"Soft Law"; The Nature and Existence of Soft Law in International Law: Real or Unreal(مقاله علمی وزارت علوم)
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The term "soft law" represents a comparatively recent conceptual development in international law, denoting rules and principles that are currently non-binding, inchoate, or predominantly politically motivated. The nature and extent of such norms are intrinsically shaped by political contexts and developments, which may appear to lie beyond the legal domain. Nevertheless, the term of soft law is not used in a vacuum devoid of a legal community and system; to do so would it strip of meaning and applicability. Instead, it is invoked in contexts where it has been scrutinized within the fabric of the international community and the international legal system. A pivotal issue in analyzing these norms is whether such a designation corresponds to a genuine legal category or is, in fact, illusory. In this article, we carefully examine this term, the context underpinning the proposal and establishment of such norms in international law, and assess it through the lens of general principles. We contend that the designation "soft" is inapposite and argue for its unreal character under certain conditions. The central thesis advanced herein is that no substantive distinction exists between "soft law" and "hard law"; rather, the rules and principles in question should be analyzed through modern insights and interpretive methods stemming from societal developments. Consequently, the use of dichotomous terms such as "soft" or "hard" - and the demarcation between rights and laws - becomes otiose, highlighting the significant role of general principles and their interplay with such norms. Although certain doctrinal approaches and schools (such as the New Haven School) have not engaged in the etymological and pathological analysis of this concept, they have nevertheless treated it as a component of a political governance system, resulting in a blurring of the precise boundary between law and politics.