BOOK REVIEW BY:
ANITHA THAMIZHARASAN(Jr. Associate Editor)
“Our environmental problems originate in the hubris of imagining ourselves as the central nervous system or the brain of nature. We’re not brain, we are a cancer on nature.”
This book by J Friedrich elucidates the soft law i.e the nonbinding instrument in the international arena specifically dealing with environmental issues which are mainly written for law luminaries. This book is magnificently structured in a very orderly and clear work. The author had his own style of construing the idea to the readers. The reason behind focusing the environmental issues is that all the resources are common and shared by all the states and also the impact would affect all of them as a whole. Firstly, this book explains the essence of nonbinding instruments in international institutions about its role, functions, importance, and limitations. Further, it is also concerned with the differences between ‘soft law vs hard law’ or ‘binding vs nonbinding’ and most importantly the legitimacy of nonbinding instruments. Regarding the international environmental agreements which incorporate the use of nonbinding instruments in large because the nonbinding instruments are highly diverse, flexible, easy to coordinate, and cooperation between other international institutions.
In the first part, it enumerates the number of nonbinding instruments such as memoranda of understanding, international programs, declarations, recommendations, and operational procedures and safeguards policies. It also mentioned the approach of nonbinding by means of the United Nations General Assembly, United Nations Environment Programme, and so on. As environmental concerns hold a key position across the world, nonbinding instruments became highly increasing. The impulse for the making of soft law on nature started with some life in 1972 at the UN Conference on the Human Environment, with the section of archives, for example, the Stockholm Declaration of the UN on the Human Environment. From the discussion of case studies and nonbinding instruments from the book, we can find the rationale for the expansion of nonbinding instruments. The main explanation is portrayed as systematically frame-worked in nature and results from the presence and improvement of a system of perpetual institutions at international and national levels. The UN has shown substantial work by offering a standing structure that makes conceivable the organization of permanent and on-going political, economic, and normative negotiations among other states. As the resources are vast across the globe and change in development with time, which has caused a turn in majority power. Nonbinding instruments such as international programs, recommendations, declarations, and so on have been identified for amending the binding rules and principles of the international law treaty. The fast-growing economy and countries being independent lead to the need for new laws in which nonbinding instruments are easily flexible, adaptable, and applicable to the changing circumstance compared to the binding.
There are many instruments acknowledged by several international organizations such as World Charter for Nature 1982, Rio Declaration on Environment and Development 1992, Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Activities, 1985, etc. The motive behind using these nonbinding instruments is to intricate all the possible measures from being degraded.
The next part of the book clearly examines the differences between soft law and hard law. Soft law does not need any extra force to execute which is unwritten whereas hard laws require force and strictness to implement. Binding law is more time consuming as it needs time to prepare the agreement and nonbinding law straight away gets into work. The binding instrument is more strict and it is not easily negotiable it is difficult to agree with it whereas in the case of international waters it is nonbinding because it is very convenient. The major portion of environmental issues is addressed by nonbinding instruments compared to binding instruments. Even the nonbinding instrument is limited when it comes to enforcement and faces difficulty. From the above discussion, it is known that nonbinding instruments play a precursory role frequently. If we take anything in this world it has both advantages and its own limitations. In the case of nonbinding instruments, it is the same, it is more flexible, adaptable but it is limited when it comes to implementation and compliance and so as the binding instrument. Therefore, it is necessary to adopt both binding and nonbinding instruments irrespective of their own differences, as they both are equally essential to the international institution.
And the final part deals with legal status and the significance of the nonbinding instrument in the international environmental law. Despite its limitation, the utility and importance of nonbinding instruments cannot be declined. All the declarations, programs, and recommendations are nonbinding instruments but at present, they are nearby to written laws, for instance, Stockholm Conference 1972. As there is no proper mechanism to enforce the nonbinding instruments. Nevertheless of the limitation, the nonbinding instrument is still adopted and practised in trade law, environmental law, administrative law, tort law, and human rights law.
Apart from the author’s way of looking at International Environmental Soft Law, there are few things that might be included in order to achieve the objective of adoption of soft law and instruments, proper monitoring and systematic follow-ups are imperative. This helps to systematically assess the progression of implementations and results. The implementation of a regional and domestic mechanism related to soft law performs much efficiently than the global ones, particularly in the context of environmental issues. As far as environmental rights are apprehensive, soft law could possibly be enforced at the national level. We can easily achieve our aim by working together and sharing ideas. so public awareness about the features of soft law is essential. If any complications or issues occur regarding the soft law implementation process, more number of state parties should assemble and discuss in order to bring about a more collaborative and participatory solution. Leadership is an essential component in achieving the objective of soft law. Leadership is an art that is required to initiate and motivate work toward success. No state party has claimed a leadership role in ensuring the protection and safety regulation of environmental issues, which has already led to the failure of a wide range of environmental norms. To acquire compliance in soft law, it is very important for all the State parties to participate equally in this. One essential thing that can be done to effectively utilize and develop soft law is to make all discussions and works transparently. The state parties must be conscious of all the legal loopholes and vulnerabilities. Financial incentives to enforce soft law consistently at all levels should be supported and improved. Naming soft law is one of the vital components in enhancing its implementations and therefore generates higher aspirations for people. Norm of abstaining is more beneficial than norms which demand action in case of implementing soft law appropriately. To legalize soft law, it must be associated to hard law. In the majority of the study results, it has always been identified that hard law plays a crucial role in achieving the implementation of soft law. The Regulatory framework of state actors is simpler than that of non-state actors. Therefore, soft law on non-state issues should be enforced first. In an attempt to compare the intrusive and domestic directives, we found that common area specifications and norms are simpler to aggregate. So, soft law must preferably be enforced in collectively common areas. In order to improve the compliance related to soft law, precise and reliable commitments should be endorsed on the state parties. Vague treaties and negotiations do not function properly. Soft law must never be regarded as a normative sickness instead it should be considered as a reflection of present-day circumstances and a section of necessity. It could be stated that soft law instruments perform a major role in the development of international environmental norms. They shouldn't just be undervalued because of the fact that they just do not establish the binding rules of per se. They operate in a much more indirect way, through persuasion and not just by coercion. In general, soft law instruments actually offer the most practical solution to deal with environmental problems at an international platform. Traditionally, soft law has become the extreme edge of international academic law revelations, given its importance to all practice in the States. This may be because soft law has never been seen as a sensible and noteworthy international law. In simple terms, soft law was given very little attention that its spot remains controversial under international law. Soft law has indeed been highly criticized and ignored as an element in most of the international affairs. The realists concentrate on the lack of an arbitral judiciary with assisting constitutional powers to help regulation, concluding that all international laws are soft and would, therefore, be the only accessible window dressing.