“Why do we respect international law?”
or “Why if your friends jumped off a bridge, you’d probably jump too”
If you already went to a party or to a club, you might have showed up at the bar or at the drinks table and you might have heard the question: “care for a drink?”. They are already handing you a beer, but let’s say you don’t drink alcohol, or maybe tonight you just don’t feel like it, so you say that you’d rather go for a soft drink instead. Immediately, everyone around you stops what they’re doing. People stand still as if frozen in time, even the music seems to stop, everyone stares. They don’t know if they should be more confused or angry at the fact that you dared to ask for a soft drink because everyone knows those are not “real” drinks after all.
This is kind of how some people feel about soft law, particularly legal positivists, and rational institutionalists.
What kind of law is international law?
When it comes to hard and soft law, there are three main positions.
The first are the legal positivists: they think that what makes hard law different from soft law is that hard law is binding, and soft law isn’t, or in other words they “associate[s] the hard/soft distinction with a binary binding/non-binding dichotomy”. For them, some forms of international law can be considered hard law, like peace treaties for example. Then there are constructivism scholars. To them, it doesn’t matter at all if the law is hard or soft or half-baked, what’s important is its social effect. For them, any rule is “part of a process of social interaction which can shape shared social understandings of appropriate behavior”, which means that even if a law isn’t binding it doesn’t mean that it’s less valid. Then we have rational institutionalists, who think that all international law is soft law compared to domestic law. Especially, a law can be defined as soft when “[it] is not formally binding, […] is formally binding but its content is vague so that the agreement leaves almost complete discretion to the parties as to its implementation […] does not delegate any authority to a third party to monitor its implementation or to interpret and enforce it”.
So, the reason why some people think that the existing international law (and by extension, international space law) isn’t “real” law, is the same reason why people don’t consider Coke a “real drink” at a party: while technically it is still something you drink, it isn’t a proper drink because it doesn’t have the same effects. According to legal positivists and rational institutionalists, soft law is a form of law, but not proper law.
It’s difficult to argue with that: technically, nobody stops you from littering space, even though international space law says it’s illegal. And the staunch pessimists would say that even when international law determines a punishment for some infractions, like with genocide, the perpetrator can go unpunished[1] or die before the trial can be finished[2]. But isn’t this valid for all law, not just international law? After all corruption, fraud, embezzlement, workplace harassment, rape and even murder are all potentially “soft laws” when you’re rich and influential enough to get away with it. Not because the law doesn’t apply to these people, but because they have a sort of position in society that allows them to bend the rules a little more than your regular bloke. Is that fair? No. Is it the truth? Yes, and the international community works in the same way. Gun violence in South America is “unacceptable third-world behavior”, gun violence in the USA is a “consequence of our right to selfdefense”. Torturing prisoners in the Middle East is “a violation of human rights”, torturing prisoners in the West is “a sad but necessary thing which no one needs to know about”. If the law is how we regulate our societies, it makes sense that the most influential people in said societies don’t often suffer
consequences from breaking them and most often it is because they are the ones writing and enforcing the laws. A classic case of “who will watch the watchmen?”[3].
Given all this information, when it comes to enforcing the law and especially international one, is fear of punishment really the reason why we respect laws in the first place?
How law works (even when it doesn’t)
Whenever the law gets broken, we ask ourselves why. Why do people steal, kill, or don’t use the turn signal at intersections? Really, it would be more useful to ask ourselves why people obey it in the first place: most people respect the rules, and there must be a reason for it.
There are two schools of thoughts as to why people respect the law: the instrumental and the normative one. Fans of the instrumental (or deterrence) perspective think people “[shape] their behavior to respond to changes in the tangible, immediate incentives and penalties associated with following the law”[4]. In sum, they think that people obey the law because they are afraid of the punishment and therefore, to make people respect the rules, you must make punishment harsher. The normative perspective instead “[focuses] on people’s internalized norms of justice and obligation. It suggests the need to explore what citizens think and to understand their values”[5]. So, people respect the law if they think it is fair and if they believe that the institutions enforcing them are legitimate. In this case, punishing the perpetrators won’t necessarily get people to behave, it might in fact have the opposite effect.
Then there is a third perspective: respecting the rules agreed upon by society is the most “natural” course of things, and people adopt criminal behavior because of reasons related to their upbringing, their economic condition, their social status and so on. According to this sociological perspective, “to reduce crime, we must address these structural conditions and appreciate the role that factors such as race and ethnicity, gender, and social class play in criminal behavior”[6].
These perspectives were developed thinking about domestic law, but I would argue that they apply in general. Rules after all are norms about what constitutes acceptable behavior in a society: some rules are written and punishable while some others are not written but are just as bad and can lead to social estrangement or ostracization. For humans, this is a big deal: social interaction is a basic need, as important as eating and sleeping[7], and being excluded from society can therefore prove extremely damaging. For sociologists, this basic need is part of the reason why we respect the rules of the society we live in. We said in the previous article that international laws are created by the international community, which is mostly made up (but not exclusively) by States. Though it is different from a normal community, the international community also has its rules, some of them written and some not, some punishable and some not, and it is still constituted by people.
Honor among thieves
Not all crimes are the same, in the international community and in society at large and sometimes, the law and what people think is acceptable don’t always coincide. Making alcohol illegal in the USA didn’t stop people from drinking and selling it, and people who were convicted of that crime did not suffer major consequences at the social level for that infraction. Beating a person of color was not considered a crime in many Western countries, while now for this kind of crime, the racial factor could be an aggravating circumstance. Sometimes, the law allowing something doesn’t mean everyone will do it, either: aiding and hiding Jews was illegal in the Third Reich, yet some people did it anyway because they believed that was the right thing to do.
Even to people who break the law, some things are unthinkable: it is a truth universally acknowledged that if a pedophile makes it behind bars, they are as good as dead. Therefore, a law becomes truly effective when most people see its violation as something unthinkable and unacceptable. While it is likely that there will probably always be crime because a certain level of “social deviance” is to be expected and it is also, to a certain extent, natural, a law is really cemented when even criminals will restrain from breaking it and when even in the case where that specific action where to become legal, most people wouldn’t do it. By itself, nothing is inherently unthinkable and unacceptable, and we just need to look at history to have proof of it. Nowadays human sacrifice is frowned upon, but for ancient people across the world, it was a regular Sunday afternoon activity. Even pedophilia, which nowadays in some parts of the world not even murderers and crime lords can’t accept, was once okay in some time and places. The fact that our collective values can change means that our societies can change as well — if for better or worse, that’s another topic of discussion.
“If all your friends jumped from a bridge, would you do it?”
If jumping off bridges was seen as some sort of acceptable behavior, better yet, as part of a necessary ritual to integrate into society and prove yourself at the eyes of the community, you would probably jump along with your friends because if you didn’t, you’d be ostracized. Chances are that in that case, jumping off bridges would be allowed. If instead jumping off a bridge had no social relevance at all you could probably excuse yourself from that activity, and would also be regulated in some way: barriers would be put on bridges to stop people from jumping, or a fine could be put on people caught performing the activity.
Most international law works in a similar way: if most States behave in a certain way, adopting a different behavior will be seen as weird at best and unacceptable at worst. Law regulating a behavior shows the widespread belief that the activity is wrong, but it doesn’t necessarily mean that people (and States) will refrain from that behavior. This is the reason why, even though war has been “outlawed”, States still wage war, while doing anything in their power to deny that that’s what they’re doing. Case in point: Putin refuses to call the invasion of Ukraine “the invasion of Ukraine”, because invading other countries became unacceptable to the international community after the mess that was WWII.
Asking if international law is useless since States still end up breaking it is, in my opinion, a bit like asking if domestic law is useless since people still end up breaking it. There are many reasons why States and people don’t respect the law, and these reasons aren’t related to the fact that the law is useless or ineffective. Murder is not considered socially acceptable, yet it happens every day: in no way does this mean that, just because people still commit murder, we should just scrap the laws altogether or consider them as “not that effective”. As we explained above, there are many reasons why people commit a crime, and the existence of the law prohibiting a certain thing isn’t inherently what makes people stop doing it. Sometimes there are other, more complex factors at play. Sometimes crime just can’t be helped, and sometimes, something isn’t considered bad enough for the majority to abstain from it.
And for that matter, most international law is respected: wars are common, but not as common as they could be. The law regulating international trade in the sea is respected, the law designating the polar regions and neutral zones are respected and no one has started digging there yet, even though they contain massive amounts of oil. If you are a pessimist, you might say that States haven’t found a good enough reasons to break them, yet. That’s debatable, and quite difficult to prove. Saying that international space law is not respected would be false either, because up until now no one has yet claimed sovereignty over the Moon or has sent nuclear warheads to space, even at the height of the Cold War.
So, what can we do? One of the most effective way of making people respect the rules is to stop pretending as if they weren’t there. It is not fair to say that “space is the Far West”, because it is not. It is also unfair to say that international space law is useless because it is not: it is the beginning of a process which will eventually determine what’s acceptable and what’s unacceptable in space. Right now, polluting space is illegal, but still socially accepted. If we want to make space pollution unacceptable, we must keep in mind the existing international laws, be aware of them, remind space actors of their existence and demand for them to be respected. And if we keep on doing this, then one day we might get to the point where polluting space will seem unacceptable. This is Cosmos’ mission.
[1] https://www.history.com/this-day-in-history/adolf-hitler-commits-suicide
[2] https://www.history.com/this-day-in-history/milosevic-goes-on-trial-for-war-crimes
[3] Quis custodiet ipsos custodes?, Juvenal
[4] Tom R.Tyler, “Why people obey the law?”, Chapter 1: Procedural Justice, Legitimacy and Compliance, p.3, Princeton University Press, 2006
[5] Tom R.Tyler, “Why people obey the law?”, Chapter 1: Procedural Justice, Legitimacy and Compliance, p.4, Princeton University Press, 2006
[6] Steven E.Barkan “Criminology: a social understanding”, Preface, p. xviii, Sixth Edition, Pearson 2001
[7] Ying Xiong, Huilin Hong, Cirong Liu, and Yong Q. Zhang “Social isolation and the brain: effects and mechanisms”
