Soft Law: New Tools for Governing Emerging Technologies

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


Key Takeaways:
  • 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.



 Braden Allenby

About Braden Allenby

Braden R. Allenby is Lincoln Professor of Engineering and Ethics in the School of Sustainable Engineering and the Built Environment at Arizona State University. He is also Professor of Law and President's Professor of Civil, Environmental and Sustainable Engineering. His principal areas of teaching and research are design for environment; earth systems engineering and management; industrial ecology; technological evolution; and the convergence of nanotechnology, biotechnology, information and communication technology, and cognitive sciences.

Gary Marchant

About Gary Marchant

Gary Marchant is a Regent's Professor of Law and Director of the Center for Law, Science and Innovation at Arizona State University. His research interests include legal aspects of genomics and personalized medicine, the use of genetic information in environmental regulation, risk and the precautionary principle, and governance of emerging technologies such as nanotechnology, neuroscience, biotechnology, and artificial intelligence.