International Soft Law in the Era of De-globalization

 

He Zhipeng （Jilin University）

 

Abstract:This essay tries to explore whether soft law may have a good function in the era of de-globalization and whether it can improve the quality of international law and the applicability of international law in the context of the de-globalization.This means that multinational treaties and international organizations will shrink fundamentally.This article raised some examples of de-globalization and described the phenomena of de-globalization as the main actors in international relations try to adopt measures to stop or slow down the steps of globalization and try to make a higher threshold for market access, so as to create barriers for capitals,goods,and services from other states.Therefore,the trend of de-globalization means that more and more states will adopt their unilateral domestic legislative measures,and then they will not actively participate in multilateral legislation process,so the international organizations and international mechanism will have less and less influences.

With this being the background of the discussion of soft international law,this essay began to provide the forms of international soft law.In this non-exhausted list,they are:1) International political declaration by more than two states,most of them are from the United Nations,and some of them are from international conferences.2) The advice and resolutions of inter-government organizations which by their legal nature are not binding.3) Code of conduct,in the name of technical requirements and model laws.Sometimes some inter-governmental organizations and non-government organization created and passed some international code of conduct,by their nature are quite technical and most actors in this field will observe this kind of rules.Based on this list,soft laws are actually a type of international rules through which the international society tries to set up some standard; however,they do not really have a view of enforcement,or there’s no entitlement of enforcement or there is no such an organization or institution to enforce it.

Thereafter,this essay tried to analyze why soft law may appear and exist in international rule of law.The first reason is that states encounter more and more difficulties in the process of international law-making.Since the will and interest of states vary substantially,it is very hard to reach an agreement.So,the cost of international legislation is very high.At the same time,the efficiency of adopted multilateral international treaties and international customs are very low.There could be many states participating in the negotiation of a treaty. But after the document is open for signature,the states who have the intention to sign this document could be very few,and even fewer states may finally ratify this document.Such a situation resulted in the treaty may never come into force or may only be accepted by a very small number of states.For customary international law,at least two requirements are necessary:the first is the material requirement called general practice. It is not easy for a party to prove that a certain rule meets this requirement since the length of time,the continuity,and the numbers of stakeholders are not agreed upon.The second is the psychological requirement named opinio juris. This is even more difficult to control because if one state expressed its objection and denied the legal nature or legal effect of that rule from the very beginning. This rule will not apply to that state, and this is the very famous “persistent objector” principle.This hardness for international hard law is actually the background of the booming of international soft law.The second reason is that the network of international governance has been steadily set up.Such a network is mainly composed by states,transnational corporations,inter-government organizations,and non-government organizations.This network not only requires formal international law,but also welcomes informal international rules.Hence the network provides a very good environment or the creation and development of international soft law.

Concerning the functions of international soft law,it is not hard to find out from international practices that soft laws play a very important role and will be welcome in global governance.Firstly,international soft laws may help the making of international hard law.That is to say,soft law will be the basis of international legislation.The international society may establish some non-binding rules at the preliminary stage and then make them complimentary and up-graded in international treaties and customs.In other cases,soft laws may provide evidence for customary international law. Secondly,international soft law will push forward the spirit of international governance.Soft laws mainly exists in the fields which are comparatively soft in international relations such as environment,economics,and human rights.In these fields soft law will demonstrate consensus among international society.And then, soft law created some soft responsibility or soft obligations for international actors.Even if the soft law documents are not binding,some states and multi-national corporations would still observe those rules to show their conformity with a spirit of international government so as to establish their leading role in international civilization.When they have created such a image,their soft powers will be improved.

Concerning the status of international soft law in the list of international law sources,it is notable that some scholars still do not recognize soft law as a right word.Because in their mind,there could be laws and non-laws,all laws should be binding and non-laws are not binding.So the idea of hard laws and soft laws are unreasonable.This doctrinal understanding is too rigid or even misleading because we must face with the diversity of international legal life.Although there are some fields,rules are quite explicit on whether permitting or prohibiting certain activities in domestic and international governance today. There are virtually a very wide range of issues for which rules are not very clear.On these issues,it may be described as a gray area.And soft law actually matters in these gray areas to lead actors to behave in the right way or more welcome way.Based on this judgment,soft laws should be in the category of law instead of being out of the list.Among them they played a more active role in international rule of law and thus definitely a indispensable part of international law.To put soft law into the category of international law sources,it is necessary to re-examine the list in the Statute of International Court of Justice.In the list provided in article 38 paragraph 1 of this Statute,treaties,customary international law,general principles of law are enumerated as primary sources,and judicial decisions as well as the teachings of international jurists are enumerated as secondary sources.It’s not an exclusive list due to the long history of the Statute and the rapid change in international law.The statute goes behind the development of international legal practices and there are potential entries have the possibility to be added list in the Statute.Moreover,if the list is examined by a strict principle,the entries are not very logical put.Therefore,soft laws not only can constitute a part of international law sources,but also will push forward the extension of international law.This fact will definitely contribute to the process of global governance,especially in the age of de-globalization.

 

Key words:reverse globalization; international soft law; sources of international law