Soft Law
All resolutions adopted by organs of international or intergovernmental organizations (whether of a legal or non-legal nature) pertain to the body of “soft law.” Terms such as resolution , declaration , or decision are used almost interchangeably by international organizations.
The concept of soft law is used to distinguish its rules of law (sometimes drawn up unilaterally) from those considered to be the classic rules of international law, known as “hard law.” Hard law is based on rules and regulations developed and adopted with the participation and explicit consent of the States or other actors who will be bound by these rules. International treaties and conventions fall under this category of law, for instance.
Definitions
The legal definitions of the words resolution , declaration , recommendation , and decision are not strict. Nevertheless, it is possible to try to clarify the actual meaning of each of these terms, although their practical use may not reflect these variations.
Resolutions, Decisions, and Declarations
- Resolution: This term is used to designate the entire set of norms that make up soft law, whether binding or not, and is used most frequently. Both decisions and declarations are resolutions.
- Decision: This term is sometimes used to define a resolution that is legally binding. Hence, a Security Council resolution adopted under Chapter VII of the UN Charter is considered to be a decision (Art. 25 of the Charter).
- Declaration or recommendation: These terms describe resolutions that can be qualified as expressing a statement of intent. They do not entail any binding legal obligations.
It is important to make a distinction between the following types of regulations or resolutions, adopted by international organs:
- Self-regulating resolutions are rules that directly affect the organ that adopts them, such as regulations on internal operations. In this case, the texts are automatically binding.
- Non-self-regulating resolutions are rules aimed at regulating international relations. Theoretically, these texts are not of a binding nature, but they may have a status of law.
Legal Obligations
The force or status of law ascribed to soft law norms varies. Most resolutions are not of a legally binding nature. In other words, their implementation is not mandatory. However, depending on the entity that adopts these texts, and their form and content, the resolutions may create obligations for States and may have a certain status of law.
Most resolutions adopted by UN entities do not entail mandatory legal obligations. This is even the case for Security Council resolutions, except those adopted under Chapter VII of the UN Charter, and for most resolutions and declarations adopted by the General Assembly. It is often the vague terminology used by international organizations to achieve consensus among the States that results in the absence of legal obligations, whereas precise recommendations can have an impact even if the resolution adopted does not carry mandatory force of law.
Legally Binding Resolutions
Some resolutions are legally binding. This depends on the organ that adopted them and the powers it exercises. Taking the UN as an example (in a simplified version), a strict interpretation of Article 25 of the UN Charter provides that only Security Council resolutions adopted under Chapter VII (which regulates actions undertaken with respect to threats to the peace, breaches of the peace, and acts of aggression) are binding. In 1971, the International Court of Justice gave a much broader interpretation of the scope of this Article; however, doubts persist on the binding nature of Security Council resolutions adopted under chapters other than Chapter VII.
UN General Assembly Resolutions
As for resolutions adopted by the UN General Assembly, there has been extensive debate over whether they are binding. Though they are not a formal source of law, General Assembly resolutions do retain strength and authority since they reflect the opinion, or “general will,” of States on a specific subject. If Member States specifically give their consent to be bound by a decision, this can make it legally binding.
In other words, one must not underestimate the legal impact of a resolution that all or a majority of States declare is a legally binding norm: this reflects “general practice accepted as law,” or opinio juris . In this case, the resolution can be said to have codified a customary norm that States had already recognized in daily practice, and it could be used as one of the sources of law applied by the International Court of Justice (Art. 38.1 of the ICJ Statute). Hence, the authority and weight of a legal obligation are not derived from the kind of entity that produces the norm but rather from its own customary nature. The fact that a resolution may not include any enforcement mechanism does not mean that it does not imply any obligations.
Often, if a resolution is formulated precisely enough to allow its application without any further interpretation, and it was adopted unanimously by Member States, it may have significant legal impact. A General Assembly resolution, adopted by a large majority, using precise language, and reflecting the opinion of the international community, may be considered as being of a legally binding nature, although it may not be enforceable.
The Legal Status of Soft Law Norms
The force of law that a norm of soft law may have—and hence its potentially binding nature—must be determined on a case-by-case basis, by:
- possible customary nature,
- the precision and specificity of its content, and
- the manner in which it was adopted (e.g., whether by consensus or not).
The force of law can be determined by the International Court of Justice in conformity with the general principles of the hierarchy and interpretation of norms of international law.
▸ Hierarchy of norms ▸ International Court of Justice ▸ International law
For Additional Information: Cassese, Antonio, and J. H. Weiler. Change and Stability on International Law-Making . Berlin: de Gruyter, 1988.
Detter, Ingrid. “The Effect of Resolutions of International Organizations.” In Theory of International Law at the Threshold of the Twenty-first Century: Essays in Honour of Krzysztof Skubiszewski , edited by Jerzy Makarczyk, 381–92. The Hague: Kluwer Law International, 1996.
Shelton, Dinah. “International Law and ‘Relative Normativity.’” In International Law , edited by Malcolm D. Evans, 145–72. Oxford: Oxford University Press, 2003.
Weil, Pierre. “Towards Relative Normativity in International Law?” American Journal of International Law 77 (1983): 413–42.