The Role of Soft Law in Contemporary International Law-Making - Essay Example

The role of soft law in contemporary international law-making Introduction The given work is designed in order to analyze and evaluate the following statement “While ‘enlightened’ positivism retains the centrality of formal sources as the core of international legal discourse, it is more flexible, recognizes change in patters of state behaviour and wider methods of determining state consent and evidence of that consent” 1 . To implement the given study it is necessary to discuss the main sources of law and define if the soft law is able to regulate the relations effectively. Scientists define two major sources of international regulation: customary law and treaties. Treaty represents an agreement concluded by different countries and enforced by action. Soft Law is formed according to the state’s experience and pays much attention to the sense of obligation. Soft law in its turn represents the third source that appeared not very long ago. The top priority of this law is the protection of human rights, environmental protection and preservation of ethical principles2 . It is essential to note, that contemporary international legislation is both treaty and soft and the both sources efficiently function, resolve international controversies and regulate the relations between countries. Studying the literature in order to prepare the investigation it is possible to make a conclusion that the 20th century is characterized by essential development of the international legislation, and notwithstanding that treaties now is the main source, it is possible to say that both ethical principles and treaty are really efficient, can work together, and in addition, treaties can help create new principles in international legislation. It is still not known, what source is more efficient, but it is quite clear that treaty can’t and should not be more reliable that ethical principles which were generated by the society and accepted by it Studying the literature on the topic, one can I believe, that treaty, customary and soft law should function together and the choice depends on the case. Both soft and treaty law are very efficient in regulating international. Thus, taking into account that different sources of international law usually work together and are not taken separately, sometimes it is not possible to decide what source is more efficient. Therefore, the thorough investigation of the sources will be implemented in the given study3 . The study of International human rights The review of the most important legally recognized approaches in the Western states with a sceptical examination of basic strategies has been implemented by different investigator during many years. Moreover, as the investigation was extensive, the important legal drive is becoming somewhat out-of-date since its lawful insight was changed for regular lawful research or for modern strategies of legal research, including feminist issues, etc. Recently some of the scholastic followers of contemporary revival of legal pragmatism researched more cautiously their traditional approach in order to expand their investigation to involve the relationships, which represent the part of the record and controversies concerning human rights. According to Makau Mutua, “the human rights movement is marked by adamning metaphor and its grand narrative contains a subtext that depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other”4 . Catherine Powell also stated that: “nation-states which are geographically located in the West are culturally neutral” and that “Western states are therefore not susceptible to relativist behavior”5 . Nevertheless, Catherine adds: Taken collectively, these assumptions construct Western states as good actors and non-Western states as bad actors vis-à-vis human rights compliance, even while this construction does not necessarily square with the reality on the ground ... For decades, scholars have discredited the construction of non-Western countries as the culturally primitive “other,” which allowed the West to define a contrasting identity as rational and civilized—a device used in the service of colonialism and imperialism. Today’s selective invocation of “culture” and relativism to describe human rights noncompliance by non-Western countries, while noncompliance by Western countries is rationalized, recreates a West/Rest dichotomy that is preoccupied by an assumed default Western conception of human rights6 . Searching for the correct explanation, Anghie also reviewed the issue like other specialists in this area. He investigated the rule concerning the issues of healthy relationship and its regulation in independent states. In contrast, we can agree with Anghie stating that struggle portrayed in history is only just between self-governing states and those states, which are not independent, can’t be considered full-grown partner. Thus, Anghie argues: What passes now as the defining dilemma of the discipline, the problem of order among states, is a problem which, from the times of its origins, has been peculiar to the specificities of European history. And, further, that the extension and universalization of this European experience, which is achieved by transmuting it into the major theoretical problem of the discipline, has the effect of suppressing and subordinating other histories of international law and the peoples to whom it has applied. Within the axiomatic framework which decrees that European states are sovereign while non-European states are not, there is only one means of relating the history of the non-European world: it is a history of the incorporation of the peoples of Africa, Asia, the Americas, and the Pacific into an international law which is explicitly European, and yet, universal 7. Treaties or soft law – what is a more efficient tool? To begin with, it is essential to mention, that at times people specify the general global agreements on definite problems, as the application of forces between the countries. Can’t it be said, that these agreements are ethical principles, which are used in legal system worldwide? It is possible to state that these are the instances of the ethical principles usage, demonstrated in the behaviour, displayed by the countries autonomously from the treaty-founded contracts. Nevertheless, it is also essential to mention, that Soft law represents a theoretical composition of unspoken agreements, under which the countries act voluntarily. Taking this fact into account it is possible to assume that in some cases soft law can be even more effective than treaty: Soft law agreements are often defined, by opposition to treaties, as "non-binding instruments". This characterization is not entirely wrong but may be misleading because although soft law does not have per se binding effect, it is conceived to have such effect in the long term. This means that while treaties are actually binding (after ratification by states), soft law instruments are only potentially binding. Soft law is indeed conceived as the beginning of a gradual process in which further steps are needed to make of such agreements binding rules for states. It should be noted that if the binding effect were totally absent from such instruments, then they would not be "law" at all, because one of the main distinctions between "ethics" and "law" is precisely that law is made up of enforceable norms while ethics is not enforceable 8 . It is also important to remember that international legislation that as a scheme was created many years ago, and then turned into common international rule, was originally founded on the ethical principles, not on the multilateral treaties. The concepts of treaty rule became appropriate and could be used only afterward in the process globalization and the appearance of the necessity to decide on international problems by introduction of definite compulsory principles on the countries which participate international agreement-making. Therefore, treaties were accepted as the efficient tool to guarantee the duty implementation of the countries. Moreover, it is also important to remember that treaties represent the approach to making rules only for those countries, who sign the definite agreement. Therefore, Ruggie (1992) stated that the principles stated in the agreement are spread only to the participating countries that makes such law not common, but particular. Consequently, it is the inadequacy of the agreements that they are not general in contrast to soft law that should be here recognized as more efficient. Multilateral treaties as a definition were created as a sort of novelty in the global legislation. Actually, the International Law Commission stated, that treaty can become the common rule only in case if leading countries participate in it, because it is they who dictate the norms. Speaking about its effectiveness, it is a very controversial issue, because the treaty is usually binding and does not allow to change any item and choose different direction. Treaties’ effectiveness should be considered through the prism of their most efficient and important items, which managed to become the fundamental in the international legislation history. As an instance it is possible to present Briand-Kellog’s Pact of 1928 described by Drucker (1994)9. It prohibited war in all forms. This principle was presented in the multinational legislation for a long time, and the given Pact represented one of the most essential and influential treaties and turned into the new rule and introduced a great number of alterations to international ethical principles. This testifies that treaties are able to alter the ethical principles and the rules, which international legislation contains. However, this can’t be considered to be an evident that treaty is more effective than soft law. It is possible to assume that the ethical principles, which were used before the given pact was signed, functioned just as effectively and therefore we can’t state that treaties are more efficient tools: When declarations are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the declarations. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law. As some experts explain, declarations may catalyze the creation of customary law by expressing in normative terms certain principles whose general acceptance is already in the air (…) and thereby making it easier and more likely for states to conform their conduct to them10 . The effectiveness of the treaties should be paid special attention, if we talk about the acceptance of the treaties by every country, which participate in international relations. Certainly, every country has its own procedure of treaty acceptance: ‘It is the case for many states that such international agreements will not give rise to legal consequences within the state until a parliamentary approval has been gained. In other states such international commitments by the executive will be incorporated domestically if consistent with a Constitution: again a process with democratic credentials of a (limited) kind. Clearly the international convention manifests in its origins a process that has some connection with representative democracy, albeit of an indirect and highly diverse kind’. What efficiency can be talked here about, if the process of approval every so often needs too much time? Through time international treaties may simply lose their significant or undergo a great number of changes. Therefore, this example testify that ethical principles are more effective, because they can be used in any situation, at the same time as treaties can’t be applied in case if non-participating country is involved. In fact, it is a very complicated task to differentiate between the efficiency of ethical principles and principles of the agreement independently, because they usually applied together. Treaty and ethical principles represent two major sources of the global legislation, and treaty tends to turn into the international ethical principles, work together and is used depending on the case: The difficulties that arise from the coexistence of convention law and soft international law include the problem of the peremptory norm ‘trumping’ any convention-based agreement, as noted above. Another set of problems arises when the specific content of a soft obligation is held to coexist with a convention on the same issue: what might be called the problem of ‘double-dipping11 . Nevertheless, founding on the abovementioned, it is possible to come to the conclusion that the ethical principles are really more effective than the treaty. The following example will help prove that. The situation is connected with the case was about the Geneva Convention on the Continental Shelf 1958 described in Ruggie (1992)12. The main issue was the application of equidistance norm to Germany. Actually, the state did not sign one of the most important treaties – the Convention: Where the same continental shelf is adjacent to the territories of two adjacent states, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured 13 . In this particular case, it is easy to see that the norm of equidistance that is mentioned in this work represents the soft norm used if the several states are to solve the same problem. Here the treaty appears to be efficient, but it is efficient only for states who participate in it, but for others only soft law means. Therefore, the efficiency of treaties is often partial. This fact help understand that soft law is more efficient and ethical principles play more important role. Notwithstanding many scholars consider treaty to be more reliable, its effectiveness becomes doubtful if the conflict arises between the countries, which do not participate in it as this situation requires more flexible approach. Soft law agreements differ from treaties in that they do not require formal ratification by states and, therefore, can have a more direct and rapid influence on the practice of states than treaties. In this way, soft law may provide more immediate evidence of international support and consensus than a treaty whose impact may be heavily diluted by reservations and the need to wait for a ratification and entry into force.7 It should be stressed that the relatively short time that is needed to develop a Declaration is of great value in a domain characterized by rapid developments like that of biomedicine. It seems clear that the formulation of global responses to the challenges posed by science cannot wait until governments are able to conclude a treaty, which could take several years of negotiation14 . The importance for treaty and soft law to work together Discussing treaty’s efficiency, it is impossible not to make a conclusion that treaty is founded on ethical principles. Furthermore, it is proved that treaties contribute to creating these ethical principles and therefore the interconnection between the treaty and soft law is obvious. There are cases in practice, when in order to interpret the treaty correctly, the court had to turn to similar agreements concluded by other states. During this procedure soft principle that would help interpret different treaties was actually created. It also testifies that treat and soft law can’t work separately. Treaty works together with the soft law or use its principles in resolving different questions. Treaties are still considered to be very effective and reliable, however, their effectiveness is doubtful now: Multilateral treaties are more effective than bilateral treaties in codifying the international law; in negotiating multilateral treaties its parties often try to address the subject matter of the treaties as comprehensively as possible; but States negotiating these agreements often have different or conflicting interests, so the final multilateral document may not fully reflect the views and positions of all the States which negotiated it 15. It is not easy to state what source of international law is more effective, because the treaty sometimes plays the role of source for the soft law. Alternatively, and as it was already mentioned, ethical principles initially represented the foundation of international law and they always were effective for the states actively participating in international relations. The effectiveness of the treaty was recognized together with the need to bind the states to act in certain way and to follow certain principles. Nevertheless, nobody can state for sure that the countries-partners will act strictly in correspondence with the principles stated in the treaty. Now in the process of globalization it becomes very difficult to decide what source of international law is more efficient. Now treaties are becoming the main tools of regulation and are used to interpret all the main ethical principles which have been created and applied by people. Interpretation through treaties is easy, understandable and always available. Therefore, the ethical principles are still more efficient and treaty is needed to fix these principles and make the states follow them. Conclusion It is not easy to come to the right conclusion on the question, which of the sources, ethical principles or treaty can be considered as more effective tool to regulate international law. Moreover, it became clear that soft and treaty law can’t function separately and even affect each other, and it is not easy to state, which of the sources is more influential. The review of the most important legally recognized approaches in the Western states with a sceptical examination of basic strategies has been implemented by different investigator during many years. Moreover, as the investigation was extensive the important legal drive is becoming somewhat out-of-date since its lawful insight was changed for regular lawful research or for modern strategies of legal research, including feminist issues, etc. Recently some of the scholastic followers of contemporary revival of legal pragmatism researched more cautiously their traditional approach in order to expand their investigation to involve the relationships, which represent the part of the record and controversies concerning human rights16 Studying the literature on the topic, one can I believe, that treaty, customary and soft law should function together and the choice depends on the case. Both soft and treaty law are very efficient in regulating international. Thus, taking into account that different sources of international law usually work together and are not taken separately, sometimes it is not possible to decide what source is more efficient. Therefore, the thorough investigation of the sources will be implemented in the given study17 . Searching for the correct explanation, we also reviewed the issue like other specialists in this area. We investigated the rule concerning the issues of healthy relationship and its regulation in independent states. In contrast, we can agree with Anghie stating that struggle portrayed in history is only just between self-governing states and those states, which are not independent, can’t be considered full-grown partner. It is not easy to state what source of international law is more effective, because the treaty sometimes plays the role of source for the soft law. Alternatively, and as it was already mentioned, ethical principles initially represented the foundation of international law and they always were effective for the states actively participating in international relations. The effectiveness of the treaty was recognized together with the need to bind the states to act in certain way and to follow certain principles. Nevertheless, nobody can state for sure that the countries-partners will act strictly in correspondence with the principles stated in the treaty18. In this particular case, it is easy to see that the norm of equidistance that is mentioned in this work represents the soft norm used if the several states are to solve the same problem. Here the treaty appears to be efficient, but it is efficient only for states who participate in it, but for others only soft law means. Therefore, the efficiency of treaties is often partial. This fact help understand that soft law is more efficient and ethical principles play more important role. Notwithstanding many scholars consider treaty to be more reliable, its effectiveness becomes doubtful if the conflict arises between the countries, which do not participate in it as this situation requires more flexible approach. It is also important to remember that international legislation that as a scheme was created many years ago, and then turned into common international rule, was originally founded on the ethical principles, not on the multilateral treaties. The concepts of treaty rule became appropriate and could be used only afterward in the process globalization and the appearance of the necessity to decide on international problems by introduction of definite compulsory principles on the countries which participate international agreement-making. Therefore, treaties were accepted as the efficient tool to guarantee the duty implementation of the countries. At the same time, it is also important to remember that treaties represent the approach to making rules only for those countries, who sign the definite agreement. Alternatively, it is also obvious that treaties are more reliable because they impose different obligations and limitations, which are not to be changed. The most difficult is to get the agreement of all the participating states that is not always possible, because some of the treaty’s limitations contradict with some norms set in the particular country; besides, the process of accepting international treaties by the countries is full of a great number of problems and takes time that is valuable in this case because if it takes too long the treaty could be amended. International agreement is effective because it binds to act in certain way and fulfil obligations but there is no guarantee that these obligations would be fulfilled. Soft law instruments play an invaluable role in the development of universal norms in bioethics. They should not be underestimated by the fact that they do not create per se binding rules. They operate in a more indirect way, by persuasion, not by coercion. However, experience shows that they have a real influence on the practice of states, by encouraging them to implement the common standards proposed. In the long term, they may create binding norms, either by leading to a treaty or by being recognized as customary law. As a matter of fact, soft law agreements provide at present the only realistic means of dealing with bioethical issues at a global level19. If to analyze the international law taking into account the contemporary globalization’ purposes and necessities, it becomes clear, that the soft law, serving as the basis for international treaties is still more effective tool. Treaty is important only to fix the main principles, under which we act. The ethical principles are the foundation for resolving the issues arising between countries. These principles make treaties exist, so soft law can be recognized is really effective in regulating international relations. Bibliography Baxter, ‘Multilateral Treaties as Evidence of Soft International Law’, 1965, BYIL, Vol. 41, 275-285 Boyle, A &. Chinkin, C. The Making of International Law, Oxford University Press, 2007, 12 Cassesse, International Law, (2nd ed., 2005) North Sea Continental Shelf Cases, (ICJ Reports, 1969) Buckley, William F. "Who Was Right?." National Review 27 July 1984: 55.  Cummings, Scott L. "The Internationalization of Public Interest Law." Duke Law Journal 57.4 (2008): 891 Drucker, Peter F. "The Age of Social Transformation." The Atlantic Monthly Nov. 1994: 53+.  Dunn, Seth. "Seeking Agreement on International Climate Policymaking." USA Today (Society for the Advancement of Education) Jan. 2003: 52+.  "Environment, Economics and National Security." Issues in Science and TechnologySummer 1994: 41+.  " Administrative Procedure for Supervising and Enforcing EC Law: EC Treaty Articles 226 and 228." Law and Contemporary Problems 68.1 (2004): 135+.  Neuman, Gerald L. "Human Rights and Constitutional Rights: Harmony and Dissonance." Stanford Law Review 55.5 (2003): 1863+.  Ratner, Steven R. "International Law: The Trials of Global Norms." Foreign PolicySpring 1998: 65+. Powell, Catherine “Locating Culture, Identity, and Human Rights.” Columbia Human Rights Law Review 30, no. 2 (Spring): 1999: 201-224 Ruggie, ‘Multilateralism: The Anatomy of the Institution’, 1992, International Organization, Vol. 46, No.3, 344-349 Twining, Globalization and Legal Theory, (London, 2000) Read More