In the rich scholarship on and practice of hard and soft laws in the international order, hard law (specifically legally-binding treaties) is often perceived more favourably than soft, non-binding legal instruments, given the former’s precise wording and enforceable obligations compared with the latter’s aspirational remit and assumed transitional status towards hard law. Preference for hard law persists despite soft law’s prolific usage. There is, however, a distinct change in the international legal order. In the Global North, soft law’s utility is increasingly recognized in (1) facilitating cooperation amid unpredictable geopolitical international relations and (2) managing emerging issues such as climate change and global health. The third phenomenon is much less recognized – soft legal instruments may no longer be the ‘poor relative’ expected to ‘harden’ into treaties before being taken seriously. There is growing acceptance that they can remain non-binding and useful. This shift could be attributed to greater Global South participation in international law-making, notably the Asia-Pacific, given its longstanding soft law preferences.
In exploring this intriguing transformation in international law-making and its significance to the world order, this essay presents classic views of why hard law is preferred to soft law, then traces the Global North’s countervailing acceptance of soft law, and lastly emphasizes soft law’s mainstay in the Asia-Pacific and how these Global South actors broaden soft law’s influence in contemporary issues. This essay does not claim that soft law is displacing hard law. Instead, it builds on existing soft and hard law-making theories and highlights that this welcome, if overdue, recognition of soft law’s credibility not only bridges the longstanding disconnect between the proliferation of soft law usage and the simultaneous (if implicit) disdain for its non-bindingness, but it also heralds greater plurality of and respect for international law voices and issues.
1. Traditional preferences for hard law over soft law
One of the early scholarly admonitions against soft law was Prosper Weil’s warning against the unwelcome rise of ‘relative normativity in international law’ that veered towards being ‘non-law’. (Weil, 1983) On the other side of the Atlantic, Jan Klabbers critiqued soft law’s ‘redundancy’ and ‘undesirability’ (Klabbers, 1996, 1998), while Jean d’Aspremont lamented that soft law’s expansion could be a ‘self-serving quest for new legal materials’ (d’Aspremont, 2008). Such perspectives led Kenneth Abbott and Duncan Snidal to advocate that ‘soft law is valuable on its own’; cautioning that if seen ‘only as an interim step toward harder and therefore more satisfactory legalization’, the ‘implication is that soft law… is a failure’. (Abbott & Snidal, 2000, 422–3, 456)
This has played out in practice. Discourses or organizations that predominantly use soft law and eschew judicial institutions have been seen as ‘less effective’. For instance, international environmental law with its sizable body of soft legal instruments has struggled with compliance. Additionally, Tan Hsien-Li has investigated how Global South organizations in the Asia-Pacific, such as the Association of Southeast Asian Nations (ASEAN) and the Pacific Islands Forum (PIF), that use soft law to regulate regional relations, are viewed as weak. (Tan, 2019) Fortunately, the international community’s growing regard for soft law is reflected in scholarship from both the Global North and Global South in the past decade, with scholars articulating progressive trends and calling for more attention to soft law’s development.
2. Global North shifts: Calls to respect soft law
The need to take soft law seriously was highlighted in Timothy Meyer’s examination of how global politics influences states’ adoption of hard law or soft law. (Meyer, 2016) Meyer noted that the Global North’s relative stability and the issue predictability during the Cold War and Its immediate aftermath of globalization and multilateral institution-building facilitated hard law usage. In today’s geopolitical power shifts with Global South countries such as Brazil, China, India, and Russia rising vis-à-vis the US, states eschew mutually-binding obligations. Moreover, common issues concerning international financial regulations, greenhouse gas emissions and climate change, and global health are constantly evolving, resulting in a greater soft law usage. (pp. 162–3, 184–5)
More recently, Curtis Bradley, Jack Goldsmith, and Oona Hathaway conducted an empirical study on nonbinding international instruments adopted by the US. They note that, apart from states, international organizations such as the Organization of American States and Council of Europe are increasing their use of such instruments, and the United Nations International Law Commission has since 2024 begun studying the impact of soft laws. Given soft law’s strengthening trajectory, they criticize ‘the prevailing focus in teaching, scholarship, and regulation on binding international agreements… [being] the most important and consequential ones in international relations’ as ‘misleading to the point of being false.’ (Bradley, Goldsmith, & Hathaway 2023, 1283)
Regarding the US, the authors note that domestic political constraints spur the use of nonbinding instruments. For example, where Congress or Senate approval is unlikely and making a binding executive agreement is unconstitutional, the president may then make a nonbinding instrument to govern important issues. The subject matter covered by soft law is expansive – covering finance, trade, investment, environment, energy; defence; technology, and non-proliferation – there is thus a need to examine its effects more seriously. The authors propose oversight, transparency, and accountability mechanisms to scrutinize soft law and analysis of domestic impacts. They note that the EU is already examining executive and legislative participation and notification and public transparency when making nonbinding instruments. (pp. 1281–5, 1315, 1331–8) Soft law’s notable reach and consequences necessitate greater respect for it.
3. Global South progress: Asia-Pacific’s improved usage of soft law in multilateral cooperation
In the Asia-Pacific, soft law is well-regarded and has been used extensively by organizations such as ASEAN, PIF, and the Shanghai Cooperation Organization. Admittedly, the lacklustre regionalization by these Global South organizations in the past has undermined the present perception of how they use soft law. As Miles Kahler and Peter Katzenstein observed in the early 2000s, Asia-Pacific regionalization was ineffective because they resisted centralizing functions and dispute settlement mechanisms. The view that Asia-Pacific soft law arrangements are ineffective is thankfully waning. Contemporary efforts via regional organizations or in agenda-driven multilateral arrangements such as climate change, digital trade, and economic cooperation are productive. Correspondingly, scholars are emphasizing how Asia-Pacific actors are contributing to the international law-making discourse, especially through soft law.
One seminal example may be seen following ASEAN’s adoption of its 2007 constituent Charter. As Tan Hsien-Li has conceptualized, ASEAN regionalizes through a sovereignty-centric, soft law-dominant, and intergovernmental modality termed ‘Concordance Legalization’. (Tan, 2022) ‘Concordance’ refers to ASEAN’s extreme intergovernmentalism that demands consensus in every area of cooperation, while ‘legalization’ highlights ASEAN’s soft law-dominant modality (even as it adopts treaties for fundamental norms such as renouncing the use of force). ASEAN’s Concordance legalization model contrasts with the intergovernmental United States Mexico Canada Agreement model and the supranational EU model that rely on hard law. However, as ASEAN values intraregional amicability – to the extent that members avoid conflict even when legal instruments are breached – ASEAN’s soft laws (often in the form of declarations and blueprints) is the preeminent instrument of choice to operationalize their diverse goals ranging security and defence to resource-intensive socio-economic developmental ambitions. (pp. 342–5, 358)
To implement ASEAN’s soft laws and minimize cheating, frequent engagement and monitoring are the key means of enforcement. There is a robust hierarchy of intergovernmental and centralized institutions staffed by officials from member states’ governments and the ASEAN secretariat who meet frequently to discuss work-in-progress. The Secretary-General’s and Secretariat’s oversight competences have strengthened through using the World Bank’s Monitoring and Evaluation Framework. The accountability demanded by the ‘more than 1,500 meetings’ annually and monitoring protocols facilitates transparency, prevents cheating, and enforces integration. (pp. 370, 375) Notably, members increasingly accept that such ‘surveillance’ does not violate their sovereignty. Instead, effective implementation protects their interests, enabling them to enjoy integration outcomes.
In the inevitable event of breach, dispute resolution is often negotiatory. Naturally, for soft law violations, there is no recourse to litigation. Even for treaty disputes, Concordance legalization respects that ASEAN states may eschew regional arbitral panels because they fear, inter alia, diminished control in adjudicatory outcomes, escalating regional tensions give litigation’s adversarial nature, or the considerable technical and financial resources needed for legal proceedings. Consequently, ASEAN dispute settlement mechanisms often include negotiation and conciliation, even as arbitration remains an option. While negotiatory solutions may seem more susceptible to power imbalances between parties, ASEAN members prefer them for the autonomy they afford. Executed in good faith, soft law is a genuine vector of regional integration and international cooperation. ASEAN’s way of operating may illumine the Asia-Pacific and elsewhere in the Global South where similar sovereignty, intergovernmental, and soft law preferences exist. (p. 358)
A second seminal example is reflected in Alison Duxbury’s critique that the law of international organizations overlooks ‘organizations outside Europe and the United Nations system’ and a more inclusive discourse is needed. (Duxbury 2024) Focusing on Asia Pacific organizations, Duxbury emphasizes that their preference for soft law and the absence of permanent adjudicatory bodies does not undermine their legal authority or effectiveness. Instead, it corresponds to what Bederman observed about the presence of ‘communities’ when international persons make international laws through ‘relatively informal’ ways. Giving two examples from the Pacific, Duxbury highlights how the non-binding Pacific Islands Forum Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise (2021) has sealed a ‘compact’ among PIF members that maritime boundaries settled according to the UN Convention on the Law of the Sea should not be reviewed after being lodged with the UN Secretary-General. The second example concerns the importance of substance over legal form. Duxbury emphasizes that the Secretariat of the Pacific Regional Environment Programme’s soft laws – particularly, the Cleaner Pacific 2025: Pacific Regional Waste and Pollution Management Strategy 2016–2025 (CP2025) and the Pacific Regional Action Plan: Marine Litter 2018–2025 – use language that indicates commitment implementation. For instance, the CP2025 states that members ‘shall develop and enforce national policies… and legislation and strengthen institutional arrangements’ to manage waste, chemicals and pollutants. (pp. 8–19)
Two common observations can be drawn from Duxbury’s and Tan’s studies – Asia Pacific actors do not expect these instruments to harden into treaty law to be effective, implementation continues in soft law form. Moreover, their desire for amicability and cohesion motivates the continued use of soft law instruments to cooperate. This is not without drawbacks, but it does not detract from the fact that these soft law instruments are not viewed as ‘second best’ alternatives and that they are intended to guide and change state behaviour.
4. Global South innovation in international law-making
Global South Asia-Pacific soft law preferences are evincing a nascent spread. In coding digital trade provisions in instruments concluded between 2019 and 2023, Emily Jones, Beatriz Kira, and Rutendo Tavengerwei observe that soft law usage has crept into trade law – a domain that traditionally uses hard law – because of Singapore’s emergence as a norm entrepreneur in digital trade instruments. (Jones, Kira, & Tavengerwei, 2024, 210) This novel development is because Singapore (an ASEAN member identifying as part of the Global South) has elected to innovate and shape global norms in substance and form so that smaller players can better navigate the existing global digital trade frameworks set by the ‘three digital superpowers’ – the US, China, and the EU. Summarily, the US favours innovation and market access for its large technology companies; China, the manufacturing powerhouse, focuses on e-commerce and trade in goods; while the EU prioritizes data protection. Substantial innovation to create a more inclusive space among these three divergent agendas is seen in the recent wave of ‘Singapore-led’ digital trade instruments, namely, the Digital Economic Partnership Agreement (DEPA, 2020) between Chile, New Zealand, and Singapore, the Singapore-Australia Digital Economic Agreement (SADEA, 2020), and the United Kingdom-Singapore Digital Economic Agreement (UKSDEA, 2022). (pp. 219–22)
Substance-wise, the Singapore-led digital trade instruments unsurprisingly cover data flows, source code protection, and encryption – provisions common in Global North-led agreements. However, they also expand the scope in twelve areas, including digital identities, e-invoicing and e-payment, and online safety. Interestingly, even as the other parts of the instrument are in hard law form, these provisions are couched as soft law, expressing the members’ broad intent to cooperate and are silent on specific actions or omissions regarding implementation. The authors note that soft law usage is deliberate for these fast-evolving areas and reflects the members’ variances in domestic digital regulation. (pp. 213–19, 222–4)
The Singapore-led norm entrepreneurship on using soft law for digital trade regulation of new issues would be hollow without support. Without overstating its influence, Singapore has had some success in norm socialization, even if these norms are not yet accepted throughout the international community. For example, Korea has acceded to DEPA and there are seven membership applications from, interalia, China, Canada, and Ukraine. The authors observe Singapore’s innovations have influenced instruments to which it is not party, namely, the New Zealand-UK and the Australia-UK free trade agreements, with Australia and the UK appearing to promulgate these digital trade norms. The authors also note inroads at the multilateral level of the WTO Joint Statement Initiative on E-commerce (comprising 90 members ‘covering 90% of global trade’). Here, text and substance on issues such as e-payments ‘emulates that found in DEPA… [suggesting] a growing degree of acceptance of aspects of Singapore’s approach’. Support for Singapore’s approach seems to come from states that “capitalize on being ‘digital hubs’ and spur rulemaking [to overcome] gaps in the digital economy”. (pp. 210, 222) As seen, soft law carves out a vital space for smaller players to advance alternative approaches in a fast-moving arena dominated by digital superpowers.
Conclusion
The increased awareness and wide usage of soft law is welcome and critical progress. It fosters greater respect not only for soft law throughout the international community but also promotes inclusivity of smaller Global South players in international law-making. The phenomenon of the Singapore-led digital trade law innovation is a seminal example. At the regional level, this could also pave the way for ASEAN, PIF, and other Global South organizations that have a longstanding practice of ‘permanent’ soft laws that rarely harden into treaty to be recognized for their own effective regional integration pathway. There is currently heightened research interest in soft law – the Soft Law in International Law workshop convened by the British Institute of International and Comparative Law and the Society of Legal Scholars in March 2025 is one example among others. As the international legal order now undergoes profound change, such exploration of soft law, its subjects, and its actors is greatly welcomed to pave the way for a more plural arena.
Very topical piece! One other question we can ask ourselves is what is "hard" & what is "soft" law, which is expecially relevant in the context of the law of international organisations.
No Longer Hard Law’s ‘Poor Relative’: The Growing Respect for Soft, Non-Binding Legal Instruments in the International Order
Written by Tan Hsien-LiIn the rich scholarship on and practice of hard and soft laws in the international order, hard law (specifically legally-binding treaties) is often perceived more favourably than soft, non-binding legal instruments, given the former’s precise wording and enforceable obligations compared with the latter’s aspirational remit and assumed transitional status towards hard law. Preference for hard law persists despite soft law’s prolific usage. There is, however, a distinct change in the international legal order. In the Global North, soft law’s utility is increasingly recognized in (1) facilitating cooperation amid unpredictable geopolitical international relations and (2) managing emerging issues such as climate change and global health. The third phenomenon is much less recognized – soft legal instruments may no longer be the ‘poor relative’ expected to ‘harden’ into treaties before being taken seriously. There is growing acceptance that they can remain non-binding and useful. This shift could be attributed to greater Global South participation in international law-making, notably the Asia-Pacific, given its longstanding soft law preferences.
In exploring this intriguing transformation in international law-making and its significance to the world order, this essay presents classic views of why hard law is preferred to soft law, then traces the Global North’s countervailing acceptance of soft law, and lastly emphasizes soft law’s mainstay in the Asia-Pacific and how these Global South actors broaden soft law’s influence in contemporary issues. This essay does not claim that soft law is displacing hard law. Instead, it builds on existing soft and hard law-making theories and highlights that this welcome, if overdue, recognition of soft law’s credibility not only bridges the longstanding disconnect between the proliferation of soft law usage and the simultaneous (if implicit) disdain for its non-bindingness, but it also heralds greater plurality of and respect for international law voices and issues.
1. Traditional preferences for hard law over soft law
One of the early scholarly admonitions against soft law was Prosper Weil’s warning against the unwelcome rise of ‘relative normativity in international law’ that veered towards being ‘non-law’. (Weil, 1983) On the other side of the Atlantic, Jan Klabbers critiqued soft law’s ‘redundancy’ and ‘undesirability’ (Klabbers, 1996, 1998), while Jean d’Aspremont lamented that soft law’s expansion could be a ‘self-serving quest for new legal materials’ (d’Aspremont, 2008). Such perspectives led Kenneth Abbott and Duncan Snidal to advocate that ‘soft law is valuable on its own’; cautioning that if seen ‘only as an interim step toward harder and therefore more satisfactory legalization’, the ‘implication is that soft law… is a failure’. (Abbott & Snidal, 2000, 422–3, 456)
This has played out in practice. Discourses or organizations that predominantly use soft law and eschew judicial institutions have been seen as ‘less effective’. For instance, international environmental law with its sizable body of soft legal instruments has struggled with compliance. Additionally, Tan Hsien-Li has investigated how Global South organizations in the Asia-Pacific, such as the Association of Southeast Asian Nations (ASEAN) and the Pacific Islands Forum (PIF), that use soft law to regulate regional relations, are viewed as weak. (Tan, 2019) Fortunately, the international community’s growing regard for soft law is reflected in scholarship from both the Global North and Global South in the past decade, with scholars articulating progressive trends and calling for more attention to soft law’s development.
2. Global North shifts: Calls to respect soft law
The need to take soft law seriously was highlighted in Timothy Meyer’s examination of how global politics influences states’ adoption of hard law or soft law. (Meyer, 2016) Meyer noted that the Global North’s relative stability and the issue predictability during the Cold War and Its immediate aftermath of globalization and multilateral institution-building facilitated hard law usage. In today’s geopolitical power shifts with Global South countries such as Brazil, China, India, and Russia rising vis-à-vis the US, states eschew mutually-binding obligations. Moreover, common issues concerning international financial regulations, greenhouse gas emissions and climate change, and global health are constantly evolving, resulting in a greater soft law usage. (pp. 162–3, 184–5)
More recently, Curtis Bradley, Jack Goldsmith, and Oona Hathaway conducted an empirical study on nonbinding international instruments adopted by the US. They note that, apart from states, international organizations such as the Organization of American States and Council of Europe are increasing their use of such instruments, and the United Nations International Law Commission has since 2024 begun studying the impact of soft laws. Given soft law’s strengthening trajectory, they criticize ‘the prevailing focus in teaching, scholarship, and regulation on binding international agreements… [being] the most important and consequential ones in international relations’ as ‘misleading to the point of being false.’ (Bradley, Goldsmith, & Hathaway 2023, 1283)
Regarding the US, the authors note that domestic political constraints spur the use of nonbinding instruments. For example, where Congress or Senate approval is unlikely and making a binding executive agreement is unconstitutional, the president may then make a nonbinding instrument to govern important issues. The subject matter covered by soft law is expansive – covering finance, trade, investment, environment, energy; defence; technology, and non-proliferation – there is thus a need to examine its effects more seriously. The authors propose oversight, transparency, and accountability mechanisms to scrutinize soft law and analysis of domestic impacts. They note that the EU is already examining executive and legislative participation and notification and public transparency when making nonbinding instruments. (pp. 1281–5, 1315, 1331–8) Soft law’s notable reach and consequences necessitate greater respect for it.
3. Global South progress: Asia-Pacific’s improved usage of soft law in multilateral cooperation
In the Asia-Pacific, soft law is well-regarded and has been used extensively by organizations such as ASEAN, PIF, and the Shanghai Cooperation Organization. Admittedly, the lacklustre regionalization by these Global South organizations in the past has undermined the present perception of how they use soft law. As Miles Kahler and Peter Katzenstein observed in the early 2000s, Asia-Pacific regionalization was ineffective because they resisted centralizing functions and dispute settlement mechanisms. The view that Asia-Pacific soft law arrangements are ineffective is thankfully waning. Contemporary efforts via regional organizations or in agenda-driven multilateral arrangements such as climate change, digital trade, and economic cooperation are productive. Correspondingly, scholars are emphasizing how Asia-Pacific actors are contributing to the international law-making discourse, especially through soft law.
One seminal example may be seen following ASEAN’s adoption of its 2007 constituent Charter. As Tan Hsien-Li has conceptualized, ASEAN regionalizes through a sovereignty-centric, soft law-dominant, and intergovernmental modality termed ‘Concordance Legalization’. (Tan, 2022) ‘Concordance’ refers to ASEAN’s extreme intergovernmentalism that demands consensus in every area of cooperation, while ‘legalization’ highlights ASEAN’s soft law-dominant modality (even as it adopts treaties for fundamental norms such as renouncing the use of force). ASEAN’s Concordance legalization model contrasts with the intergovernmental United States Mexico Canada Agreement model and the supranational EU model that rely on hard law. However, as ASEAN values intraregional amicability – to the extent that members avoid conflict even when legal instruments are breached – ASEAN’s soft laws (often in the form of declarations and blueprints) is the preeminent instrument of choice to operationalize their diverse goals ranging security and defence to resource-intensive socio-economic developmental ambitions. (pp. 342–5, 358)
To implement ASEAN’s soft laws and minimize cheating, frequent engagement and monitoring are the key means of enforcement. There is a robust hierarchy of intergovernmental and centralized institutions staffed by officials from member states’ governments and the ASEAN secretariat who meet frequently to discuss work-in-progress. The Secretary-General’s and Secretariat’s oversight competences have strengthened through using the World Bank’s Monitoring and Evaluation Framework. The accountability demanded by the ‘more than 1,500 meetings’ annually and monitoring protocols facilitates transparency, prevents cheating, and enforces integration. (pp. 370, 375) Notably, members increasingly accept that such ‘surveillance’ does not violate their sovereignty. Instead, effective implementation protects their interests, enabling them to enjoy integration outcomes.
In the inevitable event of breach, dispute resolution is often negotiatory. Naturally, for soft law violations, there is no recourse to litigation. Even for treaty disputes, Concordance legalization respects that ASEAN states may eschew regional arbitral panels because they fear, inter alia, diminished control in adjudicatory outcomes, escalating regional tensions give litigation’s adversarial nature, or the considerable technical and financial resources needed for legal proceedings. Consequently, ASEAN dispute settlement mechanisms often include negotiation and conciliation, even as arbitration remains an option. While negotiatory solutions may seem more susceptible to power imbalances between parties, ASEAN members prefer them for the autonomy they afford. Executed in good faith, soft law is a genuine vector of regional integration and international cooperation. ASEAN’s way of operating may illumine the Asia-Pacific and elsewhere in the Global South where similar sovereignty, intergovernmental, and soft law preferences exist. (p. 358)
A second seminal example is reflected in Alison Duxbury’s critique that the law of international organizations overlooks ‘organizations outside Europe and the United Nations system’ and a more inclusive discourse is needed. (Duxbury 2024) Focusing on Asia Pacific organizations, Duxbury emphasizes that their preference for soft law and the absence of permanent adjudicatory bodies does not undermine their legal authority or effectiveness. Instead, it corresponds to what Bederman observed about the presence of ‘communities’ when international persons make international laws through ‘relatively informal’ ways. Giving two examples from the Pacific, Duxbury highlights how the non-binding Pacific Islands Forum Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise (2021) has sealed a ‘compact’ among PIF members that maritime boundaries settled according to the UN Convention on the Law of the Sea should not be reviewed after being lodged with the UN Secretary-General. The second example concerns the importance of substance over legal form. Duxbury emphasizes that the Secretariat of the Pacific Regional Environment Programme’s soft laws – particularly, the Cleaner Pacific 2025: Pacific Regional Waste and Pollution Management Strategy 2016–2025 (CP2025) and the Pacific Regional Action Plan: Marine Litter 2018–2025 – use language that indicates commitment implementation. For instance, the CP2025 states that members ‘shall develop and enforce national policies… and legislation and strengthen institutional arrangements’ to manage waste, chemicals and pollutants. (pp. 8–19)
Two common observations can be drawn from Duxbury’s and Tan’s studies – Asia Pacific actors do not expect these instruments to harden into treaty law to be effective, implementation continues in soft law form. Moreover, their desire for amicability and cohesion motivates the continued use of soft law instruments to cooperate. This is not without drawbacks, but it does not detract from the fact that these soft law instruments are not viewed as ‘second best’ alternatives and that they are intended to guide and change state behaviour.
4. Global South innovation in international law-making
The Global South Asia-Pacific preference for soft law is not limited to regional integration. Since the 2020s, they have reinforced external relations with Global North partners via soft law instruments such as the ASEAN-Australia Comprehensive Strategic Partnership (2021) and the ASEAN-US Comprehensive Strategic Partnership (2022). Interestingly, the US concomitantly adopted the soft legal Indo-Pacific Economic Framework for Prosperity (2022) with 13 Asia-Pacific partners.
Global South Asia-Pacific soft law preferences are evincing a nascent spread. In coding digital trade provisions in instruments concluded between 2019 and 2023, Emily Jones, Beatriz Kira, and Rutendo Tavengerwei observe that soft law usage has crept into trade law – a domain that traditionally uses hard law – because of Singapore’s emergence as a norm entrepreneur in digital trade instruments. (Jones, Kira, & Tavengerwei, 2024, 210) This novel development is because Singapore (an ASEAN member identifying as part of the Global South) has elected to innovate and shape global norms in substance and form so that smaller players can better navigate the existing global digital trade frameworks set by the ‘three digital superpowers’ – the US, China, and the EU. Summarily, the US favours innovation and market access for its large technology companies; China, the manufacturing powerhouse, focuses on e-commerce and trade in goods; while the EU prioritizes data protection. Substantial innovation to create a more inclusive space among these three divergent agendas is seen in the recent wave of ‘Singapore-led’ digital trade instruments, namely, the Digital Economic Partnership Agreement (DEPA, 2020) between Chile, New Zealand, and Singapore, the Singapore-Australia Digital Economic Agreement (SADEA, 2020), and the United Kingdom-Singapore Digital Economic Agreement (UKSDEA, 2022). (pp. 219–22)
Substance-wise, the Singapore-led digital trade instruments unsurprisingly cover data flows, source code protection, and encryption – provisions common in Global North-led agreements. However, they also expand the scope in twelve areas, including digital identities, e-invoicing and e-payment, and online safety. Interestingly, even as the other parts of the instrument are in hard law form, these provisions are couched as soft law, expressing the members’ broad intent to cooperate and are silent on specific actions or omissions regarding implementation. The authors note that soft law usage is deliberate for these fast-evolving areas and reflects the members’ variances in domestic digital regulation. (pp. 213–19, 222–4)
The Singapore-led norm entrepreneurship on using soft law for digital trade regulation of new issues would be hollow without support. Without overstating its influence, Singapore has had some success in norm socialization, even if these norms are not yet accepted throughout the international community. For example, Korea has acceded to DEPA and there are seven membership applications from, inter alia, China, Canada, and Ukraine. The authors observe Singapore’s innovations have influenced instruments to which it is not party, namely, the New Zealand-UK and the Australia-UK free trade agreements, with Australia and the UK appearing to promulgate these digital trade norms. The authors also note inroads at the multilateral level of the WTO Joint Statement Initiative on E-commerce (comprising 90 members ‘covering 90% of global trade’). Here, text and substance on issues such as e-payments ‘emulates that found in DEPA… [suggesting] a growing degree of acceptance of aspects of Singapore’s approach’. Support for Singapore’s approach seems to come from states that “capitalize on being ‘digital hubs’ and spur rulemaking [to overcome] gaps in the digital economy”. (pp. 210, 222) As seen, soft law carves out a vital space for smaller players to advance alternative approaches in a fast-moving arena dominated by digital superpowers.
Conclusion
The increased awareness and wide usage of soft law is welcome and critical progress. It fosters greater respect not only for soft law throughout the international community but also promotes inclusivity of smaller Global South players in international law-making. The phenomenon of the Singapore-led digital trade law innovation is a seminal example. At the regional level, this could also pave the way for ASEAN, PIF, and other Global South organizations that have a longstanding practice of ‘permanent’ soft laws that rarely harden into treaty to be recognized for their own effective regional integration pathway. There is currently heightened research interest in soft law – the Soft Law in International Law workshop convened by the British Institute of International and Comparative Law and the Society of Legal Scholars in March 2025 is one example among others. As the international legal order now undergoes profound change, such exploration of soft law, its subjects, and its actors is greatly welcomed to pave the way for a more plural arena.
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Ielyzaveta Badanova says
June 9, 2025
Very topical piece! One other question we can ask ourselves is what is "hard" & what is "soft" law, which is expecially relevant in the context of the law of international organisations.