The Oceans Conference 2017 will be producing a document called the ‘Call for Action.’ It is to be adopted by consensus at the Conference. The document aims to be concise, focused, and action-oriented. Its purpose is not to renegotiate the Sustainability Development Goals (SDGs) nor is it an opportunity to revisit or renegotiate any existing instruments. The most critical nature of this document is that it will not be legally binding. Its soft law status is also very questionable as the consensus document is likely to be very vague.
How are we actually going to achieve action to target SDG 14 through words such as ‘significantly reduce,’ ‘sustainably manage,’ and ‘effectively regulate’?
The advantages of soft law, as was explained by Vernon Rive, lecturer on International Environmental Law at AUT, are that they are easier to negotiate as the stakes are not as high, they can be used to overcome domestic, constitutional or political barriers, and allow non-State actors to participate and potentially be bound.
The ‘Call for Action’ does not get as specific as the SDG targets themselves. As mentioned above, this document is not to renegotiate SDG 14 but to find out how to get more countries on board with the process and to publicise it for the non-State actors.
In order for the ambiguous words above to have a real effect and really stand as a call for action, we would need to have assurance on State capacity for effective application of the document at domestic levels. Administrative and political capacities are necessary to govern and ensure that policy instruments work. It is at this level that a State is aware of the material and cognitive resources of domestic regulators who / which will drive the knowledge and expertise of non-State actors and wholly support the purpose of the document.
A document like the Call for Action, which congregates the harmonized view of many nations, is most appropriate to remain as soft law. I am of the view that there is a purpose behind the use of soft law, a purpose that has allowed for such law to be predominant in international law. The ‘Call for Action’ may be implemented to its fullest potential as long as States are ready and prepared to encompass it within the States. This is what I sincerely hope to be achieved and what all States should strive to achieve.
It is time that States stop delaying their actions to protect our ocean through the use of ambiguous words. Instead, the flexible and malleable nature of these words should be taken as a useful tool in adapting the document to each nation for action to be taken as a collective group.
US District Court