The interplay between soft law and hard law and its implications for global marine fisheries governance: A case study of IUU fishing

Abstract

International soft law is not legally binding, but nevertheless it embodies mainstream values and influences the formation of hard law in global governance. Marine fisheries have become important arenas of global governance, in which developing states are crucial participants. The interactions between soft law and hard law in global marine fisheries can be mainly summarized as follows: soft law can be the precursor for hard law and be implicitly introduced into hard law to enhance normativity; hard law can also be incorporated into soft law. This paper explores the IUU fishing case to illustrate the significant role of soft law on international fisheries law and identify gaps in global marine fisheries governance. The development of international instruments to combat IUU fishing within FAO undergoes a process from voluntary to legally binding with the engagement and promotion of some developed states for their benefits. But IUU fishing concept is defective in its drafting as well as in practical application and indicates the value of emphasizing conservation over economic and social development, which is contrary to the principle of sustainable development and fails to meet the requirements of the developing states. The paper suggests to fill this gap by converting existing values in soft law to foster fishing rules that benefit all states and provide some insights towards this direction.