Comparing the legitimacy and effectiveness of global hard and soft law: An analytical framework

Abstract

The international norms that are developed as tools of global governance can be placed on a continuum from traditional “hard law” treaties to the vaguest and voluntary “soft law.” In this article we develop an analytical framework for comparing norms on different positions along the continuum, thus for comparing international hard and soft law. We root the framework in both the rationalist and the constructivist paradigms of international relations by focusing on two overarching evaluative criteria: effectiveness and legitimacy. These broad concepts are divided into smaller building blocks encompassing mechanisms through which norms can exert influence; for example, by changing material incentives, identities, and building capacity, and by contributing to building source‐based, procedural, and substantive legitimacy. We illustrate the applicability of the framework with three norm processes of varying degrees of “softness” in global climate governance.

The Globally Harmonized System of Classification and Labelling of Chemicals—Explaining the Legal Implementation Gap

“…As noted above, the international agreement to implement GHS does not fall within the legally binding (hard law) norm category. However, while there are claims that legally binding norms have more influence on state behavior-i.e., a higher degree of implementation, uptake and actual enforcement [34,35]-the basic mechanisms through which international soft law can have influence are largely the same as for hard law [32]. One reason for this is that the option of material sanctions (economic or military) is seldom used to induce compliance with international hard law.…”

“…Raustiala [31] summarizes the explanatory theories into three categories: rationalist, norm-driven and liberal theories. Another categorization is between theories considering that states primarily behave within a framework of consequences and theories and according to a logic of appropriateness [32]. While these theories are often posed as alternative explanations, they can be approached as plausible complementary explanations [33].…”

Exposure Limit Values for Nanomaterials—Capacity and Willingness of Users to Apply a Precautionary Approach

“…The topics of the interviews covered the issues of the requirements of rule compliance according to the analytical framework that has been developed in regulatory governance studies to get insight into effectiveness issues of soft-regulation that is established to comply with legal obligations. (29)(30)(31)(32)(33)(34)(35) Governance studies suggest that the successful use of soft regulation in the case of the NRVs depends first on the preconditions of appropriate and easily available measurement strategies at low cost, as well as on adequate information supply about nanomaterials used in products, and their possible release during intended use.…”

Off limits. The effectiveness of age limits in reducing underage sales

“…Furthermore, it is important that the party who must comply is able to follow the rules and is able and willing to comply (Howard-Pitney, Johnson, Altman, Hopkins, & Hammond, 1991;Griffiths, 1999Griffiths, , 2003Havinga, 2006;Karlsson-Vinkhuyzen & Vihma 2009). However, at this point it is unknown whether and in what way these concepts also apply to the subject of age limits.…”

“…Three conditions are important: the people who must comply should have sufficient knowledge of the rules and should be able and willing to comply with the rules (Griffiths, 1999(Griffiths, , 2003Havinga, 2006;Karlsson-Vinkhuyzen & Vihma 2009). First, the regulated parties must know and understand the rules.…”