This Article has been authored by Udit Bajpai, a student at NUSRL, Ranchi
When we talk about international law, a lot of questions come in our mind, regarding the implication, jurisdiction and consequences of their non-compliance. This concern rises because of the fact that we do not have an international judicial body whose jurisdiction applies on the whole world. Some may argue against this statement by pointing out the existence of the International Court of Justice, but that would not prove to be a valid counter argument, since, it is does not function similar to those of our domestic court, when placed into perspective, as in the matters concerned in International Court of Justice deals with contentions between the States which report to the organization and the issues pertaining to them globally. So, how do international laws justify their existence, without putting the whole concept of ‘Law’ under jeopardy, due to the absence of any sort of enforcement, what so ever? This is the sole reason why international law is often referred to as ‘Soft Law’.
Manifestation of Soft Law
When we dissect the word ‘soft law’, we find that the name itself implies its non-binding nature. This specification of soft law renders their importance of having guaranteed enforceability, moot. However, the idea of non-compliance and the definition of law seem to be contradictory, since the whole point of enacting laws is to maintain compliance. This is where the model of ‘Presumptive Reasoning’ comes in handy.
Model of Presumptive Reasoning
This model is based on the idea of either complying to a certain directive, and if not, then explaining the reason of non-compliance to the legitimate authority. For instance, in 1992, the United Nations General Assembly issued a directive, aiming the abolition of the practice of drift-net fishing worldwide, due to its harmful ecological impacts. Majority of the countries complied to the directive, but some countries in the Asia-Pacific region, did not. However, they had to provide valid justifications on their respective reasons of continuing the practice. This event shows the usefulness of soft laws.
If we rethink the aforementioned scenario, it would be natural to think that, what could possibly go bad, if the non-complying countries simply denied any justifications regarding their actions? Why would some party take the pains to justify something even after being aware of the absence of any kind of penal actions otherwise? Well, there is a very strong reason to do so. Whenever certain parties show non-compliance to some kinds of authoritative directives or mutual non-binding treaties, and fail to justify their acts, they open themselves up to criticism and furthermore, they invite hostile reactions. When North Korea violated The Treaty of Non-Proliferation of Nuclear Weapons, after conducting nuclear tests in 2006, it was heavily sanctioned by the UN member states. These sanctions were on such an extensive scale that it resulted in the plummet of international trade of the Asian nation by a whopping 98%. All that for violating a non-binding treaty.
It may seem to be a convincing argument that the repercussions of such a disproportionate level may be implied on a small nation like North Korea with very limited international reach, very easily, but it would not be true at all. This can be realized by the fact that The United States of America, which is a global superpower and a major player in world trade, pulled out of the 2016 Paris Treaty on Climate Change, which was, again, a non-binding treaty, or in other words, a soft law, just to avoid an inevitable act of breach on their part since a commitment to the terms of the treaty, according to the U.S. delegation, would deplete their economy which they couldn’t afford at the time. This signifies that the model of presumptive reasoning is so efficient, even the most powerful of the nations, try their best, not to break soft laws.
Soft laws and their model of presumptive reasoning manifest a very modest approach towards international and domestic legal systems. The liability of being answerable to an authority is itself a very useful and efficient tool for sustaining all international and various domestic soft laws such as codes of conduct, guidelines, roadmaps, peer reviews, etc. It is conclusive that there is some sense of responsibility which comes with accountability, even without a codified penal apprehension, and at a higher level, this accountability is monumental.