What binds the nations to each other in their bilateral, multilateral and international relations? Is it the legality, or some other factor? If it is legality, what is the source of it? Is it the international law? If yes, where is it to be found? What is its source? These questions, more often than not, recur continually. Another question that must be added to the list is what is the International Soft Law? The instant article will try to examine different aspects of the International Soft Law.
In comparison to the extant International Law, little has been written on the International Soft Law. Joseph Gold, Andrew Guzman, Timothy Meyer, Professor Dr Juqian Li, Ingrid Wuerth and Ilhami Alkan Olsson are some of the authors whose views are easily available on the internet. The material presented in this write-up is primarily taken from Ilham Alkan Olsson’s “Four Competing Approaches to International Soft Law” and Andrew T. Guzman and Timothy Meyer’s “International Soft Law”.
There is no definition of the ‘term International Soft Law’ as noted by Joseph Gold: ‘Almost as many definitions of soft law can be found as there are writers’. Even so, Francesco Francioni, attempted to define the International Soft Law by using the technique of exclusion: he stated that Soft Law are international norms and instruments that do not find mention as a source in the conventional sources of international law (as enumerated in Article 38 of the Statute of the International Court of Justice).
Nature and Origin
The nature of the International Soft Law is related to its origin. According to Ilhami Alkan Olsson, International Soft Law emerged as a ‘consequence of the structural shortcomings of public international law’. These structural shortcomings, according to him, related to ‘scope and actors’ of the international law, which witnessed expansion and new entrants. The possibility of states to exercise control over the content of international law has been diminishing with the advent of international organizations and non-state actors; this diminishing control coupled with multiplicity of lawmaking in international law have contributed to the rise of the International Soft Law, according to Ilhami. Alongside his observations, two factors must be reckoned as circumstances motivating the growth of the International Soft Law:
(a) Effect of Article 26 of the Vienna Convention on the Law of Treaties, 1969 (VCLT):
Article 26 of the VCLT codifies and enacts the axiom ‘Pacta Sunt Servanda’ (agreements must be kept). The binding effect of the said Article added a rigour in the international law, which needed to be renegotiated, and therefore, this rigour gave rise to the need to developing and acknowledging the International Soft Law.
(b) Enforceability of International Legal Obligations
Richard Reeve Baxter, former Professor of International Law at the University of Harvard, preferred to use the term ‘international agreement’ instead of the term ‘treaty’. He believed that norms of various degrees of cogency, persuasiveness and consensus were incorporated in agreements between the states, which did not create enforceable rights; therefore, it was apt to style the international commitments between the states as ‘agreements’ rather than as ‘treaties’. Thus, enforceability aspect of international law resulted in encouraging the evolution of the International Soft Law.
Ilhami Alkan presented four types of the International Soft Law. These types are:
a. ‘Treaty’ Soft Law
Ilhami’s definition of the ‘treaty soft law’ is: “It refers to treaty provisions that do not intend to create firm obligations despite their legally binding form and that are imprecise (in language) or flexible (in context), consequently lacking peremptory character.”
The examples of this type are: (1) development of framework under the United Nations Framework Convention on Climate Change (UNFCCC), which is not binding and aims at providing framework for future course of action; (2) the UN Covenant on Economic, Social and Cultural Rights, 1966; and the political treaties like (3) the 1974 Agreement on the Prevention of Nuclear War between the US and the Soviet Union.
b. ‘Non-Binding’ Soft Law
This type, according to Ilhami, is based on the contrast between ‘binding’ and ‘non-binding’ instruments.
Its examples include ‘informal arrangements’, such as tacit agreements, in which obligations and commitments are implied or inferred but not openly declared, and oral agreements, in which bargains are expressly stated but not documented, as well as joint declarations, final communiqués, statements and ministerial conferences.
c. Rejection of Soft Law
Traditional view of international law treats it in binary terms: obligations, according to Prosper Weil, are ‘neither soft law nor hard law: they are simply not law at all’. In contradistinction to this binary view, this type rejects the soft law, but does accord it moral value.
d. Non-State Soft Law
Professor Reisman of the Yale Law School characterized ‘non-state lawmaking’ modes as ‘privatization and democratization’ of international law. Due to proliferation of international organizations, this type might best explain the latest international trend of international law making through non-state entities.
Professor Andrew T. Guzman of Berkeley Law School in the US explored the reasons ensuring compliance of the International Soft Law by the states; he has offered four explanations to this effect, which are as under:
i. Soft Law as Coordinating Device
States, according to Professor Andrew, ‘may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance’. The purpose of such compliance is to ensure coordinated behaviour. As an example, the International Olympic Committee has been cited. The explanation is very simplistic and does not offer any predictive theory.
ii. Loss Avoidance Theory
In Professor Andrew’s words, it is elucidated thus: ‘Moving from soft law to hard law generates higher sanctions that both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of expected loss from the violations exceed the marginal benefits in terms of deterred violations.’ He has discussed the outcomes of choice made by states between soft and hard law in his article, which could further be researched to develop a calculus for decision-making in foreign and external affairs.
iii. Delegation Theory
Professor Andrew essayed it in the following words: ‘The delegation theory posits that under certain circumstances, soft law will be an effective way for states to control their uncertainty over the future desirability of legal rules adopted today. Soft law does this by increasing the feasibility of a market leadership process for amending legal rules, a process of amendment that can be more efficient than explicitly renegotiating international rules.’ He used the amendments in the Guidelines of the Nuclear Suppliers Group to allow India nuclear trade as an example of this explanation.
iv. International Common Law Theory (ICL)
It will be useful, once again, to quote Professor Andrew on the subject; he stated: ‘Unlike the prior two theories of soft law, and indeed much of the soft law discussed in the literature, which often (but not always) focuses on international agreements, ICL is the product of non-state actors, principally international tribunals and international organizations (IOs), with the authority to speak about international legal rules.’ As an example, he uses the Nicaragua vs. US case that was decided in 1986 by the International Court of Justice (ICJ), and no discussion on the right to collective self-defence in international law is complete without referring to it.
It may finally be noted that the theories explaining international soft law are not mutually exclusive, but have proclivity to complement each other.
Changing Face of International Law
The traditional view of international law is binary: law versus non-law. The Soft Law, in words of Dr. Juqian Li, is the changing new face of the international law; be that as it may, will this new face help the anti-globalization tendencies to keep the international legal order intact in the changing times that the world is experiencing nowadays?