How Soft Law Endangers the Positivist Character of Customary International Law?

Introduction

Customary international law, in general, involves the emulation and animation of customary principles, which are accepted by countries in the domain of public international law and global governance. Of course, there are persistent and subsequent objectors, which cause to even halt the germination of any customary international legal norm. At the same time, in the case of a peremptory norm or jus cogens, the question of persistent/subsequent objection would matter as zilch as possible. In simpler terms, the objector principles do not work when the peremptory norms of general international legal nature are in place. These norms are mostly found in the domain of international humanitarian law. For example, there are specific definitions of what constituted genocide, act of aggression, ethnic cleansing or any such term. However, considering the fourth industrial revolution and the decline of American liberalism, it is getting clearer that the role of a new concept in legal policy, soft law will shape the way customary international law, or anything in hard law would be designed to work. This article addresses the nature, content, and features of soft law, and further establishes as to how it endangers the positivist character of customary international law.

What is Soft Law?

In simple terms, soft law is not even a law. It is a softer component of applied law (with lesser pure law components) which is put into use in most-terms, bottom-top or horizontal modes of conveyance, hierarchically. Self-regulation and AI Ethics are the most common forms of soft laws, which are designed by both, state and non-state actors in their own ways possible. Let us understand this concept by the use of examples.

Self-regulation means that any X system can create rules, guidelines, and regulations, which apply correspondingly to them within their domain of action. For example, any guidelines made by Facebook on hate speech, are applicable within Facebook’s specific domain of users (consumers), and so within the organization as the guidelines may be based upon. Companies turn to the practices of self-regulation (sometimes in groups or in individual formations), in order to achieve their strategic and tactical goals, economically, politically or through other means. However, there are issues when even companies’ self-regulations are designed to intrude into the domains of public and private laws. For example, any social media technology company, which states through communication in an ordinary course of nature that it is committed to elements of public good (for example, SOS Emergency activities, donations during COVID-19 pandemic, humanitarian support, public advocacy, etc.,) and even beyond communication, participates in the same, leads the effort in any way possible either through algorithmic coverage of any post or campaign (whether through itself or by letting the user(s) do it), enters into the public law domain. Entering into the public domain has been regularly interpreted by courts under the concept of public duty. They can influence the private legal domain in some ways or the other too. Of course, companies indulge in various dispute resolution mechanisms. That necessarily is not a way of enabling self-regulation. However, companies as corporate personalities can together indirectly, act as mere ‘groups’ to agree on certain rules and undertakings of a particular legal, economic or any development. For example, it is widely known that in the case of Joe Rogan, a podcaster, Spotify did not follow the US cancel culture trend of the political progressives and post-modernists, and did a billion dollar deal with the person. However, Coca Cola gave in to the political pressure built on them and then, even other US Corporations and firms started funding such post-modernist programmes and propaganda-centric utilities alongside. This, in any way – even if it is an example from politics, shows clearly that soft law does affect things across the spectrum. Even the way virtue signalling works, especially in the US, reflects the emanation of soft law. One expose by The Guardian shows that many (around 25) of those US Corporations, whose rating is 100% in the HRC 2020 Corporate Equality Index (which measures “public commitment to the LGBTQ community”), have donated more than $10m to anti-LGBTQ+ politicians. This happens even in the campaigns on any “global” issue, where volunteerism is mixed with the corrupt practices of consumerism among multinational companies (most of them are US-based) and then the social component of the ESG Compliances is not even adhered to, reasonably. The purpose of ESG (ESG implies Environment, Social and Governance) and even Corporate Social Responsibility in Company Law is to ensure that companies avoid participating in discriminatory or untenable practices, which have worse effects. Sometimes, self-regulation is not just about imparting cultural intelligence for encouraging diversity and sustainable solutions. The economic patterns of any self-regulation activity very much resemble how soft law works (at least through this example). Yet, start-ups from Singapore, Israel, UAE, Saudi Arabia and even India, show an interesting digital story, and shape the notions of tech governance in their own beautiful ways.

Let us then assess the second example, AI Ethics. AI Ethics is generally a set of rules and norms created by a select group of people, which include lawyers, data practitioners, AI Ethicists, computer scientists, etc., and are based on the design and default features of the AI/ML system (product/service). Simply, the way Artificial Intelligence operates is at every step of its working – from the development of the hardware and software components to the very design and default features of the algorithms, data processing and privacy infrastructures. There are 2 important considerations for this – first, that since the product/service is AI-oriented, it needs to be understood. The second thing here is that there are algorithms involved in the process – which needs us to see them as units and distinctive components of the very system. These are merely the basics – but they – if understood in the component of what sort of industries are available, can help us in many ways. For industries wherever AI-based or AI-like systems are being put into use, various AI Ethics standards can be formed based on the same features, which UNESCO and other major bodies including India’s NITI Aayog call as – Responsible AI, Ecological AI, Safe AI, Omnipresent AI, Beneficial AI, Friendly AI and what not. Now, not all of them are currently accepted by many countries in the public domain and even deliberations are underway in the UNESCO meetings on the Recommendations for AI Ethics. And since there is so much diversity in the AI family, from facial recognition to robotics to surgery applications, considering that the Western (actually US-dominated) narrative is to include AI into every aspect of human and non-human life – there is no virtual possibility to even develop a basic international technology law treaty on AI. Then, there are realpolitik concerns as well. However, on Lethal Autonomous Weapons, a sub-field of AI can be crystallized with IHL-centric treaties since the ICRC and the UN are working extensively on this. Then, from the domain of cyber sovereignty, maybe some legal texts apart from the UNESCO Recommendations can be developed. Now, the way AI Ethics form soft law is quite simple – like self-regulation, it enables non-human and even non-state administration of environments. It is a different question if these AI products and services are being hyped or not because hype exposes how well-functioned or over-hyped these products/services are. However, considering the future of AI, developers have an important role in shaping the way AI works and is put into use. AI by definition is a dynamic tool, which can impact civilizations, and so, the rules which govern AI’s ethical dimensions are definitely soft law.

Why is Customary International Law Positivist?

Customary International Law’s legal origins are based on the proportional and analogous relationship between treaties and customs. CIL, since the cold war period, is reflected in quite tactical ways to address generalist, universalist, and liberal concerns of the international community, especially those of the NATO bloc countries (North America & Europe). Even the voiced concerns of the erstwhile Communist bloc, such as the USSR and also of the Non-Aligned Movement led by India under former Prime Minister Jawaharlal Nehru were prevalently expressed. India proposed to add human’ instead of ‘man’ in the 1948 Universal Declaration of Human Rights as not just a gesture to counter gender-based stereotypes in the Western approach to human rights law. It was India’s altruistic gesture and attitude towards international human rights law itself. India’s stance on decolonization, often supported by Soviet Union contributed to India’s academic contributions in the field of third world approach to international law. However, the same field is now being mainstreamed by post-colonial countries and even those like Iran and Russia for their specific interests. Another example of the influence on CIL’s positivist character can be found in the way countries shaped their own arenas of multilateralism. France dominated the International Civil Aviation Organization and influenced the legal contributions of the World Intellectual Property Organization, while China now dominates the World Health Organization and the International Telecommunications Union. Countries dominate and put up their agenda considerations in order to achieve general and special goals. The reason why customary international law by nature is positivist is due to 2 important reasons:

  • It helps countries to focus on the skeletal and mechanical dynamics of legal diplomacy and advocacy under the hierarchies of public and private international law, subject to their and the other parties’ national systems;
  • It also assures that the national interests and the realpolitik conundrums shaped sporadically or systemically are in a much-structured manner preserved under international law through customary practices, that even if they are not binding, they would have a special value;

The best example of how CIL matters is the unusual transformation of international space law through UNGA resolutions in the Cold war era and the UNCOPOUS, despite the fact they were America-backed in those days. The Soviets had not even agreed with the US. The fact that CIL is positivist has not much to do with the Austinian or Kelsenian ‘mentality’ of international law anymore. In the 21st century, the positivist character of CIL is apparent even in the 2018 Draft Conclusions on the Identification of Customary International Law prepared by the International Law Commission (read Conclusions 6-10).

How to Tackle the Coherentist Nature of Legal Positivism

Roger Brownsword in an article for the Indian Journal of Law and Technology by NLSIU Bangalore in 2019 had explained the idea of coherentism. This concept has been explained in the context of technology law. However, by virtue of constitutional law, this applies even in general jurisprudence. Coherentism is the biproduct of dispositivum. It means that due to legal positivism, countries adopt antique classical approaches of restricting any disruptive effect of technology inclusion into the status quo. CIL in many ways is an interesting reflection of the coherentist nature of legal positivism. Soft law therefore ensures that other means and methods can be established to counter legal positivism’s own limits. However, it also means that the way soft law functions cannot be limited to mere factors of influence since they, by design, are either horizontal or bottom top.

(To know more about the topic, you may read the book authored by the authors of this piece. The book is called  “Global Customary International Law Index: An Analytical Monograph and can be ordered from Amazon)

(This post has been authored by Abhivardhan and Bhavana J Sekhar. Abhivardhan  is the President & Managing Trustee of the Global Law Assembly and Bhavana is the Principal Researcher at AbhiGlobal Legal Research & Media LLP)

Cite as: Abhivardhan and Bhavana J Sekhar, ‘Why Soft Law Endangers the Positivist Character of Customary International Law?‘ (The Contemporary Law Forum, 30 June 2021) <https://tclf.in/2021/06/30/how-soft-law-endangers-the-positivist-character-of-customary-international-law> date of access. 

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