From “soft law” to hard obligations

The research paper examines the 'hybrid environment' of the Belt and Road Initiative, where binding 'hard law' (treaties and contracts) operates alongside 'soft law' (MoUs and policy frameworks). It highlights the risk of 'creeping obligations' where non-binding commitments harden into commercial obligations and discusses the dual identity of Chinese state-owned enterprises (SOEs) as both commercial and sovereign actors. The author recommends that host countries strengthen domestic legal frameworks, reform outdated investment treaties, and explicitly clarify the legal status of SOEs in contracts to protect public interest regulation and avoid unexpected legal claims.

• The Belt and Road Initiative (BRI) utilizes a hybrid legal structure combining binding 'hard law'—such as investment treaties and contracts—with 'soft law' instruments like memoranda of understanding (MoUs) and policy guidance.
• Host countries face the risk of 'creeping obligations,' where early, non-binding political commitments in MoUs gradually evolve into binding commercial obligations, potentially committing governments to specific contractors or financing before feasibility studies are complete.
• Many investment treaties between China and BRI partners are 'old-generation' (some from the 1980s and 1990s) and may constrain a host state's ability to implement public interest regulations regarding climate, social, or economic policies.
• Chinese state-owned enterprises (SOEs) possess a dual identity, acting simultaneously as commercial profit-seekers, instruments of Chinese government strategic objectives, and diplomatic tools, which creates bargaining asymmetries and legal ambiguity regarding whether they are acting in a sovereign or commercial capacity.
• Lack of transparency in BRI contracts is exacerbated by 'silent clauses' that prohibit host countries from disclosing loan terms and 'No Paris Club' clauses that prevent the inclusion of specific debts in Paris Club restructuring.
• To mitigate legal exposure, host countries should implement inter-ministerial coordination committees, conduct pre-investment assessments before signing MoUs, and explicitly define the legal role of SOEs in project documents.

APA

Ostřanský,, S. U. N.-E. (2026). From “soft law” to hard obligations. International Institute for Sustainable Development. https://www.iisd.org/articles/deep-dive/belt-and-road-initiative-legal-architecture

Chicago

Ostřanský,, Stanley U. Nweke-Eze,Josef. From “soft law” to hard obligations. International Institute for Sustainable Development, 2026. https://www.iisd.org/articles/deep-dive/belt-and-road-initiative-legal-architecture.

Wikipedia

{{cite report |last1=Ostřanský, |first1=Stanley U. Nweke-Eze,Josef |title=From “soft law” to hard obligations |publisher=International Institute for Sustainable Development |date=7 May 2026 |url=https://www.iisd.org/articles/deep-dive/belt-and-road-initiative-legal-architecture |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{ostansk2026from, author = {Ostřanský,, Stanley U. Nweke-Eze,Josef}, title = {{From “soft law” to hard obligations}}, institution = {International Institute for Sustainable Development}, year = {2026}, month = may, url = {https://www.iisd.org/articles/deep-dive/belt-and-road-initiative-legal-architecture}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }