Compliance without Ratification: Using International Law in Non-Binding Scenarios

Abstract

Does law matter in situations where it is non-binding? This study endeavors to determine in what situations law, in particular human rights conventions, are useful despite not having been ratified by states. In order to answer this question, the paper surveys the ways non-binding law is influential in domestic legal regimes, both as a guide to policymakers and in jurisprudence. Further, the paper looks at case studies of South Africa, Zimbabwe and Myanmar; so-called international pariah states; where law has played a significant role in advocacy as the states work to return to the international community. It also examines potential backlash to the use of law in for advocacy in authoritarian and despotic states. Across this examination, the paper finds that in many states the justiciability and applicability of law is unclear, including significant questions of what actors are bound by its tenets, when such application begins and if, in federal states, sub-national units are so bound. This lack of clarity makes law's usefulness in non-binding scenarios all the more important. The paper also concludes that if acceptance of law is removed as a precondition for being a part of the community, with the requisite economic and reputational incentives, law will lose much of its power in non-binding scenarios.