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Hard Versus Soft Law in International Security

97 Pages Posted: 21 Mar 2011 Last revised: 26 Sep 2011

Gregory Shaffer

University of California, Irvine School of Law

Mark A. Pollack

Temple University - Department of Political Science; Temple University - James E. Beasley School of Law

Date Written: March 15, 2011

Abstract

The use and choice of hard and soft law in international governance has been the subject of ever-increasing scholarly interest. This law and social science literature assesses the relative strengths and weaknesses of hard- and soft-law instruments as alternatives for international governance, as well as how these instruments can be combined as mutually reinforcing complements to lead to greater international cooperation over time. By contrast, we argue, hard and soft law can and do operate, under certain conditions, as antagonists. In short, states and non-state actors increasingly use soft law not to "progressively develop" existing hard law, but to undermine it. In our previous scholarship we have demonstrated this antagonistic interaction of hard and soft law in the economic realm, where the international trade system often interacts in antagonistic ways with related areas of international environmental and cultural law. In this Article, we look beyond economic law, examining the interaction of hard and soft legal instruments with respect to two fundamental questions of international security law: (1) the legality of the threat or use of nuclear weapons, and (2) the legality of the use of force in humanitarian intervention under the "responsibility to protect" doctrine. In both cases, states and non-state actors have employed hard and soft law, not as complements in a progressive process of international legal development, but as antagonists, with soft-law pronouncements being used to undermine long-standing hard-law norms. In both cases, the result has been to obscure, rather than to clarify and elaborate, the most fundamental norms of the international legal system.

Keywords: hard law, soft law, progressive development of international law, fragmentation of international law, regime complexes, international law and politics, dispute settlement, prisoners dilemma

JEL Classification: F02, F10

Suggested Citation

Shaffer, Gregory and Pollack, Mark A., Hard Versus Soft Law in International Security (March 15, 2011). Boston College Law Review, Vol. 52, pp. 1147, 2011; Minnesota Legal Studies Research Paper No. 11-13. Available at SSRN: https://ssrn.com/abstract=1786836

Gregory Shaffer (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92612
United States

Mark Pollack

Temple University - Department of Political Science ( email )

461 Gladfelter Hall
Philadelphia, PA 19122
United States

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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