Are The Promises Of Change Under Soft Governance Models Attainable? Insights From The European Union
BY MARIELY LÓPEZ-SANTANA
The gaps between legislation, compliance and implementation represent one of the most challenging aspects of policy making and policy change in domestic and international settings. Environmental reforms and discussions about the ability of international law to effect change in states are good examples, highlighting the issues of converting laws into public goods and/or commonly shared practices. To overcome compliance and implementation deficits, governments, international organizations and non-governmental actors have actively promoted the development and adoption of alternative, soft regulative instruments. They are often attached to collaborative arenas and participatory mechanisms in which governmental and non-governmental actors repeatedly interact to find common and individual solutions. The open, interactive and iterative nature of these instruments therefore seeks to increase the likelihood of compliance and/or implementation.
These governance models are often contrasted with traditional ‘top-down’ models of policy making and implementation, in which higher levels of government legislate and enforce legally binding legislation. Soft governance instruments relax the ‘command-and- control’ nature of legally binding instruments by developing soft law (i.e., non-binding regulations). The soft nature of these instruments raises many questions about their efficacy and their ability to drive change. Yet, many subscribe to the notion that they have practical effects, even if their legal bite has no ‘teeth.’ In this short piece, I address these issues by presenting evidence from my research on the influence of soft law in the member states of the European Union (EU).
SOFT LAW AS AN ALTERNATIVE MODE OF GOVERNANCE
Legal instruments to regulate the behavior of international and domestic actors come in multiple shapes and forms. Nevertheless, scholars tend to categorize law as hard or soft based on whether an instrument binds actors or nations to these rules. In scenarios in which legally binding rules prevail, member states have a legal duty to comply with and implement domestic or international rules. When states cannot comply with hard law, organizations provide sanctions and coercive instruments to threaten or punish disobedient actors. In these scenarios, higher levels of government or international organizations, mainly the Courts, act as an interpreter and enforcer of the law.
In the late 1980s, different international institutions, such as the United Nations, the EU and the Organization for Economic Cooperation and Development, initiated a search for alternative modes of regulation and other possible modes of governance. They turned to the use of common guidelines, indicators, targets, benchmarking, sharing of best practice and/or peer reviews to softly regulate various policy areas. These instruments were seen as an appropriate solution when: 1) conditions to create uniform policies were unlikely because one-size fits all solutions are not politically feasible nor normatively desirable (Falkner et al. 2005), 2) when the issue at hand challenged states’ sovereignty, and 3) there was uncertainty about a common way to solve a problem. Non-binding agreements can thus represent a legal and institutional solution to avoid reform blockage by actors that are hesitant to cede power (Zeitlin and Trubek 2003). In many cases, such as in the EU, the choice of modes of governance based on voluntary implementation was partially grounded in the idea that policy making and decision-making needed to be brought closer to citizens and those implementing them. By opening up these spaces to a variety of actors, including non-governmental actors and lower levels of government, soft law attempts to increase legitimacy, democracy and participation with the end of reducing democratic and implementation deficits. This means that policy making and implementation should occur in multilevel and horizontal settings to attempt to increase the likelihood of diffusing these policies to different actors and scenarios.
In the EU, many of the contemporary soft legal arrangements fall under the umbrella of the so-called ‘Open Method of Coordination’ (OMC). The OMC is based on interactive, iterative and cyclical benchmarking of national progress toward commonly agreed objectives. Since the late 1990s, the EU has used this method (better known as the Lisbon process) to softly regulate employment policy, social protection, gender equality and inclusion, pensions, immigration, education, culture and asylum and its use has also been suggested for health as well as environmental affairs. To illustrate my argument, in the following section, I will turn my attention to the case of employment policy, specifically to the ‘European Employment Strategy’ (EES). The EES is the first and most developed OMC process, launched in 1997 to promote member states’ reform of employment policies and welfare states.
THE POTENTIAL EFFECTS OF SOFT GOVERNANCE INSTRUMENTS: THE CASE OF THE EUROPEAN EMPLOYMENT STRATEGY
When assessing the effects of soft law on domestic settings we have to reconsider traditional models of policy change. These models are based on the assumption that there is a direct relationship between the creation of legislation and policy change. Based on my research findings on the EES, I argue that under soft law there is no direct relationship between the creation of non-binding regulations and statutory change. Rather, the influence of this process is marked in two ways. First, it shapes the initial stages of policy making (problem identification, agenda-setting, policy formulation). Second, it improves domestic coordination among levels of government, and potentially, between governmental and non-governmental actors. Soft law as a result sets standards and defines what policy-makers ought to consider good or bad policies. This is what I call the framing effect of soft law (López-Santana 2006). These instruments open a window of opportunities for policy change as it persuades domestic policy-makers to reflect on these soft prescriptions, constructing their policy prescriptions within the limits of these soft frameworks. In the same way, it pushes policy-makers to discard undesirable policies. When it comes to the second point, through the creation of new collaborative arenas and routines to fulfill their procedural obligations (e.g., pooling information, reporting, meeting and deliberating at the EU and domestic levels), policy-makers were able to improve domestic coordination patterns (López-Santana 2008, 2009). In sum, the EES expanded the courses of action available to policy-makers by providing information and opening new spaces for cooperation, while simultaneously restraining their options by framing good and bad policy.
All in all, I conclude that the influence of international mandates is not only dependent on coercion and sanctions, but also on particular formative elements which allows these instruments to be properly managed by policy-makers, even if their duties are ‘soft.’ Specifically, guidance (guidelines and individual recommendations), reporting, the promotion of domestic and international interaction, and repetition are key elements of the OMC that drive the internalization of soft law. But as stated elsewhere, the framing effect of soft law on member states has some limitations regarding the ability of organizations, such as the EU, to be able to reform ‘sticky’ institutions and policies in member states given that normative changes do not necessarily translate into effective policies and positive policy outputs (López-Santana 2006). I acknowledge that changes in the early stages of the policy making process do not guarantee successful outcomes, such as booming employment rates and growth, given that there is not a direct relationship between compliance, implementation, and policy effectiveness. As Shelton argues, “once international regulations [are] perceived as necessary and action has been taken, compliance is expected and necessary, but not always sufficient, for the norm to become effective” (2000: 17). Nevertheless, these failures are not necessarily related to the non-binding and non-coercive nature of soft law given that the availability of sanctions (hard law) does not necessarily lead to successful compliance, implementation and/or policy effectiveness. Hence, soft governance models are a promising tool for change, if they are effectively managed. This includes iterative and interactive mechanisms, especially in policy areas in which states are hesitant to cede power to a higher authority.
Mariely López-Santana (mlopezs1@gmu.edu) is Assistant Professor in the Department of Public and International Affairs at George Mason University (http://pia.gmu.edu).
REFERENCES
Chayes, A. and Chayes, A.H., 2003, “On Compliance,” International Organization 47 (Spring): 175-205.
Falkner, Gerda, Treib, Oliver, Hartlapp, Miriam, Leiber, Simone, 2005, Complying with Europe: EU Harmonisation and Soft Law in the Member States, Cambridge: Cambridge University Press.
López-Santana, Mariely, 2009, Soft Europeanization?: The Differential Influence of the European Employment Strategy in Belgium, Spain, and Sweden, in Heidenreich, M. and Zeitlin, J. (eds.) Changing European Welfare and Employment Regimes, EUI/Routledge Studies on the Political Economy of Welfare, Routledge.
López-Santana, Mariely, 2008, The Multilevel Governance of the European Employment Strategy, Paper delivered at the workshop “The OMC within the Lisbon strategy: Empirical assessments and theoretical implications”, Social Science Research Centre, Institute for European Integration Research,Vienna, Austria.
López-Santana, Mariely, 2006, The Domestic Implications of European soft law: framing and transmitting change in employment policy, Journal of European Public Policy, 13 (June): 481-499.
Zeitlin, Jonathan and Trubek, David M., 2003, Governing Work and Welfare in the New Economy: European and American Experiments, Oxford: Oxford University Press.
