The Erosion of Law

(757) Roundcube Webmail :: PALACIO Monthly Commentary: The Erosion of Law

MADRID – In assessments of global events and trends in 2014, words like chaos, disorder, and fragmentation are likely to feature prominently. But the word “soft” should also appear. Indeed, 2014 was characterized by the continued rise of “soft” instruments to address global challenges: pledges, decrees, self-regulation, joint plans of action, and handshake deals. Are the days of organizing international relations according to traditional, formal law over?

To be sure, this shift toward “soft” law is also occurring in domestic contexts. In the United States, President Barack Obama used his executive power to sidestep Congress on immigration reform. At the supranational level, the new European Commission is pursuing its goal of “better regulation” using as little formal lawmaking as possible, focusing instead on recommendations, codes of conduct, and guidelines.

But the erosion of traditional law remains most pronounced in the international arena. The G-20’s decisions have become increasingly informal, while rule-making authority has been outsourced to private regulatory bodies, such as the Basel Committee and the International Accounting Standards Board.

Moreover, a growing number of arrangements are being introduced with little or no built-in enforcement. November’s much-celebrated climate agreement between Obama and Chinese President Xi Jinping, and the interim “joint plan of action” between Iran and its international interlocutors on the country’s nuclear program (essentially two unilateral statements linked by a press release), are but two recent examples.

Such agreements may be positive developments, but they are no substitute for official, enforceable international rules of conduct. And states, despite their reticence to be formally bound by preset terms, recognize this. From trade regulations and nuclear non-proliferation to climate action and maritime boundaries, there is a yearning for the clarity and certainty that only “hard” law can provide.

So what is preventing the international community from making firm rules? The protracted travails of the Doha Round of World Trade talks offer some clues.

One key problem is the rapid rise in the number of actors. It is simply more difficult for 193 states to reach agreement than it was for the original 51 signatories of the post-World War II conventions that established the contemporary international order.

This challenge is rooted in two developments: the post-colonial and post-Soviet proliferation of states, and the disaggregation and erosion of state sovereignty. Crafting agreements is no longer the job of only foreign ministers or heads of state; it now must involve civil society, experts, international organizations, and the private sector – each of which has its own agenda. This may enrich negotiations; but it also complicates and prolongs the process considerably.

In this context, ensuring that formal rule-making remains a viable option internationally will require some adjustments. One potential solution would be for regional representatives to be empowered to negotiate on behalf of groups of states. Another would be to work from treaties involving fewer actors to build broader agreements. In international trade, for example, mega-regional deals like the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership could serve as de facto standard setters, helping to facilitate a global agreement.

Likewise, a binding and enforceable deal on Iran’s nuclear program could encourage progress at this spring’s Non-Proliferation Treaty Review Conference toward instituting firm commitments to implement the action items agreed upon at the 2010 round – in particular, establishing a nuclear-weapons-free zone in the Middle East. Unless non-proliferation deals are infused with traditional legality, they will remain inadequate to achieve their goal of making the world a safer place.

This year will offer one more critical opportunity to reestablish hard legality in international negotiations: the United Nations Climate Change Conference in Paris in December. It is widely believed that the conference may well represent the world’s last chance to limit the global temperature increase to 2º Celsius over pre-industrial levels – the threshold beyond which the risks of climate change become particularly daunting.

To succeed, the Paris conference can look nothing like the disastrous meeting held in Copenhagen six years ago. And the negotiating parties must move beyond the soft “intended nationally determined contributions,” agreed to last month in Lima, to establish legally binding commitments.

Such a result would be a boon not just for efforts to limit climate change, but also for addressing other global challenges. A firm, enforceable climate-change deal would show that, as difficult as it is to reach a hard-law agreement nowadays, it is possible. Indeed, world leaders should not settle for less.

More flexible approaches to international negotiations may have facilitated “landmark” deals in 2014. But without strong compliance mechanisms, such agreements could amount to little. Finding ways to adapt formal legal processes to today’s complex global environment is a key challenge for 2015. World leaders need a success story to get them motivated.
Ana Palacio, a former Spanish foreign minister and former Senior Vice President of the World Bank, is a member of the Spanish Council of State and a visiting lecturer at Georgetown University.