Professor Mary E. Footer (University of Nottingham - School of Law) has posted The Role of 'Soft' Law Norms in Reconciling the Antinomies of WTO Law on SSRN. Here is the abstract:
This paper seeks to broaden our understanding of the role that soft law norms play in WTO law in regulating difficult and complex situations, in making hard WTO law more accessible and easier to comprehend and in offering solutions to seemingly intractable problems. It begins by locating law norms in WTO law and practice, by accounting for normative differentiation in the WTO and by examining the facilitative and coordinating role those soft law norms can play. The discovery that variable normativity in the WTO can have real effects on trade is explored on the basis of four propositions. First, soft law norms can strengthen hard WTO law, by supplementing it or by filling gaps in the law. Second, soft law norms in the field of WTO law can act as a precursor to the evolution of binding legal rules. Third, the sourcing or referencing of 'soft' law norms from external institutional fora is having an important effect on the harmonisation and mutual recognition of Members' regulatory systems in areas of concern to consumers. Fourth, 'soft' responsibility can arise from the operation of soft law norms, in much the same way as ordinary responsibility, yet its effects have not been clearly identified.
And from the text:
A definition of soft law is usually avoided in favour of its characterisation or identification12 and, as suggested by Christine Chinkin, it may include a variety of instruments ranging:
‘from treaties but which include only soft obligations (‘legal soft law’) … to non-binding or voluntary resolutions and codes of conduct formulated and accepted by international and regional organisations (‘non-legal soft law’) ...’13
This distinction between ‘legal soft law’ and ‘non-legal soft law’ goes to the nature of the instrument in identifying soft law in terms of its material or substantive softness and/or its procedural softness.1
