Soft Law: New Tools for Governing Emerging Technologies

Privacy and Security and Innovation and Economic Growth

Article Snapshot

Author(s)

Braden Allenby and Gary Marchant

Source

Bulletin of the Atomic Scientists, Vol. 73, No. 2, pp. 108-114, 2017

Summary

Traditionally, nations harmonized their own regulation of new technologies with the rules of other nations through negotiation of international treaties. "Soft law" tools such as private standards and codes of conduct are less resource-intensive than treaties.

Policy Relevance

Private standards and informal discussions among regulators offer an alternative to traditional regulation.

Main Points

  • Nations seek to harmonize the regulation of different technologies for many reasons, including:
     
    • To prevent nations from "free riding" on others’ sacrifices to achieve a common goal, such as addressing climate change;
       
    • To minimize trade disputes;
       
    • To protect against transboundary harms, such as the drift of air pollutants from one nation to another.
       
    • To allow regulators to share workload and avoid duplication of their efforts.
       
  • Nations will rarely be able to negotiate formal treaties to harmonize the regulatory treatment of new technologies with those of other nations; “soft law” arrangements offer an alternative.
     
  • The parties to a treaty governing cyberwarfare ought to include Russia, China, and the United States, but such a treaty would be hard to negotiate because of fundamental ideological and strategic differences.
     
  • Private organizations such as international standard-setting bodies create one type of soft law; for example, private international organizations provide international guidelines for safe handling of nanomaterials and guidelines for ethical stem cell research.
     
  • Transnational dialog between regulators makes up a second type of soft law; for example, a series of meetings between nanotechnology regulators from more than 20 nations encouraged common approaches to nanotechnology regulation.
     
  • Soft law rules are not legally binding, but they have other advantages.
     
    • Soft law is international in scope, and is not limited by jurisdictional concerns.
       
    • Soft law applies equally to states, private firms, and nongovernmental organizations.
       
    • Soft law is easy to modify as circumstances change.

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