On The International Soft Law

Soft law, a relative concept to hard law, refers to “the rules of conduct which inprinciple have no legally binding force, but which nevertheless may have practicaleffects”. Soft law originally came from the field of international law; its emergenceand practice can be traced back to more than one hundred years ago, but it didn’tarouse the attention of legal science circles on the issue until in the1970s due to therise of soft law in the field of environmental protection. Soft law has unique practicalutility in international governance, regional governance and internal governance, so ithas received the attention of legal science circles and has become an importantresearch field of legal science. Compared to international soft law which has nearlyhundred years of practice, soft law researches started later and have lagged behind theinternational soft law practice.Soft law context can be divided into international soft law one and domestic softlaw. Chinese scholars attach more importance to researches on domestic soft law. TheLaw School of Peking University founded Soft Law Research Center in December2005, focuses on researches of domestic soft law and has obtained great achievements,showing the rise of researches on domestic soft law. Foreign scholars lay particularstress on the researches on international soft law and have achieved certain researchresults in the fields involving international environment, international human rightsand international economy. International soft law plays an important role in specifyingand adjusting the relations of the international community.In recent years, theresearches on international soft law present the tendency of fast growth and theinternational soft law problem is becoming a hot spot and vital project. however, theresearches on the basic problems such as ontology of international soft law are notenough through. Besides, the lack of systematic researches on the problem ofinternational soft law embodies the significance of further researches on the issue.The thesis chooses international soft law issues as the research topic, centers theontology, development, the effectiveness, value, the role in the international rule oflaw as well as its enlightenment to China. On the basis of scholars’ different researchperspectives on international soft law and combining the practice of international softlaw in the environment, human rights, economic, commercial and other fields, the thesis conducts systematic researches on the ontology, the causes, and developmenttrend of international soft law, the effectiveness, possible and necessary issues ofinternational soft law, and how to use the existing international soft law theory toguide the law practice in China. The study of international soft law can help deepenthe understandings of international law from multi-angle and multi-level and helpexpand research view of law, so it has certain theoretical significance. The thoughtand mode of international soft law is helpful to improve the consciousness of the ruleof law in China and promote the formation of good law in China and the realization ofgood governance, so it is of reference significance on the implementation of China’sparticipation in international law and domestic rule of law. The innovation of thethesis lies in the innovative research theme; it is the complement study of internationalsoft law problems, clarifies some basic issues in international soft law, has referencevalue for the future international soft law researches and has enlightenmentsignificance to the rule of law practice in China.The research is conducted under the context of international soft law. From thepractice of international soft law and the definition of law, international soft law is notlaw and does not belong to the origin of international law. International soft law hasdiverse forms and the common forms include the resolutions, decisions declaration,statement, proposal, guidelines, standards, general rules, action plan and actionplatform of the international organizations and international meetings. Internationalsoft law mainly relies on non-mandatory binding security for implementation;although the binding is weak, it can produce real effect. The thesis begin analysisfrom the two core characteristics, namely “soft law is not law” and “soft law haspractical effects”, and argues that the definition “soft law is the rules of conduct whichin principle have no legally binding force, but which nevertheless may have practicaleffects” can cover the connotation of soft law. International soft law is in the earlystages of the historical process and its development has plasticity. Besides, thedefinition of international soft law is questionable, but it is the fact that there is a lotof international soft law in today’s international practice so the study of internationalsoft law is a realistic demand.The model and ideas provided by multidimensional theory should be used to helpunderstand the scopes and transformation of international soft law. As for the divisionof international soft law and hard law, legally binding force should be considered asthe standard; the dichotomy of one-dimensional theory should be considered as the foundation; on the basis of dichotomy, the distinction of soft law and other rules ofinefficacy should be conducted. The relationship of international soft law and hardlaw includes mainly three forms, namely, complementation, transformation andconflict. There is close relation between international soft law and ethics. Internationalsoft law specifies the actions in text form and can set or change through specificbehaviors; ethics specifies the psychology and evolves in the long practice of humanbehavior and ideas.The causes of the rise of international soft law are mainly manifested in theaspects of trend of globalization, the large-scale emergence of non-governmentalinternational organizations, poor adaption of traditional legislative mode to thedevelopment of the society. International soft law can make up for the defects of hardlaw and effectively meet the needs of era of globalization for international rules, has aliving space in the international community, and will keep the status quo and continueto play a role in some areas; its main transformation includes the change ofinternational treaties, customary international law and domestic law.The effectiveness of the international soft law is non-mandatory and has noeffective hierarchy. The intrinsic rationality of international soft law is the objectivereason of its effect and the behavior rationality of international main bodies is thesubjective reason that international soft law is abided by. The compliance ofinternational soft law has realistic reasons and it is easily affected by power politics.The defects and the compliance asymmetry of international soft law restrict theexertion of the effectiveness of international soft law. The fact that international softlaw plays a role cannot be ignored, nor can be regarded as a model. In order to betterpromote the effectiveness of international soft law, its formulation should reflect goodethical values, should adhere to the people-orientation, strengthen its moral reason,make it become a good law, regulate its establishment procedure, guarantee theparticipation of international subjects and the formation of obedience consciousness,and make it play better role in international communication.Global governance should strengthen the fusion of soft law and hard law, andachieve mixing governance of soft law and hard law. Under the mixed governance,from the perspective of the effect scope, hard law and soft law present the relation of“center” and “periphery”.The governance theory of international law develops in theprocess of globalization and has theoretical guiding significance on the study of“what ought to be” and “what it is”. The governance of international law requires realizing “good law” and “good governance” at different levels. International soft lawhas the characteristics of multi-subject of formulation and diverse forms and has apromoting effect on the development of the international rule of law. The ethicalvalues and legislative functions that international soft law embodies can contribute tothe shaping of international good law; the intrinsic rationality and diversification ofthe governance body of international soft law can help the realization of goodgovernance around the world. International soft law should take friendly andnon-confrontational form to build global structure and order, thus, it is conducive tothe realization of the international rule of law.China is an influential developing country, and the international rule of lawcannot separate from China’s participation. Therefore, China needs to improve rightof speech in the international community, set up the image of the rule of law in Chinaand influence the world development in the direction of the rule of law. Besides,China is in period of deepening the reform, and it is necessary to refer internationalsoft law. International soft law can guide domestic legislations, can be introduced bydomestic legislations and become a part of domestic law, also can guide theformulation of domestic soft law and improve the reason of domestic soft law. Inaddition, the rule of international soft law can help form the rule of law consciousness;multi-subject participation can help form supervision and restriction. Moreover, thethought and mode of international soft law can help the implementation of the rule oflaw.