Background paper for the Country-Led Initiative in Support of the UNFF “Scoping for a future agreement on forests”
Berlin, Germany 16-18 November 2005. 
by
Richard G. Tarasofsky
Head, Energy, Environment and Development Programme
Chatham House
Lauren Flejzor
PhD. Candidate, London School of Economics and Political Science
Executive Summary
This background paper aims to inform the discussions at the Country Led Initiative in Support of the UN Forum on Forests (UNFF) “Scoping for a future agreement on forests”, in Berlin, Germany, 16-18 November 2005. 

The paper surveys and analyses various non-binding “soft law” instruments in the international system, outside the forest sector, and confirms that, given an appropriate context and operational capabilities within a given sector, soft law can be an effective way to express an international consensus. The paper begins by setting forth the context in the UNFF where such instruments have been mooted.1  It then examines more deeply what is meant by “soft law”, and reveals its sometimes complex relationship to “hard law”.  A detailed examination of ten non-binding instruments then follows, to shed light on the general approach to developing such instruments (including the main motivations), their format, the types of responsibilities they set forth, the degree of detail they contain, and their measures to ensure effective implementation.  The paper ends with a consideration of some key lessons that have been learnt about these instruments and identifies a set of general factors that contribute to a non-binding instrument’s ultimate success. 

Background and Context: recent discussions at the UNFF
Some UNFF members have recently proposed developing new “soft law” for the forest sector.  In particular, it has been proposed that an instrument that is “not legally binding but requires member states to actively subscribe to it in order to demonstrate their political commitment”2 would be a useful step forward.  Such a voluntary code on sustainable forest management (“SFM”) could, inter alia, establish global goals for SFM; provide the basis for the formulation of national targets; be action oriented and focus on the implementation of agreed actions; provide guidance at the regional and national levels; and contain commitments to strengthen funding at the national and international levels.3
At UNFF-5, in May 2005, a number of proposals were tabled on the formation of a voluntary code. Views diverged on a range of issues, including the status and content of such an instrument, as well as its link to financing.  While UNFF-5 did not lead to concrete policy outcomes in May 2005, the final report included draft text on forming a voluntary code/guidelines/or international understanding on the “management, conservation and sustainable development of all types of forest”.4 Some elements of such an instrument were outlined in a draft terms of reference, concerning the purpose, process and topics to be included.
Box 1. Terms of Reference for developing a voluntary forest code/guidelines/international understanding5
Purpose: The purpose it to articulate international forest related agreements on the management, conservation and sustainable development of all types of sustainable forest management and to help achieve the goals decided upon at the fifth session of the UN Forum on Forests.
Process: The process of developing the voluntary code/guidelines/international understanding will be integrated into the future multi-year programme of work of the Forum.
Possible topics to be included: Title and purpose; reaffirmation of existing agreements; relationships with other international instruments; cooperation; implementation; monitoring and reporting; and provision for review.
The box above leaves open the possibility of including a range of modalities to achieve the four international goals provisionally agreed at UNFF-5.
What is “soft law” and is it useful?
The application of “soft law” instruments has become increasingly popular in the international policy community, especially in the last twenty years. “Soft law” instruments provide states with room to manoeuvre where there are conflicts over goals and standards.6 Thus, “soft law” may be a useful compromise in situations where an agreement is desired, but a legally binding one is difficult to achieve.
However, critics of soft law note that “hard law” is the only sure way to achieve set objectives and that non-binding – rather than legally binding – instruments are more difficult to implement.7 Tsamenyi et al note that a “key problem associated with voluntary instruments is their non-binding nature, which can and does significantly impede the effectiveness of the instruments due [to] the lack of legal force they carry”.8 Nonetheless, in some instances, soft law instruments have led to effective outcomes. Some experts go on to suggest the “distinction between hard law and soft law is less a dichotomy than a continuum, while maintaining the core, distinctive features of each”.9
There are a variety of titles for non-binding legal instruments: e.g. codes of conduct, guidelines, undertaking, and memoranda of understanding.  The title is not in itself the determinant of its legal or political weight.  Even if an instrument bears a title that is similar to non-legally binding instruments, it may ultimately be considered legally binding if its content so suggests. According to Article 2(1)(a) of the Vienna Convention on the Law of Treaties, a treaty is:
“an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”;
An example of this is in Qatar v. Bahrain, where the International Court of Justice ruled that signed minutes of a meeting were legally binding, having regard to the terms and the particular circumstances in which it was drawn up.10 On the other hand, not only is the OECD Arrangement on Export Credits intended to be non-binding, but it is clearly stated in the text that the instrument is only a “Gentleman’s Agreement”.
It may also be the case, however, that a non-legally binding instrument contains some binding elements.  For example, the Non-Legally Binding Authoritative Statement Of Principles For A Global Consensus On The Management, Conservation And Sustainable Development Of All Types Of Forests (UNCED Forest Principles) is expressly non-legally binding – according to its title.  Nonetheless, some elements in this instrument may reflect customary international law, such as Principle 1(a), 11 and therefore are legally binding. Such instruments may also reflect opinio juris, one of the constituent elements of customary international law.
In other cases, non-legally binding instruments contain provisions that also appear in treaties.  Thus, these provisions are legally binding on those states that are party to those treaties. In still other cases, treaties can “harden” provisions in non-binding instruments by obligating parties to implement the standards that they set out.12 There are also provisions in some treaties that allow for dispute settlement of non-binding norms.13 
Therefore, soft law is often not completely distinct from hard law and indeed, the relationship between the two in a given sector may be dynamic. 
Energy, Environment and Development Programme
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1 In this paper, the use of the term ‘instrument’ is meant to be generic, rather than prescriptive as to political or legal weight..
2 Informal Non-paper produced by the ‘Friends of Guadalajara’, “Towards the Future International Arrangement on Forests (IAF):  A Way Forward”, 26 April 2005, at 7.
3 Ibid.
4 United Nations on Forests, “Report of the Fifth Session: 14 May 2004 and 16 to 27 May 2005”, United Nations, Economic and Social Council, Official Records, 2005, Supplement No. 22, E/2005/42, E/CN.18/2005/18, at 9.
5 Ibid, at 10.
6 C.M Chinkin, “The Challenge of Soft Law: Development and Change in International Law”, 38 ICLQ (1989) 850-866, at 866.
7 Based on a personal interview conducted in October 2005.
8 M. Tsamenyi, L. Manarangi-Trott, and S. Rajkumar, “The International Legal Regime for Fisheries Management”, UNEP Workshop on Fisheries Subsidies and Sustainable Fisheries Management, International Environment House II, Geneva, 26-27 April 2004 , available at <http://www.unep.ch/etu/Fisheries%20Meeting/submittedPapers/MartinTsamenyiLaraManarangiTrottShilpaRajkumar.pdf>, at 17.
9 J. J. Kirton and M. J. Trebilcock (eds) Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance, Global Environmental Governance Series, Ashgate Publishing Limited, 2004, at 22.
10 See 1995 ICJ Reports 6, cited in See. C. Chinkin, “Normative Development in the International Legal System”, in D. Shelton (ed), Commitment and Compliance – The Role of Non-Binding Norms in the International Legal System, Oxford University Press, 2000.
11 E.g. Principle 1 (a):  States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction.
12 E.g. Articles 210-211 of the UN Convention on the Law of the Sea, which refers to standards in relation to ocean dumping and pollution from vessels. The WTO Agreement on Technical Barriers to Trade sets out presumptions of conformity based on voluntary international standards.  See, more generally, A.E. Boyle, “Soft Law in International Law Making” in M. D.Evans (ed) International Law (2nd edition), Oxford University Press, forthcoming in 2006..
13 E.g. Convention of 15 December 1992 on Conciliation and Arbitration within the Conference on Security and Cooperation in Europe.