Soft Law, Authoritative Advice, and Nonbinding Agreements
25 Pages Posted: 15 May 2017 Last revised: 18 Jul 2017
Date Written: May 14, 2017
One of the most fascinating developments in the domain of international law in the last few decades is the astonishing proliferation of non-binding legal instruments, generally referred to as soft law. The forms and origins of various nonbinding legal instruments are quite varied, but what they have in common is the promulgation of norms, commitments, or directives, explicitly avoiding the imposition of legal obligations on the relevant parties. The legal status of soft law is debated in the literature, but my concern in this essay is different: I aim to provide an account of the rationale of soft law from the perspective of the practical reasons that can rationalize such instruments. The argument is focused on analyzing the idea of authoritative advice, suggesting that when authorities advise their putative subjects, they purport to give the subject what I call presumptive reasons for action. I explain here what presumptive reasons are and what their rationale is, suggesting it as a model for the practical reasons in play when soft law operates vertically, in cases of nonbinding directives of international authorities. Horizontal soft law, that normally comes in the form of international treaties, is also explained by employing the idea of presumptive reasons, coupled with the mutual accountability relations that such agreements invariably constitute.
Keywords: Soft Law, Nonbinding Legal Instruments, Nonbinding Treaties, Practical Authority, Authoritative Advice, Presumptive Reasons, International Authorities, Nonbinding Directives
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