This article is co-authored by Poulomi Chatterjee.
In a recent article on Law 3.0 and Soft Law, it is explained what Soft Law has been, in conceptual terms, and how does it shape our legal decisions and policy actions. In this article, as a follow up to the concept of Soft Law, we take the example of the policy construct of the Indo-Pacific, to examine the concept as a driver of soft law tendencies, in India and the rest of Asia. The coverage of the concept of Indo-Pacific is widely pan-Asia, since governments across the world including the United States, India, Japan & Australia and regional organisations such as the European Union embrace the importance of this concept. It does have important ramifications in various fields of law, including international law, law & digital technologies, environmental law and corporate governance & ethics.
A Quick Recap to Soft Law
Soft Law is a concept, mostly seen in the realm of international law, where we see emerging trends of hortatory (or pedagogic) measures, rules, systems, regulations and even norms, whose point of origin is not a system or authority of law (which is usually a top-down authority), but a set of stakeholder entities, institutions, groups and individuals, who have a genuine and legitimate role to play. They might not have the role to become an equal stakeholder to address or even acknowledge a question of law. However, their contributions, interventions and approaches to realities bound by legal systems and frameworks are essential, since they may or may not be put into use by Governments and International Organisations across the world to justify their actions and public policy measures. In many ways, the role of Soft Law is clearly visible in fields like international commercial arbitration, environmental law, international space law and technology law, for starters.
Here is an excerpt from the 2018 Draft Conclusions on the Identification of Customary International Law (with Commentaries) produced by the UN International Law Commission, A/73/10, Part 5:
Various materials other than primary evidence of alleged instances of practice accepted as law (accompanied by opinio juris) may be consulted in the process of determining the existence and content of rules of customary international law. These commonly include written texts bearing on legal matters, in particular treaties, resolutions of international organizations and intergovernmental conferences, judicial decisions (of both international and national courts), and scholarly works. Such texts may assist in collecting, synthesizing or interpreting practice relevant to the identification of customary international law, and may offer precise formulations to frame and guide an inquiry into its two constituent elements. Part Five seeks to explain the potential significance of these materials, making clear that it is of critical importance to study carefully both the content of such materials and the context within which they were prepared.
Another excerpt states the following, from Part 5, i.e., Conclusion 14 states clearly that the teachings of the most highly qualified publicists may serve as subsidiary means:
The Commentaries also state two important aspects of development of legal principles and concepts. The first aspect of the development of law, has been described in this excerpt:
There is need for caution when drawing upon writings, since their value for determining the existence of a rule of customary international law varies: this is reflected in the words “may serve as”. First, writers sometimes seek not merely to record the state of the law as it is (lex lata) but to advocate its development (lex ferenda). In doing so, they do not always distinguish (or distinguish clearly) between the law as it is and the law as they would like it to be. Second, writings may reflect the national or other individual viewpoints of their authors. Third, they differ greatly in quality.
The second aspect on the subsidiary means, especially on the role of publicists has been aptly described:
The term “publicists”, which comes from the Statute of the International Court of Justice, covers all those whose writings may elucidate questions of international law. While most such writers will, in the nature of things, be specialists in public international law, others are not excluded. The reference to “the most highly qualified” publicists emphasizes that attention ought to be paid to the writings of those who are eminent in the field. In the final analysis, however, it is the quality of the particular writing that matters rather than the reputation of the author; among the factors to be considered in this regard are the approach adopted by the author to the identification of customary international law and the extent to which his or her text remains loyal to it. The reference to publicists “of the various nations” highlights the importance of having regard, so far as possible, to writings representative of the principal legal systems and regions of the world and in various languages when identifying customary international law.
The excerpts clearly give a pathway to governments and international organisations to promote soft law measures in the development of law per se. It thereby makes obvious that one of the most interesting features of soft law is that it can never be a static way of unnerving legal measures. As stated in the article on Law 3.0 and Soft Law, the excerpt provided explains the dynamic nature of Soft Law:
It is a phenomenon where the repositories of legal thinking can always learn the best from the policy phenomenon, which are uncertain, unclear and hortatory. Lawmakers and courts can try to make Soft Law rigid, but the nuance always lies in the details. It is impossible to keep up with the rigidity, as Soft Law has to be fungible. Otherwise, the instrumentation which we call as “the” Soft Law, will automatically become a relic or existing part of the Hard Law conundrum, in the form of regulation mechanisms, laws, judgments or any other possible form.
The following excerpt from Soft Law in Outer Space [Irmgard Marboe (Ed.)] (2012) may be treated as a reminder to the practitioners of international law, on the dynamic nature of Soft Law:
On the other hand, as public international lawyers, we need to be careful not to read too much into such instruments when it is not appropriate. Just like, under the law of treaties, it is not permissible, in the absence of ambiguity in the terms of a particular treaty provision, to ‘read into’ that provision rules to reflect what should be, it is not appropriate to convert in our mind something that is not, and not intended to be such, into a binding rule or obligation. This need for caution sometimes goes against our instincts as academic international lawyers, given that we operate in a field of law where normative rules are distilled from descriptive behaviour, such as in the formulation of customary international law.
A diagram from the previous article on Law 3.0 and Soft Law has been provided for reference:
The Language of Indo-Pacific and its Relevance
The Indo-Pacific region, as we know, is a concept promoted in the field of international relations and Asia studies, where the importance of two ocean regions, Indian Ocean Region and the Pacific Ocean Region is attached to the concept of a rules-based international order. A geographical depiction in From Asia-Pacific to Indo-Pacific: Significance, Implementation and Challenges of the Indo-Pacific region as understood by different countries in Asia has been provided for reference:
Now, the concept has earned its value since the early 2000s, when the Former Japanese Prime Minister Shinzo Abe had promoted the concept of a Free and Open Indo-Pacific. We see that in the year 2017, a minilateral grouping known as the Quadrilateral Security Dialogue (also known as the Quad), consisting India, the US, Australia and Japan, is reinstated, and the level of diplomatic engagement has improved from the level of Foreign Secretaries to Foreign Ministers and Heads of States (and Governments). As the conflict in Ukraine unfolds, in February 2022, a Quad Foreign Ministers’ Meeting was conducted in Melbourne.
The objectives of the Quad, have been explained by the White House Statement on the grouping:
Today, we pledge to respond to the economic and health impacts of COVID-19, combat climate change, and address shared challenges, including in cyber space, critical technologies, counterterrorism, quality infrastructure investment, and humanitarian-assistance and disaster-relief as well as maritime domains.
Meanwhile another group of 4 nations have come up to form a minilateral grouping, where the region of focus is West Asia, known as I2U2, with India and the US joined by the United Arab Emirates and Israel. The recent I2U2 Leaders’ Virtual Summit was conducted in July 2022. In the Press Release by the Government of India, the objectives of I2U2 have been provided in brief:
I2U2 is aimed to encourage joint investments in six mutually identified areas such as water, energy, transportation, space, health, and food security. It intends to mobilize private sector capital and expertise to help modernize the infrastructure, low carbon development pathways for our industries, improve public health, and promote the development of critical emerging and green technologies.
Now, there is a political overtone to the concept of the Indo-Pacific, which these 2 important groupings would reflect with time (for example, criticising actions or decisions of other countries). Yet, India as an actor in the Indo-Pacific, with and beyond these groupings, despite its own state interests, has shown to become an international actor with concerns beyond the overtones, which even has been reflective in its international law jurisprudence for years, which has its own limited criticisms. An article on India’s approach to international law has been provided for reading.
The importance of the concept of Indo-Pacific, in the field of jurisprudence, and not just international law, lies in the details of the understanding of value systems and policy thinking which this concept promotes in Asia. Earlier, the concept of international law, in the post-Cold War times had the indulgence of the Asia-Pacific understanding, which was oriented around the policy visions and value systems promoted by members of the regional organisation, ASEAN (the Association of South East Asian Nations), Japan, the Republic of Korea and the People’s Republic of China. After 2020, the concept of the Indo-Pacific has become relevant for India, not just for its sovereign interests, but also to facilitate innovation in policy thinking, which directly links to India’s own challenges of developmental economy, sustainable development, legal innovation and many important areas of concern. Areas of security and counter-terrorism also come within the scope of international humanitarian law, and India’s contribution to that jurisprudence, has been impressive. Hence, just because the concept has relevant political overtones, it would be premature to discount the policy groupthink that the Indo-Pacific as a regional construct offers.
For example, many significant developments in the field of international law and even policy matters of global concern, have been promoted by international cities. Here is a list of some important conferences, which relate to the information age and how international law has been embraced, starting from diplomatic cooperation to collective and several policy actions:
World Summit on the Information Society (Geneva, 2003; Tunis, 2005;)
World Conference on International Telecommunications (WCIT-12) (Dubai, 2012)
International Conference on Artificial Intelligence and Education, Planning Education in the AI Era: Lead the Leap (Beijing, 2019)
World Trade Organisation 12th Ministerial Conference (Geneva, 2022)
The significance of international cities is not limited to mere political presence. They act as locations of strategic importance and have an important role in shaping policy impact at governmental and intergovernmental levels. It is therefore necessary to understand the value and purpose of the Indo-Pacific concept in that regard. The language of Indo-Pacific as a regional construct explains how the concept may drive soft law in India’s own legal and regulatory affairs with time:
Shaping India’s Knowledge and Information Economics
Shaping India as a neutral and reliable forum to promote traditional, modern and diverse means of alternate dispute resolution
Shaping newer legal, technological & economic solutions on sustainable development, taking the principle of “common but differentiated responsibility” into due consideration
Shaping India as the hub of digital innovation and mobility for governments, researchers and businesses
Now, these these aspects of influence may be related to India’s domestic interests, but the impact it could have would be global. India certainly has the potential to shape the regulatory standards pursued by governments and intergovernmental bodies across the globe, which is not limited to the Government of India, and its positions. Thus, the minilateral groupings in their objectives are trying to show what aspects of development and security are they are interested to take up to promote prosperity and global stability.
Indo-Pacific Approaches to Shape International Law
The formation of several minilateral groupings in the Indo-Pacific region has several implications on the field of International Law, especially in regards to trade. Quoting Mr. Abe’s idea of the Free and Open Indo-Pacific (FOIP), ever since its recognition, the Indo-Pacific region has been looking forward to a rules-based international order, aside from the rule of law, freedom of navigation and overflight, peaceful settlement of disputes, and most importantly, the promotion of free trade. However, all of these terminologies mentioned, are based on the positivist understanding of international law and even domestic laws, in most Asian countries (for example, India).
The development of law (lex feranda) at regional and global levels, are not guided merely by the principles and questions of law, but also by those policy understandings that build the foundation of the same.
Let us take the examples of China and the United States, whose importance in shaping up the “rules-based international order” after the 1990s has been significant.
Lessons from Beijing
To quote a recent example stating why the Indo-Pacific as a construct is of essential value, is to assess the scope of China’s Belt and Road Initiative (BRI). BRI is Asia’s biggest supply chain initiative launched by the Chinese Government in order to reap the maximum trade benefits from all across the region. One of the main aims of China through this initiative is to connect the continent of Asia with that of Europe and Africa by way of land as well as maritime networks, to simply improve the regional integration and increase trade between these areas, China benefiting the most from it, while also stimulating tremendous economic growth.
Moreover, it is also contended that since the People’s Republic of China is heavily dependent upon the mechanism of trade, it being the largest manufacturing country as well as an exporter of goods of high demand; it is also heavily dependent on the routes provided by the Indian Ocean Region, which translates the purpose of the Belt Road Initiative (BRI) acting in favour of the country.
Lessons from Washington DC
After the 2000s, the role of the United States in shaping public policy and avenues of governance has shaped drastically. We see that after the 2008 crisis in West Asia and North Africa, the role of the US Government in shaping public policy and self-regulatory approaches to governance, in various countries, has been subject to decline. Now, in the information age, we anticipate the role of various entities, such as FAAMG companies (big technology companies), which even institutions like the European Commission are concerned about. After the UN Security Council-led actions in Libya, the United States Foreign Policy has been subject to actions, which ally their own domestic concerns. Their role in shaping public international law has been already taken over by a huge diversification of European, Chinese, Indian, African and even Latin American scholarships. The United States had pledged to support efforts to combat climate change. However, even after the accession of the Paris Accords, it has not achieved the required commitments. Nevertheless, the US and the EU are supporting climate efforts in India, in cooperation with the Government of India, which surely can shape incremental changes in creating and maintaining regulatory standards in law and environment in Asia, as the United States attempts to create its presence in Asia again.
Now, it is important to realise that various state actors, in the history of international law, have shaped the development of law in various domains constantly. For example, the advent of international technology law has to be connected with the development of international telecommunication law and international IP law. Even the USSR and the United States despite many disagreements over the codification of international space law treaties, had invested in the nuances and sophisticated features of the scholarship involving the pertinent legal questions. In general, many documents such as proposals, draft resolutions, communiques, statements and policy prescriptions are legally not binding. They still exist because they are useful in doing 2 things:
Tracing out the origins and phases of development of the legal and policy questions for consideration
Improving their trajectory of action, omission and review (especially in the case of justifying state practices/an international legal custom, for example)
When we look at the Indo-Pacific, we learn from the US and China that their policy visions do represent a dichotomy of visions which remain congruent, hostile or divergent. The trade conflict between the US and Chinese Governments in 2018 also reflects the same phenomenon, which may remind us the ramifications of the Brexit negotiations between the European Union and the United Kingdom on the world economy, since 2017. Another example that could be taken would be the disintegration of the Soviet Union, which had a serious impact on the Russian economy as well as the economies of various non-aligned countries, including India. This can be effectively related to a statement by India’s External Affairs Minister Dr S Jaishankar, whose excerpt is provided as follows:
Connectivity, now encompasses data and energy flows not just unhindered movement of goods and people. Data, digitization and technology are redefining and reshaping almost every aspect of business and society. India and ASEAN contribute to the ongoing rebalancing of the global order. We are driven by a rising consumer class, a strong start-up ecosystem, a growing internet economy and a robust demographic dividend. We have also between us the necessary trust and transparency now so central to digital cooperation.
The Approaches and their Impact
India’s jurisprudential approach to adapt with international legal instruments or norms directly or indirectly, has been tumultuous due to many reasons. Some of the general reasons include the inconsistency of state practices or the judiciary’s inconsistency to settle on some first principles of understanding on issues of general international law. An excerpt from an article published by the Indian Express explains the phenomenon in the case of the Supreme Court of India:
Several facets of this judiciary-led transition from dualism to monism require elucidation. First, the apex court incorporating CIL as part of the domestic legal regime is consistent with the practice of other common law countries. However, the sticky part is the ease with which CIL is accepted as part of Indian law. For instance, the Supreme Court’s willingness to readily accept the precautionary principle as part of CIL flies in the face of international law debates where the acceptance of this principle as a customary norm remains contested. Determination of whether a particular provision indeed constitutes a binding customary norm under international law requires the double requirement of state practice (the actual practice of the states) and opinio juris (belief that the custom is part of the law). The apex court rarely conducts such an analysis.
Even the recommendations by the Law Commission of India do not stand out. Some tribunals have had this problem of delivering inconsistent judgments, which on principle and purpose, have been unclear. Now, here are some instances where adapting with the concept of the Indo-Pacific as an India-centric platform of innovation in public policy, creates tendencies for incursion of soft law approaches in and through the Indian constitutional and administrative framework:
Shaping the role and practical essence of regulators in the fields of data & technology governance, competition law, ESG, international investments, trade and legal reforms
Shaping the legal and economic outlook of India’s regulators, judicial system, dispute resolution mechanisms and relevant stakeholders from the private sector, to cooperate between self-regulated practices and regulatory compliances
Globalising the experience of constraints and mobility in creating policy impact and then shaping the legal approaches to solving the problems related to the same
In further articles, the role of soft law in other relevant international law fields, such as of outer space, technology, IP, environment and others could be discussed.
