Timothy Meyer

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Fordham International Law Journal

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international law, soft law, compliance, nonproliferation


International Law | Law


This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that states routinely enter into agreements establishing international rules and regulatory standards in a wide range of subject areas, from banking to arms control to the environmental protection, that are not legally binding.


I then argue that states use soft law as a way to delegate authority over the content of legal rules and regulations to states that possess a particularly strong interest in those rules. Making an agreement non-binding lowers the penalty associated with deviating from existing legal rules, and thus encourages states with a significant interest in the content of legal rules to unilaterally innovate. This approach to the evolution of legal rules can, under certain circumstances, lead to welfare-enhancing amendments to legal rules by avoiding the hold-up problem involved in renegotiating contracts in which every state effectively exercises a veto over potential amendments. As such, the choice between soft law and hard law implicates a tradeoff between the procedural equity inherent in the doctrine of sovereign equality, and the efficiency of legal rules. Soft law privileges the latter over the former.



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