De-facto Binding Without De-jure Accountability: Soft Law as a Functional Substitute for Legal Obligation in Global Governance

Abstract

Soft-law instruments have become a central form of governance in international law. Formally non-binding, they increasingly produce effects comparable to legally binding norms. Pandemic declarations of the World Health Organization, conditionality mechanisms of European Union enlargement policy, and instruments of hybrid diplomacy display a shared pattern — political steering through communication, signalling, and economic pressure without corresponding legal accountability. The thesis: soft law is no longer merely supplementing binding international law — it increasingly functions as a substitute. International actors deliberately avoid formal legal thresholds, maximising regulatory effect while minimising legal responsibility, judicial review, and procedural transparency. The resulting accountability gap undermines core principles of international law, including legal certainty, attribution, and the rule of law in global governance. Through a comparative doctrinal analysis of pandemic governance, EU conditionality, and hybrid influence strategies, the article identifies common structural features of contemporary soft-law practice and develops criteria for identifying de-facto binding acts. Reform proposals aim at restoring accountability without removing the functional advantages of soft law.