Overcoming the “Coloniality of Doing” in International Law: Soft Law as a Decolonial Tool

Abstract

Law, as a set of norms designed to regulate social life, is a field of difficult change, being always behind its time. The case of international law is even harder due to the limits of its positivist normative structure, formulated not only by countries that hold military/economic power in the international arena, but also in a modern/colonial historical moment that has guaranteed their legitimacy for more than five centuries, which makes it extremely difficult to have rules that contemplate the desires of the Third World. Thus, what seems to exist is that, in addition to the colonialities of power, knowledge and being, there is also the “coloniality of doing”, limiting the development of international rules. Hence, this paper addresses this problem, since the existing norms have a high coloniality burden and will hardly be altered by the current formulas. To this end, by following an explanation of decolonialism as an epistemic approach and its relation to the Third World Approaches to International Law (TWAIL), the role of soft law will be addressed as a decolonial tool capable of solving the existing impasse. Based on the deductive method and a critical-explanatory approach, an applied research will be conducted using the bibliographic procedure for analysis with qualitative selection.

Editorial: Forms and functions of soft norms and informal law-making in international migration law: a different frontier

“…Siding with this decolonizing function, soft law may be perceived as redistributive justice, as the GCM requires consenting to political, instead of legally binding, commitments. Thereby, and through a systemic interpretation which uses context as a guide, beyond the plain meaning or the telos of a rule, soft law creates a level playing field among states, strengthening those efforts which aim to decolonize the interpretative space of treaties, pledging to reinterpret contested frames, such as state sovereignty used to detain migrants, to rely on the duty of sending states to readmit their own nationals (Achiume, 2019;Squeff, 2021). Getting to such a joint narrative, might be the foundation for a new custom or general principle of law, yet it often comes at the cost of human rights protection (Guild et al, 2019).…”

“…Unlike an authoritative understanding (see below), subsequent practice acquires an interpretative quality to ideally guide and clarify the implementation, rather than undermining the law to be applied. In this function, the softer norm, which in the best case scenario represents also the views of non-state actors, materializes into a legally binding rule which, despite a weak procedural accountability, acquires a "source-based legitimacy, " by civil society's involvement in its making (Höflinger, 2020;van Riemsdijk et al, 2021).…”

“…Under this view of the GCM, human rights, non-refoulment and labor standards get wrought out because the GCM has failed to sufficiently incorporate or expressly refer to already existing legally binding sources (WTO GATS, ICMWR, bilateral labor agreements, preferential trade agreements). In more than one way, this soft law of the GCM's provisions on labor (Objective 5) is considered antagonistic to legally binding norms (Guzman and Meyer, 2010), but was part of the compromise out of which the GCM was born: whilst the global South agreed to the existence of a duty of intergovernmental cooperation on return/readmission of nationals (Vitiello, 2022), the global North would agree, under the GCM, to subject the entirety of their migrant integration and inclusion policies -a former stronghold of domestic policy -to the scrutiny of the IMRF (Squeff, 2021). Yet, the global North, to ward off an even deeper incision on their national integration policies, refused to vote in favor of a legally binding quality of the GCM's negotiated text and instead of adoption and ratification, the GCM was merely "endorsed."…”

“…Yet, the global North, to ward off an even deeper incision on their national integration policies, refused to vote in favor of a legally binding quality of the GCM's negotiated text and instead of adoption and ratification, the GCM was merely "endorsed." Because the GCM had to absorb such "high politics" of migration (van Riemsdijk and Panizzon, 2022), including the global South pressing for lower remittances transfer costs, while a majority of countries called to keep their sovereign leeway intact, to tackle irregular migration through arbitrary border management and administrative detention practices, intrusive health checks and data collection, the soft solution seemed adequate (Panizzon and Jurt, 2023). In both cases, the soft law outcome watered down any potentially legally binding character of the GCM, even if the IOM was installed to keep a minimum of oversight on human rights, good governance and the rule of law (Guild et al, 2022).…”