J. J. Kirton and M. J. Trebilcock 2004, Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance

Abstract

Kirton and Trebilcock have taken on an issue that poses as much of a challenge for researchers as it does for policy-makers. Should international law be ‘‘hard’’ or ‘‘soft’’? What are the advantages of one over the other and how do they interact? The editors set out three objectives for this volume: first, to explore ‘‘how, how much, and where voluntary standards and informal institutions have worked, by themselves and in tandem with highly legalised and organised hard law organisations’’; second, to identify ‘‘why soft law standards and institutions have worked’’; and third, to point to ‘‘how voluntary standards and informal institutions might and should be used’’ (p. 7). Through this emphasis, they contribute to the steadily growing literature in international relations and global (and multi-level) governance that takes soft law seriously. This is in contrast to realist perspectives that disregard soft law on the assumption that powerful actors such as states and multinational corporations have no reason to be influenced by rules without formal enforcement mechanisms. It is also a departure from legal analyses that downplay soft law for the simple reason that it is not formally international law, i.e., is not considered to be law by the International Court of Justice, which recognizes only treaty-based or customary law. This volume shows how much insight can be gained when moving beyond an ad hoc approach to the study of isolated case studies and instead consider a larger field of cases across three different regimes. The volume is divided into an introduction followed by four sections. The first three of these consider the standard setting for sustainable forestry, labour, and corporate responsibility, respectively, and the final section returns to broader questions of international institutions and soft law. The introduction describes the background for the debate on the soft/hard law choice, which stems from increasing frustration with burdensome international and national legalisation processes that create binding commitments, and from the concurrent flourishing of more voluntary policy instruments such as standards and codes of conduct. In constructing working definitions of hard and soft law, the editors draw on the literature on international legalisation, such as Abbott and Snidal (2000), who distinguish