the conflicts
over pharmaceutical patent protection following US pressure on specific developing
countries regarding their compliance with the TRIPS Agreement. For example, when US
pharmaceutical companies, supported politically by the US government, challenged a
new South African law allowing parallel importation of pharmaceuticals before the South
African courts, including as regards to South Africa’s commitments under WTO law,
“the Executive Board of the World Health Assembly (WHA) recommended the adoption
of a ‘Revised Drug Strategy,’ calling upon member states to ‘ensure that public health
interests are paramount in pharmaceutical and health policies,’ as well as ‘to explore and
review their options under relevant international trade agreements, to safeguard access to
essential drugs.”’207
The WHO Executive Board adopted the strategy in January 1999,
despite intense pressure exercised by the United States.208 Although the final resolution
Nations Human Rights Council, which replaced the UN Commission on Human Rights in 2006. These
human rights bodies themselves are more fragmented than the world health regime under the WHO, and
some of these human rights organizations are relatively more autnonomous of states, such as the UN High
Commissioner for Human Rights and the Special Rapporteurs.
206
Helfer, Regime Shifting, supra note, at 45-46. For example, the Sub-Commission’s program for
intellectual property and human rights stresses “the primacy of human rights obligations over economic
policies and agreements.” Res. 200/7, U.N. ESCOR Comm’n on Hum. Rts., 52d Sess., Provisional Agenda
Item 4, at 1, U.N. Doc. E/CN.4/Sub.2/2000/L.20 (2000), at para. 3. See also John Odell & Susan Sell,
Reframing the Issue: the WTO coalition on intellectual property and public health, in NEGOTIATING
TRADE: DEVELOPING COUNTRIES IN THE WTO AND NAFTA (John Odell ed., 2006); Amy Kapczynski, The
Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 YALE L.J. 804, 804
(2008) (noting how “law is a key location for framing conflicts”). Cf. Drahos 2007.
207
Heinz Klug, Law, Politics and Access to Medicines, in Developing Countries, Politics and Society
(2008), at…. (citing Fifty-Second World Health Assembly, “Revised Drug Strategy,” WHA52.19,
agenda item 13, adopted at the ninth plenary meeting, A52/VR/9, May 24, 1999).
208
See Helfer, Regime Shifting, supra note --, at 43; Heinz Klug, Law, Politics and Access to Medicines in
Developing Countries, 36 POLITICS & SOC’Y 207, 236 (2008).
77
was less critical of the TRIPS Agreement in its tone than the initial formulations,
following US behind-the-scenes pressure, the strategy was immediately referenced by
South African officials in defense of South Africa’s positions.209 Similarly, following the
US initiation of a WTO complaint against Brazil in respect of provisions in Brazil’s
patent law, fifty-two countries of a fifty-three member United Nations Commission on
Human Rights endorsed Brazil’s AIDS policy, and backed a resolution in 2001 sponsored
by Brazil that called on all states to promote access to AIDS drugs as a human right,
which again the US vociferously opposed.210 This UN resolution was helpful for Brazil
in favorably settling the US claim.211
The struggle over the proper framing of the interaction of social welfare
protection and intellectual property protection is ongoing.
In September 2007, for
example, the United Nations Special Rapporteur on Human Rights issued draft “Human
Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines,”
using a human rights frame.212 As Heinz Klug writes, the guidelines “argue that the
pharmaceutical corporations have a responsibility to promote access to medicines,” and
represent “yet another effort to use normative pressure and standards to tackle the
problem of access” to medicines.213
209
The final resolution requested the WHO to “monitor[ ] and analy[ze] the pharmaceutical and public
health implications of relevant international agreements, including trade agreements.” Id.
210
See UN Rights Body Backs Brazil on AIDS Drugs, NEWS24.COM, Apr. 24, 2001, available at
http://www.news24.com/contentDisplay/level4Article/0,1113,2-1134_1014970.00.html; Access to
Medication in the Context of Pandemics such as HIV/AIDS, C.H.R. Res. 2001/33, U.N. Doc.
E/CN.4/RES/2001/33 (April 20, 2001), available at .
http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES.2001.33.En?Opendocument. Dennis
notes that the provision “sparked substantial controversy among Commission members . . . because it
called into question the impact of” TRIPs. Michael J. Dennis, Current Development, The Fifty-Seventh
Session of the UN Commission on Human Rights, 96 AM. J. INT’L L. 181, 191 (2002).
211
See Gregory Shaffer, Michelle Ratton Sanchez & Barbara Rosenberg, The Trials of Winning at the
WTO: What Lies Behind Brazil’s Success, 41 CORNELL INT’L L.J. (forthcoming 2008), available at
http://search.ssrn.com/sol3/papers.cfm?abstract_id=1137905.
212
Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of
Physical and Mental Health, Draft Human Rights Guidelines for Pharmaceutical Companies in Relation to
Access to Medicines, reprinted in the Report to the General Assembly of the UN Special Rapporteur on the
Right to the Highest Attainable Standard of Health (U.N. doc. A/63/263, Aug. 11, 2008) (prepared by Paul
Hunt).
213
See Heinz Klug, Law, Politics and Access to Medicines, in Developing Countries, Politics and Society
(2008); see also Heinz Klug, Campaigning for Life: Building a New Transnational Solidarity in the Face of
HIV/AIDS and TRIPS, in LAW AND COUNTER-HEGEMONIC GLOBALIZATION: TOWARD A SUBALTERN
COSMOPOLITAN LEGALITY (Boa Santos & Cesar Rodriguez eds., 2005).
78
The pressure from these various soft-law instruments has facilitated the softening
of WTO legal obligations through granting greater flexibility for developing countries to
implement the TRIPS Agreement. The United States first compromised with developing
countries, despite US pharmaceutical company protestation, by agreeing to the 2001
Doha Declaration on the TRIPS Agreement and Public Health, in which WTO members
“affirm that the Agreement can and should be interpreted and implemented in a manner
supportive of WTO Members' right to protect public health and, in particular, to promote
access to medicines for all.”214 The US and other WTO members then agreed to grant
conditional waivers in 2003 to paragraphs (f) and (h) of Article 31 of the TRIPS
Agreement (the “Waiver Decision”).215 A formal amendment to the TRIPS Agreement
based on the substance of the Waiver Decision was submitted to Members in 2005, but it
is still awaiting ratification.216
Beyond the formal waivers of hard law provisions of the TRIPS Agreement in
2003, soft-law counter-instruments are still being used to create normative pressure in
respect of future trade and intellectual property negotiations, as well as on any WTO
dispute settlement panel that might interpret the provisions of the TRIPS Agreement.
The intention is for TRIPS Agreement provisions to become more “flexible,” less
determinate and thus less binding in their effects. Once more, we see an attempt to use
soft law tools to make an existing hard law regime less determinate, undermining its
purported ideal type advantages of legal precision backed by judicial enforcement.
Eyal Benvinisti and George Downs nonetheless question the efficacy of these
strategies of using soft-law-oriented regimes as antagonists to neighboring regimes in a
fragmented international legal order.217 They contend that powerful countries are best
able to make use of fragmented international regimes through forum-shopping strategies
to shape international law over time. They find that fragmented regime complexes
increase the transaction costs for participants, favoring those with greater resources.
They argue that “creating institutions along narrow functionalist lines … limits the
214
World Trade Organization, Ministerial Declaration of 14 November 2001 on the TRIPS Agreement and
Public Health, WT/MIN(01)/DEC/2, 41 I.L.M. 755 (2002)..
215
WTO, Declaration on the TRIPS Agreement and Public Health, Doc. WT/MIN(01)/DEC/2 (Nov. 14,
2001); WTO, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public
Health, IP/C/W/405, 30 August 2003.
216
Amendment of the TRIPS Agreement – Decision of 6 December 2005, WT/L/641.
217
Benvenisti & Downs, supra note; see also DREZNER, supra note…
79
opportunities that weaker states have to build cross-issue coalitions that could potentially
increase their bargaining power and influence.”218 The counter-regimes mentioned by
Helfer, for example, are soft-law regimes compared to the TRIPS Agreement, and weaker
states have adopted tactics that are primarily reactive in these soft law venues. Helfer, in
fact, recognizes that governments
“can attempt to diffuse those pressures [from domestic constituencies and
international advocacy organizations] by taking action in regimes whose
institutional structures or enforcement mechanisms are weak, thereby
appeasing interest groups while avoiding action in other venues where
rulemaking
would
consequences….
have
Indeed,
more
regime
far-reaching
shifting
and
might
less
desirable
actually
serve
industrialized states’ interests by diverting attention and resources from
potentially effective treaty-making efforts in WIPO or the WTO while
simultaneously creating the appearance of sharing developing countries’
concerns.”219
Benvinisti and Downs note, in particular, how “serial bilateralism is being used
with increasing frequency by powerful states to shape the evolution of norms in areas
such as intellectual property protection and drug pricing where they have vital interests at
stake and where their position on issues is far different from those of the vast majority of
states.”220 These bilateral agreements constitute hard law along all three dimensions
defined by Abbot and Snidal.
Benvinisti and Downs find a similar process in the
negotiation of investment protections through bilateral investment treaties.221 The earlier
failure of developing countries to create a “new international economic order” in the
1970s, including through the United Nations Conference on Trade and Development as a
218
Benvenisti & Downs, supra note, at 595.
Helfer, Regime Shifting, supra note, at 56-57.
220
Benvenisti & Downs, supra note, at 611. Similarly, in the area of international accounting rates for
telecommunications, an OECD interviewee explained: “The US wanted to set the agenda by expanding
bilateral agreements until its agenda is a fait accompli.” BRAITHWAITE & DRAHOS, supra note, at 337.
221
Benvenisti & Downs, supra note, at 611-12. See also Andrew Guzman, Why LDCs Sign Treaties That
Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA. J. INT’L L. 639 (1998).
219
80
rival institution to the GATT, suggests that there are severe limits to weaker countries’
use of this option.222
Braithwaite and Drahos come to a similar conclusion, although with greater
ambivalence. On the one hand, they write: “Clearly, very few actors in the context of
global regulation have the capacity to run strategies of forum-shifting.... Forum-shifting
is a strategy that only the powerful and well-resourced can use.”223 On the other hand,
they nonetheless concede that “in some way weaker players are better off in a world
where there are multiple fora capable of dealing with similar agendas.”224 Developing
countries sometimes are successful, at least in using hard- and soft- law instruments as
antagonists to soften existing international hard-law-oriented regimes and thus impede
great power efforts to globalize their regulatory approaches. A major reason for the
leverage that developing countries exercise is the distinct politics of implementation,
which is often overlooked in scholars’ assessments of the making of international law.
We now turn to this key issue.
4. Even where powerful states prevail in negotiations at the international level
vis-à-vis third countries, they will still have difficulty ensuring that the agreement is
implemented in third countries because existing international law may be ambiguous and
because different interests hold power in domestic settings at the implementation stage.
States seeking effective implementation of agreements thus have incentives to develop
further complementary soft- and hard-law instruments to promote the implementation of
existing agreements. In addition, the politics of implementation gives rise to greater
publicity regarding international law’s implications. Actors aiming to frustrate
implementation of existing agreements can mobilize to seek the adoption of new
international hard- or soft- law instruments designed to act as antagonists to existing
ones.
222
For a seminal examination of this period, see Stephen D. Krasner, Structural Conflict: The Third World
Against Global Liberalism (Berkeley: University of California Press, 1985). As Braithwaite and Drahos
write: “The price that UNCTAD paid for this domination by developing states was a loss of legitimacy (in
the eyes of developed states) and ultimately a de facto loss of norm-making power.” BRAITHWAITE &
DRAHOS, supra note, at 566.
223
BRAITHWAITE & DRAHOS, supra note, at 565.
224
Id.
81
Even where multilateral or bilateral negotiations produce policy agreement at the
international level, participating countries must still implement those agreements. Local
actors and institutions, with different interests than those that negotiated the agreement,
can, and often do, undermine its implementation. At the implementation stage, domestic
actors, public and private, are best able to exploit their knowledge of, and role in, local
practice to frustrate the changes negotiated at the international level.225 The result, from
an ex post perspective, is a blurring of the distinction between hard and soft law, as sociolegal scholars have argued.
Such “rear-guard battles” can erode the fruits of
negotiation,226 undermining the effectiveness of even hard-law regimes with binding
dispute settlement. At the implementation stage, that is, international law hits home, both
institutionally in terms of practice and psychologically in terms of public perceptions.
The politics of implementation of an international law instrument can thus catalyze new
international law-making in which the resulting instruments may act either as
complements or antagonists to existing ones, as we now examine.
Terry Halliday and Bruce Carruthers’ superb analysis of the IMF-sponsored
reforms to Indonesia’s bankruptcy regime in the wake of the Asian financial crisis offers
a particularly good example of new international soft law being used as a complement in
response to the politics of implementation. The need for new soft law instruments arose
from an implementation stage battle waged by domestic interests who were neglected
during the international negotiation and the formal domestic enactment processes. In
February 1998, the World Bank, IMF, and other international financial institutions (IFIs)
worked with Indonesia to develop an operational insolvency regime for the country.227
Extremely vulnerable to pressure from the IFIs on account of its financial instability,
Indonesia adopted wide-ranging corporate bankruptcy reforms as a condition to receiving
future IMF funds.228 Diagnosis of the problems and the prescriptions for reform were
driven by the IFIs to the exclusion of local actors integral to the operation of the new
regime – debtor corporations, commercial leaders, and many private banks. Once the
225
Terence C. Halliday & Bruce G. Carruthers, Law’s Global Markets: International Organizations and
Bankruptcy Law After the Asian Financial Crisis 536 (forthcoming 2009).
226
Id. at 538.
227
Terence C. Halliday & Bruce G. Carruthers, The Recursivity of Law: Global Norm Making and National
Lawmaking in the Globalization of Corporate Insolvency Regimes, 112 AM. J. SOCIOLOGY 1135 (2007)
228
Id. at 1156.
82
IFIs prescription were enacted at the domestic level, these parties were thus faced with a
binding regime that they had no hand in designing and with which they did not agree.229
Marginalized in the dialogue with IFIs and in the formal domestic lawmaking
process, these parties fought a battle at the implementation stage such that “for every two
steps forward in formal lawmaking, implementation took at least one step back.”230
Using the tools at their disposal – “great ingenuity, inertia, professional expertise, and
raw financial power” – these actors were able to frustrate the changes envisioned by the
IFIs and agreed to by the Indonesian government.231 Bankruptcy reformers thus turned to
another international institution, the United Nations Commission on International Trade
Law (UNCITRAL), which was viewed as more universal and thus legitimate than the
IFIs.232 UNCITRAL adopted a new Legislative Guide on Insolvency Law in 2004.233
These UNCITRAL rules provided greater choice in terms of bankruptcy law reforms,
which choices can be (and are being) used by national reformers as models.234
The politics of implementation can also spur attempts to develop new hard- and
soft- law instruments as antagonists to existing ones. Implementation battles often raise
publicity over international legal requirements. These domestic implementation struggles
catalyze domestic groups to push for changes at the international law level. These groups
can lobby their governments and can form transnational networks to coordinate pressure
on governments and international organizations to adopt amended or new international
law instruments that counter existing ones.
We have already witnessed, in the US-EU dispute over the approval of genetically
modified foods and crops, a vivid example of how the politics of implementation can
catalyze efforts within a powerful state to press for new hard or soft law to counter
existing international law. Both during the WTO panel proceeding and and following the
panel decision in the WTO EC-Biotech case, the European Commission sought to bring
229
Halliday & Carruthers, Law’s Global Markets, supra note, at 545.
Halliday & Carruthers, Recursivity of Law, supra note, at 1160.
231
Id. at 1161-62.
232
Id.. and bruce carruthers and terrence halliday, negotiating globalization: global scripts and
intermediation in the construction of asian insolvency regimes, 31:3: Law and social inquiry 521, 537
(2006)
233
Halliday & Carruthers, Recursivity of Law, supra note…, at 1186. See U.N. COMM’N ON INT’L TRADE
LAW, LEGISLATIVE GUIDE ON INSOLVENCY LAW, U.N. Sales No. E.05.V.10 (2004).
234
Halliday & Carruthers, Recursivity of Law, supra note.
230
83
the EU into compliance and reduce pressure on the Union by restarting the process for
the regular approval of GM crops found to be safe by the European Food Safety
Authority. In practice, however, the Commission encountered enormous public and
governmental resistance, resulting in long delays before member-state committees and
the Council of Ministers, and the queue of varieties awaiting approval grew. Faced with
such an implementation deficit, the Commission sought to shore up the EU’s legal
position by actively promoting both soft- and hard-law principles and rules, in fora such
as the Codex Alimentarius Commission and the CBD, to act as antagonists to existing
WTO provisions in order to weaken the constraints of WTO law.235
The politics of implementation can likewise spur developing countries and
constituencies within them to seek new international hard or soft law to counter existing
international law.
Implementation of the TRIPS Agreement as regards intellectual
property protection of pharmaceuticals and plant varieties are prime examples.236 As
Braithwaite and Drahos write,
“[m]ass rallies attracted as many as 500,000 people into Indian streets in
1993 after the implications of the TRIPS agreement of the GATT became
clear, but during the many years that this intellectual property agreement
was being negotiated, there was no involvement from the Indian consumer
movement, indeed no serious involvement from any national international
consumer movement. There were simply too few consumer movement
antennae, already busy detecting too many other things.”237
Following implementation struggles in which the United States pressured developing
countries to implement their TRIPS commitments by bringing or threatening to bring
WTO claims, developing countries and activist groups coordinated pressure to give rise
to new international law instruments. As we saw above, they successfully promoted a
235
See section III of this paper, above, and Pollack and Shaffer, When Cooperation Fails, supra note…
(chapter 6).
236
Maskus, IPR and Economic Development, supra note, at 489-94 (noting that short-run economic and
social costs of strengthening intellectual property rights in developing countries makes it difficult to
organize domestic interests in favor of reform).
237
BRAITHWAITE & DRAHOS, supra note, at 489.
84
new FAO Treaty on Plant Genetic Resources and new declarations from the UN Human
Rights Commission and World Health Organization regarding pharmaceutical patents
and public health.238
In short, by viewing national implementation challenges as part of the
international law-making process, we build a better understanding of how international
and transnational hard- and soft- law processes operate, involving hard- and soft- law
instruments interacting as complements and as antagonists. We see that the politics of
implementation can result not just in a one-way internalization of international law
through iterated transnational legal processes in which hard and soft law instruments act
as complements. The distinct politics of implementation can catalyze new international
law-making to counter existing international law, resulting in hard- and soft- law
instruments acting as antagonists.
5. There is a spectrum from which states may choose in using hard and soft law
instruments to counter existing international law.
They will favor instruments with
harder law characteristics where their interests are certain and when they can obtain
sufficient support from third countries. Where their interests are less clear, or where
other states are able to block the adoption of hard-law provisions, states are more likely
to oppose existing international law provisions with new soft-law agreements. Ceteris
paribus, more powerful states are more likely to be successful in obtaining the adoption
of new legal provisions, and in particular hard-law provisions.
Hard- and soft- law instruments can interact in four general ways, although with
different variants if one considers that instruments vary in their hard- and soft- law
characteristics along different dimensions, such as precision, obligation and delegation to
third party dispute resolution. The four general ways are:
238
•
new soft law instruments can be used to counter existing hard law;
•
new hard law instruments can be used to counter existing hard law;
•
new hard law instruments can be used to counter existing soft law;
•
new soft law instruments can be used to counter existing soft law.
See supra note… and accompanying texts.
85
We first put forward hypotheses as to when states choose hard- or soft- law
instruments as antagonists to existing ones. We then give examples of the four situations
as an initial exploration, subject to further testing.
Hard- and soft- law instruments which address a common issue may arise because
of strategic behaviour or because actors develop them in one forum largely unaware of
developments in another.239 When states strategically develop international hard- or softlaw instruments to counter existing ones, we hypothesize that they choose them in light
of the following factors.
For a state that is certain of its interests and intent on
undermining an existing regime, new hard law provisions would most likely be
preferable, ceteris paribus.
We hypothesize that more powerful states will be best
positioned to press for the development of new countervailing hard law. They alone, for
example, are able to negotiate serial bilateral agreements with third countries, as we saw
our third hypothetical.240
We further hypothesize that, in practice, states tend to choose instruments of a
relatively softer law nature to counter existing hard law. They likely do so for several
reasons. We believe that one reason is that states do not wish to counter existing hard
law directly for systemic reasons, but rather prefer to soften it indirectly, such as through
affecting the interpretation of the existing hard law, and thus its precision and clarity.
Therefore, even when states choose a formally hard law instrument, the instrument may
be soft along the dimension of delegation in order to avoid two judicial bodies
pronouncing on a single issue in distinct regimes. Another explanation may be that the
existing hard law is of a broad scope of coverage, such as the rules of the World Trade
Organization, so that states do not wish to undermine the overall system, but merely
affect the operation of some legal provisions within the existing regime.
Another
explanation may be that the existing hard law exercises some “stickiness” or normative
pull, including through providing a focal point (as respectively predicted by historical
instituionalist, constructivist and rationalist theory), so that states find it difficult to find a
sufficient number of allied states to enter into a new hard-law instrument that directly
counters the existing one. Finally, it may be that some (revisionist) states, dissatisfied
239
240
See supra note… and accompanying text.
See supra notes… and accompanying text.
86
with existing regimes, indeed press for conflicting hard law provisions, but they are
unable to secure the agreement of other (status-quo) parties on such provisions, and fall
back on soft-law agreements as a second-best alternative. Non-state actors, in contrast,
must rely on soft law because only the making of soft law is directly available to them.
They often enroll states to advance their goals through such instruments.
We turn now to examples of the four general alternatives as an initial exploration
of these hypotheses:
(i) New Soft Law Instruments to Counter Existing Hard Law. We have already
encountered a number of cases in which states have adopted new soft law instruments to
counter existing hard law agreements, with all of them involving responses to obligations
under WTO law. In the GMO case, the European Union and other countries pressed,
with mixed success, for new soft-law provisions under the Codex Alimentarius
Commission that would support their positions on the use of the precautionary principle
and “other legitimate factors” besides scientific risk assessment in the regulation of GM
foods. In this way, they hoped to affect the application by panels and the Appellate Body
of WTO law. The EU acted similarly in the cultural-diversity case, responding to the
potential of WTO-related litigation by adopting first a regional Council of Europe
declaration, followed in 2001 by a non-binding Universal Declaration on Cultural
Diversity adopted under the auspices of UNESCO.
Similarly, developing countries, confronted with the hard-law obligations of the
TRIPS Agreement in relation to pharmaceutical patents, were able to obtain support from
UN human rights bodies and the World Health Organization to reframe the issue of
patent protection of medicines in human rights and health terms.241 Developing countries
had some success in the negotiation of the Doha Declaration on TRIPS and Public Health
and the waivers granted to paragraphs (f) and (h) of Article 31 of the TRIPS Agreement.
In promoting the flexible interpretation of TRIPS provisions, these soft-law instruments
can be of use in TRIPS disputes that involve other TRIPS provisions. The result is
reduced precision and determinacy of some TRIPS Agreement requirements, resulting in
a softening of this aspect of WTO law.
241
See supra note… and accompanying text.
87
(ii) New Hard Law Instruments to Counter Existing Hard Law. We have also
encountered countries using new instruments with hard law characteristics to counter
existing law that purports to be of a hard law character, with the aim of softening its
precision and thus its ideal type hard law effects. We hypothesize that states are more
likely to choose instruments with hard law characteristics where their interests are certain
and they can obtain requisite third country support. In some cases, they will build toward
new hard law through first using a soft-law instrument. For example, in the case of
cultural measures, the EU and other countries first obtained the adoption of non-binding
declarations in the Council of Europe and UNESCO. Only then, in 2005, did they sign a
new hard-law instrument, the Convention on the Protection and Promotion of the
Diversity of Cultural Expressions. Even here, they had the option of adopting provisions
regarding delegated dispute settlement that would have more of a hard-law character. For
example, some countries pushed for mandatory jurisdiction of the International Court of
Justice to hear disputes under the UNESCO Convention.242 Had this option been agreed,
there would be even greater potential conflict with WTO rules, as another judicial body
could issue binding rulings in cases involving cultural measures that restrict trade. As it
is, the UNESCO convention only provides for a conciliation procedure which itself is
voluntary.243
Similarly, in the agricultural biotechnology case, countries created a formally
binding Biosafety Protocol to attempt to counter provisions of the WTO SPS Agreement.
Once again, however, they were only able to agree on relatively weak provisions for
dispute settlement.244 As a result, countries enacting biosafety measures have relatively
less leverage than they would were compulsory jurisdiction granted to a separate dispute
settlement body such as the International Court of Justice. Without such delegation, they
cannot obtain a formal legal ruling regarding their rights and obligations under the
Biosafety Protocol. If they were able to do so, this would increase normative pressure on
WTO panels to interpret SPS Agreement requirements to be more flexible in order to
avoid conflict with a potential ruling from a separate international tribunal applying a
242
See Voon, UNESCO and WTO, supra note…, at 640-41 & n.53 (2006) (“[A]n earlier draft [of the
UNESCO Convention] included the possibility of referring disputes to the International Court of Justice
(ICJ) for resolution”).
243
See supra note… and accompanying text.
244
add explanatory cite to the difference in the biosafety protocol dispute settlement mechanism
88
separate international agreement to the same dispute. In such a case, WTO panels would
be pressed to interpret SPS Agreement provisions to be even less constraining on state
behavior.
These cases suggest that powerful actors (in both cases, the European Union) may
be able to press successfully for new, legally binding provisions to challenge existing
hard law (in both cases involving provisions of WTO law). Nevertheless, in both cases,
efforts to proceed further down the hard-law continuum, and to include delegation of
binding dispute settlement, or a clear declaration of the priority of the new treaty in
respect of its specific subject matter, were blocked by third parties such as the United
States. The new legal instrument, acting as an antagonist, was thus nonetheless softer
along the dimension of delegation than the existing one.
(iii) New Hard Law to Counter Existing Soft Law. Logically, it is also possible
for states to adopt new instruments that have hard-law characteristics (such as being
formally binding) to counter existing instruments with soft-law characteristics (such as
being formally non-binding).
The impact of the WTO on the development of the
precautionary principle is an example of this phenomenon. For years, environmental
non-governmental organizations have attempted to define and promote the recognition of
the precautionary principle through soft-law instruments. The UN General Assembly’s
resolution adopting the World Charter for Nature in 1982 was the first proclamation of
the precautionary principle by an international body.245 The Charter’s statement was
followed in 1992 by the Rio Declaration on Environment and Development whose
Principle 15 provides, “Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation."246 The precautionary principle has been
invoked in particular within the European Union for EU legislation. In February 2000,
245
The Charter provided, "Activities which are likely to pose a significant risk to nature shall be preceded
by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential
damage to nature, and where potential adverse effects are not fully understood, the activities should not
proceed." World Charter for Nature, G.A. Res. 37/7, at ¶ 11(b), U.N. Doc. A/RES/37/7 (Oct. 28, 1982).
246
United Nations Conference on Environment and Development, June 3-14, 1992, Rio Declaration on
Environment and Development, Principle 15, U.N. Doc. A/Conf.151/26 (Vol. 1) (Aug. 12, 1992).
89
the European Commission issued a Communication on the precautionary principle which
outlines the Commission’s approach and sets forth guidelines for its application.247
The United States and other countries have attempted to use the rise of the hard
WTO legal system (created in 1995) to put brakes on the development of the
precautionary principle into hard international law, and, in particular, through the
potential recognition of the principle as a rule of customary international law. The
existence of the WTO and its dispute settlement system have highlighted to states how
the application of the precautionary principle can have significant economic
consequences, and in particular for states’ foreign trade. States that are wary of the
implications of the precautionary principle have consistently insisted on the preservation
of WTO rights, leading to compromise language in other agreements regarding their
implications for the WTO, as we have documented.248 When the precautionary principle
has been raised as a defense to trade restrictions in a number of WTO cases, and in
particular the EC-Meat Hormones and the EC-Agricultural Biotech cases, the US has
vigorously opposed its recognition, and thus its application. In both cases, the panel
refused to determine whether the precautionary principle constituted customary
international law. For example, in the EC-Agricultural Biotech case, the panel followed
the Appellate Body’s lead in the EC-Meat Hormones case by declining to “take a position
on whether or not the precautionary principle is a recognized principle of general or
customary international law.”249
The panel rather noted that there has “been no
authoritative decision by an international court or tribunal” which so recognizes the
precautionary principle, and that legal commentators remain divided as to whether the
precautionary principle has attained such status.250 It thus “refrain[ed] from expressing a
view on this issue,” other than declining to apply any such international law principle, if
it exists, to the panel’s interpretation of the relevant WTO agreements, and, in particular,
247
Communication from the Commission on the Precautionary Principle, COM (2000) 1 final (Feb. 2,
2000).
248
See supra note…
249
Panel Report, EC – Measures Affecting the Approval and Marketing of Biotech Products, ¶¶ 7.86-7.89,
WT/DS291/R (Sept. 29, 2006); Appellate Body Report, EC – Measures Concerning Meat and Meat
Products (Hormones), ¶¶ 123-124, WT/DS48/AB/R (Jan. 16, 1998).
250
EC – Biotech Products, at ¶ 7.88.
90
to the SPS Agreement.251 Yet by responding to arguments to decline to apply the
principle, and by finding that the member measures in question violated the WTO SPS
Agreement, WTO panels have arguably put the brakes on the development of this
principle from a soft-law norm to a binding principle of customary international law.
Similarly, in the area of international investment law, there have been a number of
efforts to pass soft-law guidelines regarding the payment of compensation in the event of
an expropriation. For example, developing countries passed a number of resolutions in
the UN General Assembly in the 1970s in their attempt to establish a New International
Economic Order which recognized their sovereign right to determine the amount of
compensation.252
In 1992, the World Bank issued Guidelines on the Treatment of
Foreign Direct Investment that tightened protections of expropriated property but
nonetheless created an exception “in case of comprehensive non-discriminatory
nationalizations effected in the process of large scale social reforms under exceptional
circumstances.”253 The United States, however, has signed over forty hard-law bilateral
investment treaties since the early 1980 that go much further in guaranteeing protection
of investors.254 The US has thus attempted to use bilateral hard-law instruments to
counter the development of any soft-law exceptions to a requirement of full and effective
compensation for expropriations.255
More generally, this case, like the intellectual property case studies referenced
above, as well as the US response to the the Intenational Criminal Court, points to the
increasing use of serial bilateralism as a tool of resource-rich, powerful countries such as
the United States, seeking to undermine the application of existing multilateral treaties,
251
Id., at ¶ 7.89.
Permanent Sovereignty over Natural Resources, G.A. Res. 3171 (XXVIII), ¶ 3 (Dec. 17, 1973) (“each
State is entitled to determine the amount of possible compensation”); and Charter of Economic Rights and
Duties of States, G.A. Res. 3281 (XXIX), ¶ 2 (Dec. 12, 1974) (“In any case where the question of
compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing
State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful
mans be sought.”).
253
World Bank, Guidelines on the Treatment of Foreign Direct Investment, at IV(10) (Sept. 21, 1992)
254
Christopher R. Drahozal, New Experiences of International Arbitration in the United States,
54 Am. J. Comp. L. 233, 235 & n.11 (2006) (citing Bureau of Econ. & Bus. Affairs, U.S. Dep't of State,
U.S. Bilateral Investment Treaty Program Fact Sheet (Mar. 16, 2005)).
255
See, e.g., Guzman, Why LDCs Sign Treaties, supra note.
252
91
whether of a soft- or hard- law nature.256 For a powerful state with the diplomatic
resources and leverage to negotiate such agreements, serial bilateralism has the advantage
of undermining existing legal principles through the use of new hard law, while avoiding
the potential veto of adversaries in multilateral fora.
(iv) New Soft Law to Counter Existing Soft Law. Given the proliferation of softlaw instruments, it should be to no surprise that soft law instruments can also be used as
counters to each other in light of international law’s distributive implications. Many nonstate actors, such as business trade associations, other non-governmental organizations
and international organizations, have created rival soft- law instruments to advance their
aims. Only soft-law instruments are directly available to these actors, which is why we
see the proliferation of rival soft law in a time of economic and cultural globalization.
These non-state actors often enroll states to adopt new soft law, as well as create their
own soft-law instruments. We first give an example of rival standards promoted by
different international organizations to govern corporate respect of labor rights, then turn
to private parties enrolling states in standard-setting, and then turn to examples of purely
private standard-setting.
Both UN organizations and the OECD have developed standards for transnational
corporation’s treatment of labor.257
In doing so, they have responded to different
constituencies. Those favoring more stringent regulation of transnational corporations
have gone to UN human rights bodies, such as the UN Commission on Human Rights’
Sub-Commission on the Promotion and Protection of Human Rights. In 2003, the SubCommission adopted “Norms on the responsibilities of transnational corporations and
other business enterprises with regard to human rights.”258 The norms use mandatory
language, providing, for example, that “Transnational corporations and other business
256
See generally Benvenisti & Downs, supra note, at 611. On the US negotiation of over 100 bilateral
treaties exempting US forces from liability under the International Criminal Court, see e.g. Sean D.
Murphy, Principles of International Law 429-30 (2006).
257
We do not treat the International Labor Organization here, which has enacted numerous international
agreements which constitute hard law along the dimension of obligation, although many of these
agreements are signed by only a few parties and, in any case, the agreements do not include a binding
dispute settlement mechanism.
258
Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc.
E/CN.4/Sub.2/2003/12/Rev.2 (2003)
92
enterprises shall ensure freedom of association and effective recognition of the right to
collective bargaining.”259 In contrast, the OECD Guidelines for Multinational Enterprises
adopted in 2000 use language that is explicitly “voluntary.” Moreover, the Guidelines
show deference to national law by stating that the Guidelines are to be applied “within
the framework of applicable law, regulations and prevailing labour relations and
employment practices” in the foreign country in question.260 Multinational companies
exercised greater leverage in the drafting of the OECD Guidelines both because only
developed countries are members of the OECD and because multinational companies
formally are represented through the Business and Industry Advisory Committee to the
OECD (BIAC).
Private parties have also enrolled states to promote the internationalization of
competing standards.261 In the field of telecommunications, for instance, standard-setting
bodies have developed and promoted the internationalization of competing and often
incompatible national and regional standards. In one “standards battle,” incompatible
national standards for color television led to the adoption of three different standards at
the international level.262
In another, the US, EU and Japan advanced competing
standards for high-definition television (ATV by the US, HD-MAC by the EU, and HiVision by Japan).263
Business groups and non-profit non-governmental groups have also promoted
competing standards through purely private organizations. For example, the accounting
field has seen its prominent private bodies, the International Accounting Standards Board
(IASB) and the American Financial Accounting Standards Board (FASB), back rival
standards governing global accounting and financial reporting practices.264 Similarly,
259
Id. at para. 9.
OECD Guidelines for Multinational Enterprises, DAFFE/IME/WPG(2000)15/FINAL, at § 4 (Oct. 31,
2001),
261
See Mattli & Buthe, Setting International Standards, supra note, at 22-40 (describing the differences
between American and European systems of standardization and the interaction of their competing systems
at the international level).
262
BRAITHWAITE & DRAHOS, GLOBAL BUSINESS REGULATION, supra note…,at 333.
263
Id. at 334.
264
See, e.g., David Tweedie & Thomas R. Seidenstein, Setting a Global Standard: The Case for
Accounting Convergence, 25 NW. J. INT'L L. & BUS. 589, 601 (2005) (documenting the differences in
accounting standards and the "serious challenges" faced by the FASB and IASB if they are to be
eliminated); André Sapir, Europe and the Global Economy, in FRAGMENTED POWER: EUROPE AND THE
GLOBAL ECONOMY 13 (André Sapir ed., 2007) (“The [International Financial Reporting Standards] are a
260
93
business and non-governmental organizations have promoted rival labor rights and
environmental labeling programs. For example, the code of conduct of the Fair Labor
Association (formerly named the Apparel Industry Partnership) contains more lenient
rules than that of the Worker Rights Consortium (which was promoted by student
activists before university administrators).265 As Errol Meidinger writes regarding global
environmental governance, “[a] common scenario is that the establishment of an NGOsponsored program is countered by the establishment of an industry-sponsored program
(or several).”266
In sum, private actors, working independently and through state
representatives and international organizations, promote rival soft-law instruments to
shape international law and domestic practice over time
***
Faced with existing and unfavorable legal provisions, whether of a hard- or softlaw nature, states and other actors have the option of pursuing new hard- or soft-law
provisions to counter or undermine them. We have shown that new and existing hardand soft- law instruments provide a full range of possible combinations, reflecting both
the nature of the status quo ante, the certainty of actor preferences, the constellation of
preferences and the power of states seeking the adoption of new hard- or soft-law
provisions.
We have hypothesized that states are most likely to opt for hard-law
provisions where their interests are most clear, where they are able to obtain the support
rival to the Generally Accepted Accounting Principles (GAAP) used by the US and other systems of
national standards in major countries, such as India and Japan, where the IFRS are currently not
permitted.”); Lawrence A. Cunningham, A Prescription to Retire the Rhetoric of "Principles-Based
Systems" in Corporate Law, Securities Regulation, and Accounting, 60 VAND. L. REV. 1411, 1454-60,
1486-88 (2007) (discussing rivalry between FASB and IFRS promulgators).
265
See Fair Labor Association, The FLA Workplace Code of Conduct (2005),
http://www.fairlabor.org/about_us_code_conduct_e1.html (containing more lenient rules); Worker Rights
Consortium, Model Code of Conduct (2007), http://www.msjc.net/Sweatshop/wrc_coc%5B1%5D.pdf ; as
well as the code of conduct of the Worldwide Responsible Apparel Production (WRAP), an industry
initiative. See also Lance Compa, Assessing Assessments: A Survey of Efforts to Measure Countries’
Compliance with Freedom of Association Standards, 24 COMP. LAB. L. & POL’Y J. 283, 301-03 (2003)
(addressing the multiple public and private fora engaged in this area); and Tim Bartley, Certifying Forests
and Factories: States, Social Movements, and the Rise of Private Regulation in the Apparel and Forest
Products Fields, 31 POLITICS & SOC’Y 433 (2003).
266
Errol Meidinger, Competitive Supragovernmental Regulation: How Could it Be Democratic?, 8 CHI. J.
INT’L L. 513 (2008). Meidinger notes the possibilities for “democratic experimentalism” and “norm
development,” as well as “a form of managed tokenism designed to cloak status quo practices,” and calls
for more empirical work. Id. at 533-534.
94
of a critical mass of other states, and where they independently have the leverage to
engage in a policy of serial bilateralism. We have also put forward reasons why states
more frequently turn to countervailing soft-law instruments, including because of
systemic concerns, the stickiness and normative pull of existing regimes, and their
inability to secure agreement from status quo parties so that they fall back on soft law as
a second best alternative. Non-state actors tend to rely more on soft law because only the
making of soft law is directly available to them, but they often enroll states to advance
their goals. What these cases all have in common is the systematic deployment of hard
and soft law as antagonists rather than simply as alternatives or complements. As we
showed earlier, this interaction can weaken the purported ideal type advantages of hardand soft- law regimes.
6. We maintain that our five hypotheses are generally applicable to areas outside
of international regulation on which we have largely focused. In this final section, we
give examples from two domains of public international law — the international law of
the use of force for “humanitarian intervention” and the international law regarding the
use and possession of nuclear weapons.
Most of our examples in this Article regarding the interaction of hard and soft law
instruments come from the field of international regulation, which reflects the rapid
growth of this area of international law in a globalizing world. For international relations
scholars, economic regulation tends to raise issues of “lower” politics and thus enhanced
prospects for international cooperation, so that our claims are particularly pertinent in this
area.267 However, we believe that our analytic approach also applies to areas of
international law generally.
[THIS SECTION TO BE DEVELOPED]
V. Conclusions
267
On the classic distinction between high and low politics, see Stanley Hoffmann, “Obstinate or Obsolete?
The Fate of the Nation State and the Case of Western Europe,” Daedalus 95, 1966. pp. 892 – 908.
95
Taken together, our hypotheses suggest that hard and soft law may interact in a
complementary and mutually-reinforcing evolutionary fashion, as predicted in the
canonical literature, but only under certain conditions. Specifically, where powerful
actors agree on the aims and terms of international cooperation, soft and hard law are
most likely to complement each other in the ways discussed by Abbott and Snidal,
Shelton, and others, so as to promote greater cooperation. However, in the absence of
such an agreement, or in the presence of distributive conflict among states and other
actors, we can predict, and indeed we have seen in many concrete instances, that states
and other actors will strategically use different hard- and soft- law instruments to advance
their respective aims in the international arena. In these cases, hard- and soft- laworiented regimes may be placed in active opposition to each other, with soft-law-oriented
regimes taking on the “hard bargaining” characteristics of hard-law-oriented regimes,
while the terms of hard-law-oriented regimes may become increasingly flexible,
uncertain and “soft,” insofar as policymakers and adjudicators tread softly in deciding
cases with implications in neighboring regimes.
None of our analysis is to suggest that either hard or soft law is inherently flawed
or not worth pursuing. Where the scope conditions are right, hard and soft law can
interact in a mutually-reinforcing manner, as discussed above. Furthermore, even where
particular issues are characterized by distributive conflicts and fragmented international
regimes, both hard and soft law regimes can play a positive role in encouraging
cooperation, provided that our expectations of these regimes remain realistic. Even in
these situations, while hard- and soft- law-oriented regimes can be expected to lose some
of their traditional advantages — such as flexibility and deliberative, technocratic
decision-making in soft law regimes and legal certainty in hard law regimes — they
nevertheless offer useful fora in which states may negotiate over the adoption of
international standards and attempt to address their implications.
More generally,
multilateral regimes, while subject to distributive conflicts and to forum-shopping and
inconsistency across regimes, can still provide their traditional functions of lowering the
transaction costs of negotiations, providing a common vocabulary for the parties,
clarifying at least some of the mutual understandings and obligations of the parties, and
contributing to regulatory capacity building in less-developed countries.
96
In addition, we suggest, tensions and even conflicts among hard and soft
international law regimes should not necessarily be lamented. The tensions we observe
simply reflect underlying differences among states and state constituencies, and in
particular among powerful ones, in a diverse, pluralist world. In such a context,
overlapping, fragmented legal regimes can also provide a service to each other, signaling
states and international decision-makers to tread softly in applying their particular rules,
taking account of developments in other spheres of international law and politics.268 For
example, they can prompt internal responses within the WTO regime to preserve its own
political legitimacy. In the context of agricultural biotechnology regulation, the CBD’s
Biosafety Protocol has provided a counter-voice which can protect the WTO system from
the WTO dispute settlement system’s relative insularity from global politics. These
agreements, we contend, will interact, and over time, they can operate recursively. In
doing so, they can help stabilize conflict, such as by reducing the likelihood of trade
wars. They can also facilitate states’ mutual accommodation of regulatory difference at
least to a greater extent than in the absence of such institutions.
Although our aim in this Article has been strictly positivist, our findings have
normative implications. As Karl Llewelyn wrote from a legal realist vantage, A[t]he
argument is simply that no judgment of what Ought to be done in the future with respect
to any part of law can be intelligently made without knowing objectively, as far as
possible, what that part of law is now doing.@269 By providing a richer understanding of
how and why international hard- and soft- law instruments are developed and interact,
this Article’s findings are relevant for any actor wishing to engage with processes of
international law-making. Even though we foreground the roles of power, inequality and
distributive conflict, we also provide an explanation of the leverage that developing
countries and constituencies within them retain because of the distinct politics of
implementation. Moreover, our analysis both recognizes the critical role states continue
268
For a related concept of “dialectical review” involving the interaction of international and national
courts, see Robert Ahdieh, Between Dialogue and Decree: International Review of National Courts, 79
N.Y.U. L. REV. 2029 (2004).
269
Llewellyn called for Athe temporary divorce of Is and Ought for purposes of study.@ See Karl
Llewellyn, Some Realism about RealismBResponding to Dean Pound, 44 HARV. L. REV. 1222, 1236-37
(1931).
97
to play in the international law system, while also disaggregregating the state, especially
in terms of the politics of implementation, in order to provide a more complex and richer
understanding of the various roles hard and soft law play as alternatives, complements
and antagonists in international governance.
Ultimately, we contend, the relationship between international hard law and soft
law instruments cannot be characterized in a universal or invariant fashion. Rather, we
have argued, the interaction of hard and soft law depends on the respective power of the
key players, the degree of distributive conflict among them, the constellation and
character of regimes within a given regime complex, and the distinct politics of
implementation. The canonical, complementary and evolutionary relationship between
hard and soft law is not a myth, we maintain, but that relationship holds only under a set
of scope conditions, including broad agreement between powerful states on the aims and
terms of international law. Where these conditions fail to hold, the interaction between
hard and soft law can be far more adversarial than the canonical literature suggests.
Understanding the varied interactions of hard and soft law in a wider set of cases, we
believe, represents the next major challenge in this field of study.
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