abstract:

As a new branch of academic field, international soft law has been deeply studied in international academic circles, while domestic soft law research is mainly based on domestic law research, and international soft law research is relatively backward, with few achievements. As a brand-new research field, international soft law or soft international law plays an increasingly important role in the theory and practice of international law, especially in international affairs related to global issues. Therefore, strengthening the study of international soft law is of great significance to the development of international law and even the adjustment of international strategy. Starting with the origin of the concept of international soft law, this paper mainly discusses the characteristics, connotation and extension of national soft law, and analyzes the role of international soft law in practice.

Keywords: international soft law; International law; International relations; affect

"Soft law", as a new subject field, has attracted the attention of the law circle for its unique practical effect of soft law. It should be said that the study of "soft law" at the level of domestic law has achieved positive results to some extent. Although soft law has not been really implemented in judicial practice, it plays a unique and positive role in legal concepts and concepts, and it is necessary to face up to the supplementary and practical functions of soft law. At the level of international law, the research on international soft law is relatively backward both at home and abroad. Based on the origin of the concept of international soft law, this paper mainly discusses the characteristics, connotation and extension of national soft law, and analyzes the role of international soft law in practice.

1 from "soft method"

The concept of "soft law" is imported. As a manifestation of law, soft law not only exists for a long time in all countries of the world, but also exists universally. Soft law was first applied in the field of international law, but with the advancement and development of globalization, the phenomenon of soft law has rapidly appeared in other fields, especially in the fields of protection, international disputes, intellectual property protection and so on. However, the concept of soft law is controversial in academic circles. The most typical and extensive is the definition of jurist Francis Snyder in 1990s. He believes that soft law is a code of conduct that is not legally binding in principle but has practical effects. China scholars, on the other hand, believe that soft law is actually a concept word, which is used to refer to many legal phenomena. These legal phenomena all have a common feature, that is, as a practical behavior rule that can restrain people's behavior, and the implementation of these behavior rules generally does not directly depend on the protection of state coercive power. There are also domestic jurists who divide the law into "hard law" and "soft law" according to the effectiveness of the law. Hard law refers to the formal system of legal norms; Compared with hard law, soft law can be summarized as a code of conduct with the same or similar legal binding force besides national law. Furthermore, soft law refers to those legal norms that may be incomplete in structure and can produce social effects without relying on state compulsory protection. Judging from the definition of domestic law and traditional law, soft law naturally does not belong to typical law, that is, national law. However, as far as its effectiveness is concerned, hard law is a hard constraint and soft law is a soft constraint. Both soft and hard constraints should be reflected by corresponding "responsibilities". However, the constraint of soft law does not need national coercive force (including mechanism) to ensure, but there are still other societies or mechanisms to promote its implementation. Therefore, the author still tends to classify soft law into a broad legal category.

From the perspective of international law, soft law is generally divided into two categories: one is called non-legal soft law and the other is called legal soft law.

The definition of the former is consistent with the view of most jurists in our country, that is, soft law is some principles that are neither strictly legally binding nor fundamentally invalid in the legal sense, but these rules may evolve into international practices.

The latter refers to the norms stipulated in the treaty but lacking the nature of obligation, which appear in some declarative treaties.

The definition of the former should be generally recognized by domestic soft law scholars, and both international and domestic academic circles have quite consistent views on the effectiveness and scope of soft law. As for the second phenomenon of soft law, some domestic scholars do not agree to define soft law as clauses and norms used to explain the lack of mandatory and clear obligations in treaties. This view holds that once a right, obligation or rule principle is stipulated in a treaty, it has the significance in international law, which is the most important sign that a treaty is different from other non-legal forms. In fact, Oppenheimer's "International Law" advocates that in order to explain the provisions of a treaty, the preamble is a part of the context of the treaty, and even the name of the treaty may indicate the spirit and meaning of the whole treaty. Therefore, there are only two judgments on the binding force of soft law on legal norms, either yes or no, and it will not be centered. Obviously, from the perspective of international law, the second state of soft law does not actually exist in the practice of international law. All clauses and even preambles appearing in treaties belong to the category of international treaties and the source of international law. Of course, it should be emphasized that the international law here is a general international hard legal system formed on the basis of international treaties or international customs.

2 "International soft law" concept connotation and extension

The first part discusses the main viewpoints of the academic circles on the definition of "soft law" from the international and domestic levels. International soft law is the extension and development of soft law in international law, and even the concept of soft law actually first appeared in the field of international law. The reason why the author emphasizes the difference between "domestic soft law" and "international soft law" is that the research on domestic soft law is basically in the direction of domestic law, and mainly in the direction of administrative law, which belongs to the category of domestic public law. Soft law and international soft law are both related and different in concept. Both belong to the category of soft law, and their connotations are basically the same. In extension, domestic soft law and international soft law are obviously two different fields.

Compared with the emergence of the concept of "international soft law", international law scholars put forward the view that international law can be divided into "international hard law" and "international soft law". International hard law is what we call international treaties and customary laws in international law in the traditional sense, which is legally binding on all subjects of international law; However, international soft law is not directly legally binding on the subject of international law, so it is often not regarded as the source of international law. Like "soft law", the concept of "international soft law" is still controversial, and there are mainly the following views in the field of international law:

(1) international soft law refers to the rules or principles that the international community tends to form but has not yet formed. This view attempts to understand international soft law as a gray area between white and black non-laws, and as a gray area, international soft law may strongly affect the white legal area. The main progress of this view lies in the recognition of the objective existence of soft law outside the legal and non-legal horizons and the existence of the actual influence of soft law. Legally speaking, soft law itself is not legally binding, but it can be transformed into legally binding normative documents through certain procedures. This view not only points out the existing state of international soft law, but also points out the development direction of international soft law.

(2) International soft law is a kind of rules and principles between so-called international hard law (such as international treaties and international customary law) and pure sexual commitment. Scholars who hold this view believe that international soft law refers to uncertain rules and principles that tend to form but have not yet formed, or urging or programmatic provisions. This is a problem between international hard law and pure political commitment. This definition seems to narrow the scope of international soft law, but the biggest deficiency of this view lies in how to define the difference between international soft law which is also not legally binding and pure political commitment.

(3) International soft law refers to the * * * reciprocity rule formed by various subjects in the international community on the basis of balancing interests in order to achieve a common goal. Although this view summarizes some characteristics of international soft law, it does not clarify the subject of international soft law, and even blurs the boundary between international soft law and international hard law. Because voluntary reciprocity norms can include both international hard law and international soft law. The author believes that although there is still controversy about the definition of international soft law in academic circles, the following understandings have basically been obtained: international soft law is not legally binding; Secondly, the object of international soft law is basically the same as the object of action; Thirdly, international soft law has played a legal role to a certain extent, and has a binding role in a non-legal sense, especially in the fields of international economic trade and international environmental protection. Therefore, the author believes that international soft law is a rule or principle with certain legal effect that the international community tends to form or has not yet fully formed. International law, which can be regarded as developing, should be classified into a broad legal category.

Just like the definition of the concept of international soft law, since Justice Menel of the International Court of Justice founded the concept of "soft law", the international community has been divided on the extension and attributes of international soft law. In view of the extension of international soft law, some scholars believe that those international norms and principles that are not included in the source of international law in Article 30, paragraph 1, of the Statute of the International Court of Justice belong to the category of international soft law. Because these norms and principles lack specific normative content, they cannot produce enforceable rights and obligations, but they can produce certain "legal effect". Some scholars directly equate international soft law with written documents containing rules of conduct, and think that international soft law is not legally binding, so it is not regulated by treaty law. Or equate international soft law with any international document that contains principles, norms, standards or other statements of expected behavior outside the treaty. The author thinks that this binary division of either or is inappropriate. When discussing the concept of international soft law, the author once pointed out that international soft law should be in a gray state between international hard law (that is, treaties, customary laws, etc.). ) and non-law, is a form of development of international law. Therefore, when defining the extension and attributes of international soft law, we should carefully analyze it. First of all, from the formal understanding, international treaties and international customary law belong to international hard law and are legally binding; In addition to hard law, whether some non-treaty agreements or political declarations that are not legally binding belong to the category of international soft law remains to be screened. The author thinks that the most important thing is whether it has certain binding effect or factual effect. Starting from this definition standard, we can bring a series of non-treaty agreements that can produce important legal effects, including resolutions, declarations, statements, norms or codes of conduct adopted by international organizations and multilateral diplomatic conferences, into the category of international soft law. Although there are great differences between these agreements and treaties, their contents are usually norms and principles that do not involve specific implementation. In addition, the author emphasizes that these agreed documents must have certain legal effect before they can be included in the scope of international soft law, because although international soft law is not directly legally binding, it is potentially non-legally binding and can achieve the same legal effect. It is precisely because of this special function of international soft law that some international law scholars even regard international soft law as the "third source" of international law.

What is the function of international soft law? First of all, international soft law has the effect of proving some existing international customs or norms. In reality, many international soft laws have been recognized by most countries in the world, reflecting the consistent national practice and legal beliefs of the international community. Therefore, these international soft laws can be used as evidence of the existence of international customs or norms of international law, and even evolved into customary international law in practice.

Second, international soft law is often cited by international judicial institutions in practice. Therefore, to a certain extent, it plays a supplementary and auxiliary role in international law. We know that the international community is constantly advancing and developing, and international law is relatively stable relative to the changes in reality, but it is also lagging behind, which can not adapt to the new situation and changes in the international community to a certain extent. If the international law is revised frequently, it will inevitably have a great impact on the effectiveness and authority of the law, while the international soft law is relatively flexible and can be adjusted and revised accordingly according to the changes of the international community. Therefore, in judicial practice, some international soft laws are often cited as a supplement to the existing international law system to prevent unreasonable and unfair phenomena caused by negligence of international law rules.

Thirdly, international soft law has mainly played the role of coordinating and compromising some international disputes, thus easing the tension in the region and creating conditions for peace and stability in the region. In modern international relations, the pursuit of national interests is still the main goal of national foreign relations. Therefore, on some regional issues, countries in the region often have frictions and even conflicts because of competing for national interests in the region. The most typical one is the Middle East, which has become one of the most unstable regions in international relations because of the competition for oil, water, territory and other resources or because of religious beliefs. In these areas where international relations are tense, international law with mandatory legal binding force often fails to play its role, or even backfires, worsening the regional situation. Therefore, the international soft law formed by international coordination and regional compromise can actually promote the peace process in this region.

Fourthly, international soft law has raised the global awareness of some international issues and aroused widespread concern in the international community. For example, in order to solve various international problems in the field of global environment and human rights, many international organizations or multilateral diplomatic conferences have formulated a series of international soft laws including declarations, norms and agreements. These international soft laws not only effectively regulate the international behavior of international organizations, countries or non-governmental organizations, but also make international issues in some fields attract extensive attention of the international community. Taking solving global warming as an example, a series of actions, such as the Copenhagen Climate Change Conference and the Cancun Conference in Mexico, were carried out under the agreed framework of international soft law. Coordinating and solving international problems through international soft law is gradually becoming one of the most distinctive features of this era.

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