Ambassador Roger Dubach, Deputy Director at the Directorate of International Law (Swiss Federal Department of Foreign Affairs), welcomed all participants to the roundtable and highlights its objectives. In his opening remarks, he sketched the ongoing shift under way in how international regulation works. Soft law, as an example, is increasingly trending in the 21st century even if it is not a new phenomenon. It is in that timely spirit that the EU Delegation to the Council of Europe and the Permanent Representation of Switzerland to that same institution co-hosted this event.
Soft law instruments – i.e. non-legally binding instruments with a certain degree of normative character – come with significant benefits such as flexibility and adaptability. In the current multilateral system, where achieving consensus can be trying, the benefits of soft law can provide an effective alternative. Conversely, those very same advantages also give rise to challenges in terms of for instant legitimacy. After the opening remarks of Ambassador Rolf Mafael, Chair of the Council of Europe Committee of Ministers, the event set out to analyse the concept, opportunities and challenges of soft law instruments from the perspective of different experts from their respective fields and organisations, ranging from the Organisation for Economic Cooperation and Development to the European Commission and the Council of Europe.
The first point of order was to agree on the definition of soft law. Ambassador Corinne Cicéron Bühler, Director at the Directorate of International Law (Swiss Federal Department of Foreign Affairs), outlined the experiences made by Switzerland as one of the very first country to have drafted a report on soft law. At this stage, the panelists agreed that there is not a common definition of soft law in international law. Several panellists explained the reasons behind this lack of common definition with respect to the multitude of soft law instruments adopted by different bodies and through different procedures, as well as the difficulty of drawing a clear line between soft law instruments and purely political instruments.
Despite the lack of a commonly shared definition, a consensus emerged during the roundtable on the concrete advantages of soft law instruments. Ms Josée Fecteau, Director for Legal Affairs of the Organisation for Economic Cooperation and Development underlined how their flexibility and adaptability give States manoeuvring-space to implement them while taking into account their own specific domestic circumstances and concerns. Moreover, their lack of a binding character allows countries to share best practices and commit to ambitious principles and approaches without having to worry about their full or quick implementation.
The panel also discerned that soft law instruments can turn into hard to law, either because they serve as a basis of inspiration for international treaties or because they are taken into account by courts in binding judgments: “the impact of a soft law instrument may in practice not be so very different from the impact of hard law as one might theoretically think”.
Mr Robert Spano, President of the European Court of Human Rights agreed with this perspective, recalling that the lack of binding character does not entail a total absence of legal effect and that Council of Europe’s Recommendations have an impact on the institutional structure of the Court as well as on its case law. Mr Jörg Polakiewicz, Legal Adviser of the Council of Europe, added in this respect that “the effectiveness of soft law standards depends not only on the authority and collective wisdom of the women and men who draft them, but also on the international environment, which may be more or less receptive to the new standards”. Thus, certain standards contained in soft law instruments may eventually impose themselves as “authoritative”, provided that member states are seen to comply.
Notwithstanding the conceptual ambiguity surrounding soft law, it is often and increasingly used in international relations and law. The 1000+ Recommendations issued by the Council of Europe Committee of Ministers for instance, are a testament to the former. Nevertheless, and as was demonstrated by the panellists during the event, there are concerning challenges linked to soft law instruments.
To begin with, Ms. Anne Peters, Director of the Max Planck Institute for Comparative Public and International Law, listed a litany of issues relating to legitimacy problems in terms of legal uncertainty, democratic deficiency or power asymmetries, (non-) participation of parliaments and the risk for parallel regulation. Other concerns were voiced and echoed with regard to transparency and the participation of non-state actors within regulation through soft law instruments, notably by Mr Boriss Cilevics, Parliamentary Assembly of the Council of Europe Member, Chairperson of the Committee on legal Affairs and Human Rights. In general, the second panel demonstrated that the swiftness of soft law conclusion, while an advantage in some scenarios, may also reduce the quality or rationality of these instruments through lack of deliberation. Furthermore, we must be weary for the privatisation of law-making through the influence of non-state actors such as businesses and civil society on soft law regulation. Finally, as was underlined by Ms. Alina Orosan, Chair of Committee of Legal Advisers on Public International Law, soft law is not always as effective as legally binding instruments since they can be difficult to monitor. Therefore, institutions engaged in soft law regulation must be cautious “not to overplay their hand” warns Prof. Martin Kluijer, Judge at the Supreme Court of the Netherlands and Substitute member of the Venice Commission.
Overall, and as aptly summarised by Ambassador Meglena Kuneva, “…whilst Soft Law can serve as a much welcomed source of inspiration for addressing the current and future challenges, it can, above all, help us take advantage of the opportunities that lie ahead of us!”