Commitment and Compliance: The Role of Non-Binding Norms in International Legal Systems, Ed. Dinah Shelton, Oxford University Press, 2003, pp. 65-73.
Abstract
This article ' a chapter in a collective volume on compliance and the role of non-binding norms in the international legal system ' raises questions regarding the usefulness of the concepts of compliance and 'soft law', each of which underlies a number of the contributions appearing elsewhere in the collective volume. In particular, the author suggests that: (1) approaching issues of the international normative order from the perspective of 'compliance' risks obscuring or distorting an understanding of how international norms actually help to structure international order and cooperation; (2) the idea of 'compliance with international soft law' may blur and impair the very useful distinction that states traditionally have drawn between legally binding and non-legally binding normative techniques in constructing their normative arrangements; (3) in studies of the international normative order, our primary emphasis and objective should be helping nations cooperate rather than simply 'making them behave.' Drawing upon his experience as an attorney in the Office of the Legal Adviser of the U.S. Department of State, the author proposes, in some detail, a possible alternative model of how foreign office and other officials involved in foreign policy decisions take account of arguably relevant international norms and think about issues of compliance. This alternative model suggests, inter alia, that such officials' attitudes and behavior regarding situations raising international normative issues may often be conditioned by considerations such as: (1) their recognition of the legitimacy of tentative and incomplete obligations; (2) their perception that different obligations may reflect varying 'densities' of commitment; (3) their efforts to balance their desire to retain their own flexibility and freedom of maneuver with their desire for certainty and predictability on the part of other states or international actors; (4) their awareness of the parties' tacit acceptance that there may be ranges of permissible flexibility around the 'core' obligations of a norm; and (5) their recognition of the legitimate expectation ' varying impact of events and pressures arising subsequent to the emergence of a norm. This alternative model also suggests that the whole bias of the international normative system, and particularly of that involving non-binding norms, is in practice more towards accommodation than 'legalistic' contention. Finally, the author: (1) joins others in questioning the coherence of the concept of 'soft international law', at least as applied to legally non-binding norms and instruments; (2) expresses his concern that an emphasis on compliance may point towards a backward-looking and overly-legalistic focus on state 'misbehavior', rather than a more productive enquiry into devising and deploying better techniques and arrangements to facilitate international cooperation; and (3) suggests types of studies, going beyond a study of compliance alone, to explore more deeply the relation between international norms and state behavior.
