“Hard law” refers to binding international legal norms or those which have  d.
 d. subject to the provisions of Article 59 [“The decision of the Court has no
coercive character. “Soft law,” on the other hand, refers to norms that are non-
binding in character but still have legal relevance. Examples of “hard law” are the
provisions of the U.N. Charter, the Vienna Convention on Diplomatic Relations, the
Geneva Conventions of 1949 and other treaties in force. Examples of “soft law”are
resolutions of the U.N. General Assembly and draft articles of the International
Law Commission.
Soft law usually serves as a precursor of hard law. The Universal Declaration of
Human Rights is one such example. It was a “soft law” when it was adopted by
resolution of the U.N. General Assembly in 1948, but it has led to the development
of “hard law” with the adoption of two binding covenants on human rights, i.e., the
International Covenant on Civil and Political Rights andthe International Covenant
on Economic, Social and Cultural Rights.
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The term soft law is used to denote agreements, principles and declarations that
are not legally binding. Soft law instruments are predominantly found in the
international sphere. UN General Assembly resolutions are an example of soft law.
Hard law refers generally to legal obligations that are binding on the parties
involved and which can be legally enforced before a court.
Hard law versus soft law
The management of common international affairs relies on formal
institutions and regimes empowered to enforce compliance, as well as
informal arrangements that people and institutions either have agreed to, or
perceive to be in their interest. If one focuses, here, on the former aspects
and envisages global governance from the perspective of a rules-based
system, what are those rules? Where does one find them?
A usual way to start exploring this issue is to consider what constitutes
international law – or in legal terms what are the sources of international law. The
classic response to this question can be found in Article 38 of the Statute of the
International Court of Justice (ICJ), an Annex to the UN Charter adopted in 1945.
Article 38 defines the sources of law that the ICJ shall apply to settle disputes:
 a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states ;
 b. international custom, as evidence of a general practice accepted as law;
 c. the general principles of law recognized by civilized nations ;
binding force except between the parties and in respect of that particular
case”], judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
International conventions, or treaties, are the most straightforward instruments
used by states to consent to limitations of their sovereignty. They become legally
binding after a process of signature and domestic ratification. The use of treaties
varies across domains of activities. They have proliferated to govern international
investment flows, with more than 3,000 bilateral investment treaties currently in
force. They have remained rare in the domain of global health or in the domain of
finance and banking.
Whereas many treaties are negotiated and developed as a response to specific
needs between specific groups of countries (from bilateral to multilateral
groupings), they may also be the result of a codification exercise of existing
customary law. This has been the case in humanitarian law with the Geneva
Conventions or with the Treaty of the Law of the Sea. Treaties that contain
provisions coming from international custom have effects beyond their mere
signatories (for those provisions). Indeed, international custom, once established,
has a universal reach. The difficulty, however, lies in the establishment of a general
practice by states, a practice that in addition has to be accepted as law. Evidence of
practice and legal acceptance is a demanding requirement, thus limiting the scope
of international custom. Proof of practice does not apply however to a specific case
of rules – called jus cogens – that benefit from a higher status in international law.
These rules are peremptory without any opt-out possibility for states. They
include the prohibitions of aggression, genocide, slavery, racial discrimination,
crimes against humanity and torture, and the right to self-determination
As indicated in Article 38 (d), international court decisions do not create
obligations beyond the parties and the specific case at hand, indicating a clear
willingness of states to limit judicial delegation. Yet, nothing prevents states to
explicitly go beyond this role for international courts, as best exemplified by the
case of the European Court of Justice (ECJ) in the European Union (EU). Opinions
of that Court are binding upon member states and become part of EU law.
Although the number of rules produced by the instruments listed in Article 38 of
the ICJ Statute can already be high, global governance relies on many other rules,
albeit most of them with a different legal status. First, one must consider acts by
international bodies or organisations created by international treaties. In that
category, some acts produce legally binding effects on members. For instance,
resolutions of the UN Security Council to prevent its members to conduct some
specific transactions with a specific State are legally binding upon the UN
membership. Similarly, directives or regulations adopted by the EU (jointly by the
Council of Ministers and the European Parliament) are binding upon its members.
But many “regulatory” acts of those international bodies lack such legal
enforceability power. Consider for instance the World Health Organisation (WHO)
Code of Marketing for Breast-Milk Substitutes, the Organisation for Economic
Cooperation and Development (OECD) Guidelines for Multinational Enterprises, or
the UN Global Compact.

A second, and expanding, category includes “regulatory” acts adopted by non-state

actors, be they standard-setting organisations such as ISO (see week 1) or ad-hoc
standard-setters, such as WWF and Unilever for MSC (see week 1). As mentioned
in week 1, the number of standards developed by non-state actors has exploded in
the last 30 years, leading to vivid discussions about their meaning and impact on
international law. Standards or codes of conduct established by non-state actors
are voluntary and lack legal enforceability at the international level. Yet, given that
they may induce significant change of behaviour by those adopting them, they
constitute a kind of “soft law” in contrast to the “hard law” nature of instruments
listed in Article 38 of the Statute of the ICJ. Both categories are now widely
considered as useful complements, rather than competitors, to each other.