By Louis Gagnon (Rome, Italy)
The Food and Agriculture Organization of the United Nations (FAO) is the specialized agency of the UN concerned with the eradication of hunger, the elimination of poverty and the sustainable management of natural resources for present and future generations. As part of its mandate, FAO facilitates the development and implementation of normative and standard-setting instruments, such as international agreements, codes of conduct, technical standards and others. In recent decades, Member States of FAO have regularly resorted to soft law instruments to pursue this objective.
What is “soft law”?
Although legal writers have yet to agree on a common definition of “soft law” and its application in international relations, there is no denying that international actors have increasingly resorted to this type of norm-setting instruments in recent decades. In general, soft law refers to international instruments, which are not binding treaties, even if they purport to establish norms of general application. These non-binding, or voluntary, instruments are typically referred to as guidelines, principles, codes of conduct, etc., and are often adopted by international organizations active in the economic, social and environmental fields. They can also serve as a first step in a “confidence-building” phase, allowing the parties to surmise their respective appetite for adopting norms that may eventually be binding upon them. The expanding use of soft law as a means to promulgate norms of a non-binding nature can be explained through its comparative advantages. Whereas creating “hard law” by treaty can be costly and time-consuming, soft law can produce similar benefits at a lower cost in terms of time and money. The main advantage of soft law, particularly in multilateral fora, remains its faculty to establish a body of norms of universal acceptance in a field of activity often bereft of international control. Over time, States that have adhered to such norms on a voluntary basis will develop relationships with a network of other States Parties and may induce them into commitments that could not have been envisaged at the outset. This reality is in fact well understood by parties adhering to soft law instruments. Indeed, it is striking to observe that, in practice, Member State delegations negotiating soft law instruments do so with great attention to wording, which suggests that States understand the political significance of these norms, if not their propensity to become hard law at a later stage.
Three examples of soft law achievements at FAO
• The Code of Conduct for Responsible Fisheries, adopted by the FAO Conference in 1995, promotes the long-term conservation and sustainable use of fisheries resources and serves as a reference framework for national and international efforts, to be interpreted and applied in conformity with international law. Although compliance with the Code’s principles is voluntary, certain parts of it are based on rules of international law, notably those found in the United Nations Convention on the Law of the Sea. An essential objective of the Code is to “serve as an instrument of reference to help States to establish or to improve the legal and institutional framework required for the exercise of responsible fisheries” and provide guidance to be used “in the formulation and implementation of international agreements and other legal instruments, both binding and voluntary”. These excerpts from Article 2 of the Code underline its “aspirational” nature and illustrate how soft law at the international level can serve as a precursor for the adoption of hard law provisions, nationally or internationally. Although FAO is in no position to enforce this voluntary instrument, the Code incorporates concrete measures illustrating how the principles enunciated therein could be implemented. Over time, thanks to the advocacy work of FAO, States have engaged with mechanisms and processes that often led to significant changes of national laws and policies.
• The FAO Council adopted another prominent soft law instrument in 2004. The Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security is a good example of a soft law instrument used as a vehicle to facilitate the implementation of rights recognized in treaty law. The right to food itself stems from Article 11(1) of the International Covenant on Economic Social and Cultural Rights, which reads as follows:
“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”
The obligations of States Parties to the Covenant are stated under Article 2(1):
“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
It is thus for each State, depending on its internal legal system, to advise on the best methods to transpose at the national level the rights recognized by the Covenant and guaranteed by treaty law. The objective of these Voluntary Guidelines is to provide practical guidance to States in their implementation of the progressive realization of the right to adequate food. They cover the full range of actions that may be considered by governments at the national level to build an appropriate environment for people to feed themselves.
In 2014, FAO published a ten-year retrospective highlighting the progression achieved since the adoption of these Voluntary Guidelines. By then, at least 28 States had explicitly promulgated the right to food in their constitution, and 40 States had implicitly recognized it, through broader measures such as the protection of an adequate standard of living. Other countries had enacted food security framework law that supports and recognizes the progressive realization of the right to food.
• The Principles for Responsible Investment in Agriculture and Food Systems were adopted in October 2014 by the Committee on World Food Security (CFS), an intergovernmental body reporting to the UN General Assembly and the FAO Conference. Here again, these principles are voluntary and non-binding. Their objective is to promote responsible investment in agriculture and food systems that contribute to food security and nutrition, thereby supporting the progressive realization of the right to adequate food in the context of national food security. The principles are global in scope and are meant to be interpreted and applied in harmony with existing obligations under national and international law. Being principles, they are of general application and serve as minimal guidelines to be used by stakeholders concerned with investment in agriculture and food systems. With regards for other voluntary guidelines promulgated by FAO, the normative framework provided by these principles allows the stakeholders (may they be States, institutions providing financing, smallholders, civil society organizations, etc.) to pursue investments in a responsible manner to promote food security and nutrition. Over time, it is expected that these practices will coalesce and become hard law at the national and international level.
It is safe to say that soft law will continue to expand at the international level, particularly through the contribution of leading universal international organizations that bring together States facing different stages of economic development. Soft law instruments are often adopted by the primary organs of these international bodies on a consensual basis, those organs implicitly carrying the endorsement of the entire membership. However “soft” they may be, these instruments remain law in many aspects and constitute as such, a potent vector of human development.
