Cornell Law Review Volume 99 Issue 4

Soft Law as Foreign Relations Law

The United States increasingly relies on “soft law” and, in particular,
on cooperation with foreign regulators to make domestic policy. The implementation
of soft law at home is typically understood to depend on administrative
law, as it is American agencies that implement the deals they conclude
with their foreign counterparts. But that understanding has led courts and
scholars to raise questions about whether soft law made abroad can possibly
meet the doctrinal requirements of the domestic discipline. This Article proposes
a new doctrinal understanding of soft law implementation. It argues
that, properly understood, soft law implementation lies at the intersection of
foreign relations law and administrative law. In light of the strong powers
accorded to the executive under foreign relations law, this new understanding
will strengthen the legitimacy and legality of soft law implementation
and make it less subject to judicial challenge. Understanding that soft law is
foreign relations law will further the domestic implementation of informal
international agreements in areas as different as conflict diamonds, international
financial regulation, and climate change.

 

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