The Fuzzy Governance of Soft Hard Law and Hard Soft Law

Abstract

The increasing prominence of unconventional, cross-border security threats posed by non-state actors is challenging traditional international diplomacy and its most cherished tool: international treaties. Policy-making circles and academia alike often deplore the fact that it is getting ever more difficult to reach international agreements that are legally binding and global in reach.

This talk challenges this appraisement on two fronts. For one, I will argue that legal bindingness in itself is a poor predictor of the effectiveness of an agreement’s ability to impact states' behavior. In fact, so-called "hard law" — i.e. legally binding agreements — often turns out to be "soft" in nature as a result of lacking precision and weak compliance mechanisms.

For the other, a number of recent non-binding agreements demonstrate that 'soft law" can actually be "hard" in the innovative ways they incorporate an impressive arsenal of tools to effectively expose and sanction non-compliance. This talk draws on cases from the security arena and beyond to highlight the true drivers of effective international cooperation.