L’approccio “nudge” nel diritto internazionale: una nuova frontiera del soft law

di Deborah Russo

SOMMARIO: 1. Introduzione. – 2. Sull’ambiguità del concetto di “nudge”. – 3. La nozione di “nudge” nel diritto internazionale. – 4. Il rapporto tra “nudge” e soft law nel diritto internazionale. – 5. Considerazioni conclusive.

This article critically assesses the recourse to “nudge” in international law. First, the paper introduces the general concept of “nudge”, which entails a behavioral approach to law-making, which has raised controversy about its impact on the liberal State and the protection of fundamental rights. Then, it illustrates the prospects of its application to international law as a means to improve the acceptance of international obligations. To this aim, it discusses cases of application of “nudge” in the realm of international law (the resort to opting out mechanisms, non-binding goals and rankings) and highlights the related risks and criticalities. Finally, it questions the general “softness” of nudging in the context of international law and emphasizes that its impact differs according to how it is regulated and to the economic and political conditions of States, concluding that, in certain cases, it risks to encroach on the principles of equality and respect of national identity of States.