A further alternative view on soft law focuses on where and how different types of instruments come into existence as well as on their content and style. Soft law is thereby generally seen as being more readily agreed on and entered into than hard law.307 The requirement of a signature and a
certain number of ratifications from states to become binding, as is for example the case with regard to the Oviedo Convention308, thereby certainly requires more of a state than merely
accepting a standard in that it asks a state to undertake a positive act to affirm a standard and in
304 Ibid. 305
T. Franck, "The Emerging Right to Democratic Governance", 100 American Journal of International Law, 1992, 88, 92, noting that "The freedom of states to bargain away short-term benefits in the expectation of longer-term rewards is kept aloft by the perception that law is not merely a coincidence of self-interest. That a state on the loosing end of a WTO arbitration today will comply because it can expect to win a subsequent dispute, and then justifiably expect the losing party to comply in deference to the ongoing practice of compliance. In this pattern of continuing interactions, compliance is almost always the rational choice, in every state's self-interest, because every state has a stake in actualizing the belief that the law, habitually, obligates compliance."
306 Hillgenberg notes that declarations and treaties are in fact complied with to largely the same extent. Hillgenberg,
note 216, 502.
307 Chinkin, note 220, 855.
that it opens the states' performance to public and often democratic scrutiny whereas no such requirements apply in, for example, the case of the UNESCO instruments. However, while the act of signing and opening up for ratification a document might rightly be said to raise the threshold of a state acceding to an agreement, at least in terms of effectiveness of the document such an act does not necessarily make a difference. First, as was the case with the Oviedo Convention, it might mean that fewer states actually commit to the provisions of the treaty. Secondly, the ratification process often draws out the time until a document becomes effective, whereas the Declaration became effective immediately.
Further, soft law also usually is said to be more prevalent in certain areas, such as environmental law, whereas hard law is seen to regulate 'important' areas, such as economics and trade. Since the area of bioethics is addressed by both types of standards that differentiation, however, does not seem to apply to this area of standard setting. In fact, the Oviedo Convention and the UDBHR are concerned with very similar topics. Merely few issues, such as organ transplantation or concerns for the environment are addressed within either the Convention or the UDBHR only.309 Given the
potential range of issues that could have been dealt with under the heading bioethics or
biomedicine, the number of similar topics addressed in both documents seems rather remarkable. A further contrast, so Boyle, is sometimes established between ”rules”, involving clear and
reasonably specific commitments which are supposed to be found in hard law provisions, and “norms” or “principles”, which, being more open-textured or general in their content and wording, are conventionally understood to be soft.310 However, quite besides the fact that the categories
“rules”, “principles” and “norms” are not easily demarcated, as they have hazy boarders and often considerably overlap311 both types of instruments in the area of bioethics seem to operate on the
same basis in that they are based on similar principles, which are generally seen to be more characteristic of soft law documents.312 Moreover, instruments of both the soft and hard law use
309 See Chapter IV, 2.1. and 2.2.
310 Boyle, note 216, 906. According to Richard Dworkin principles are distinct from rules. The latter are
applicable in an all-or-nothing fashion while principles operate in the dimension of weight and importance. R. Dworkin, "The Models of Rules", 35 University of Chicago Law Review, 1967, 12, 14; for a critique see J. Raz, "Legal Principles and the Limits of Law", 81 The Yale Law Journal, 1972, 823, 824 and J. Raz, The Authority of Law: Essays on Law and Morality, 1979, 14 et seq. For further discussion see Chapter VI, 3.3. below and see Vöneky, Recht, Moral und Ethik. Grundlagen und Grenzen Demokratischer Legitimation für Ethikgremien, note 15, Part I.
311
L. Alexander/K. Kress, "Against Legal Principles", in: A. Marmor (ed.), Law and Interpretation, 1995, 279, 280 et seq.; D. Kennedy, "Legal Formality", 2 Journal of Legal Studies, 1973, 351, 352. Malanczuk, note 204, 48; one example for such difficulties might be the distinction sometimes drawn between civil and political rights, often classified as rules as they involved "clear and reasonably specific" commitments and social and cultural rights which are often characterised as norms or principles given their open-textured or general character. The distinction has, however, often been shown to be misguided. See International Convenant on Economic, Social and Cultural Rights, E/C.12/1998/24, CESCR General Comment 9, 1998 (hereinafter CESCR General Comment 9).
312 Because of this weak wording it is even arguable that the Oviedo Convention, note 5, falls under the label soft law
since these "soft" undertakings are hardly normative and cannot be described as creating "rules" in any meaningful sense. That this is probably true of many treaties was recognised by the ICJ in the North Sea Continental Shelf Case when it specified that one of the conditions to be met before a treaty could be regarded as law-making is that it should
similar language and similar expressions, and strength of wording.313 And indeed, with the
exception of the provisions on informed consent314, overall the language of all instruments might
best be described as aspirational in that it speaks of overall goals and long term objectives rather than of strict rules and clear guidelines or of specific, detailed propositions.
Given the similarities between both types of standards in the area of bioethics it seems reasonable to assume that both should be able to give rise to the same type of discourse be that a legal or not legal one.