An Inquiry Into Soft Law As A Source Of International Law

It is widely accepted that article 38 of the Statute of the International Court of Justice has made a list of the sources of international law. As to international treaties and customs, scholars usually called them hard law, for they are legally binding inter-subjectivity in international law. Soft law, with the greatest characteristic of no legally binding power, is the corresponding concept of hard law, but the efficiency caused by soft law between the parties can not be denied. Soft law exists in various fields, among which the emerging fields of international environmental law and international human rights law are viewed as representatives for some of the characteristics of soft law match the particularity of these areas very much. If soft law can be applied in these areas correctly, it will lead to a better international prospects. The body of the article is divided into four parts, and various aspects of soft law are discussed fundamentally.The first chapter interprets the problem of what is soft law. Soft law refers to a kind of quasi legal instruments without or with a weaker binding power than traditional law. Soft law is the corresponding appellation of hard law. It is usually associated with international law, but recently it is also used in domestic law system. This is the definition of soft law from wikipedia. As to the nature of soft law, scholars disputed a lot and even stand opposite to each other. One of the schools suggested that soft law falls in the category of law according to the essential feature of law, namely, first, law is the rule for people's behaviour; second, law is the rule with external binding power to people's behaviour; third, law is the behavior rule formulated, negotiated and recognized by certain human community. Soft law comply with the characteristics of law, which leads to the conclusion that soft law is a kind of law. The other school conceived that soft law is not law. Based on the gray area theory and the deny of the dispositive law view of soft law, they concluded that soft law is not law. Finally, the basic features of soft law was examined in a series of elaboration.Chapter 2 mainly discusses why the problem of soft law emerges. The reasons for the rise of soft law has its inherent uniqueness. The human society and economy is in the process of continuous development. In daily life, there was more social relations to be legally regulated, and the gap between the continuous growth of legal demanding and the lag of the existing legal system exists. International law is developing,the source should be expanded. thus, hard law already cannot satisfy the needs of the development of social reality, and it has a comparatively high cost in legislation and implementation. In addition, the globalization of economy also promoted the formation of soft law. Because of their respective domestic legislation, intercourses between nations often cause contradictory. The diversity and complexity of modern social relationship and the limitation of understanding ability of lawmakers find a way out for the rapid development of soft law. What is more, people pursue justice in international intercourse, which make them seek autonomy rules. The implementation of hard law requires many conditions, and is insufficient in achieving equity and justice. These factors make the application of soft law become possible. According to the reasons for the rise of soft law, we can find that to some extent there are some disadvantages with hard law. Therefore, the advantage of soft law emerges. These advantages are mainly reflected in the following factors. Firstly, soft law is much more flexible than hard law, which leaves a space for discretion. Secondly, soft law often regulates the behavior between non-state entities. Thirdly, soft law can make up the legal gap of hard law, and it is easy to change and adjust. Fourthly, the cost of the formulation and application of soft law is low.Chapter 3 is the main part of this article. The problem to be solved in this part is what the function of the soft law. A problem has been theoretically analyzed:can soft law play its role, if the overall international law as soft law appears in legal field? The author believes that, the answer is definitive. It depends on the particularity of the field which international soft law is applicable to. The applicable field of international soft law mainly concentrates in the international environment, international human rights or international economic order, etc. It is not difficult to discover the common character of these areas, namely, the interests protected by them belong to the whole humanity. The overall interests of the international society are worthy of our attention, and the common future of the whole mankind rely on international cooperation or international coordination, even the necessary concession or the sacrifice of individual interest. So the problem cannot be solved by struggle, it is the factor that has to be considered when we deal with the realistic international relations, because it may be in favor of the realization of the fundamental interests of all countries. Therefore, international law on a weak law state, the soft law bases on its starting point leading to protect the interests of the common humanity, which still plays a significant effect. The soft law under the international practice illustrates its function better. Along with the increase of international organizations, the effects of the international organizations'resolutions have been enhanced, and the resolutions of some representative international organizations, such as the general assembly resolution, could turn into hard law in certain situations. In addition, on the specific level, soft law in the fields of international environmental, the international economic and international human rights have played an important role.Chapter 4 expounds how we use the soft law, maximize favorable factors and minimizing unfavorable ones to promote the health development of the international society. In the international intercourse, we expect that it will fulfill the coordinated process to achieve the final win-win situation through the collaboration. The characters of the soft law could make it achieve such effect. Finally, China as a developing country had signed and acceded to many international treaties in various fields, which bears certain effect to promote the development of international law, meanwhile, China had also adopted many soft laws. Therefore, the soft law plays a meaningful role for the development of our country's legal system, and has many inspirations for us. The research of soft law documents will be beneficial to China's foreign relations and international cooperation, and it is also in correspondence with the development and trend of the time. So the theoretical research on soft law is very necessary. As a developing country, China bears and faces pressure and challenges coming from the international society and the domestic society. But this is a case under which the challenges and opportunities coexist. We may say that soft law is a window, through which allows us to recognize our own shortcomings, learn from others and benefit us.