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.