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Arctic legal tides : the politics of international law in the Northwest Passage Nankivell, Justin DeMowbray

Abstract

The politics of international law should be seen as a constant condition of international affairs within which the practices of international law and world politics unfold. This work aims to uncover several ways to understand the politics of international law, and in particular, to understand how law and politics interact within extended foreign policy sequences. These long foreign policy episodes are generally centered on a particular component, or body of, international law. Yet they are also subject to numerous elements and functions of international law which give form and content to a state’s policy development. These include complex compliance decisions, repeated public justifications over the terms of legal validity, learning what the law requires to meet thresholds of compliance, and states’ engaging in forms of legal rhetoric known as creative legal arguments: legal justifications that attempt to change international law when states face difficult policy choices. These various areas of international law highlight, in part, how international law ‘works’, or has effects within world politics. This project attempts to consolidate recent scholarship in this subject area by employing eclectic theorizing to explain the politics of international law as it unfolds in policy deliberation and choice. This task involves utilizing many insights from social constructivism and critical international legal theory, but also capturing the central ideas of legal realism, rationalism, and interactionalism in their ability to explain compliance decisions. From this point of departure, this work attempts to build theoretical bridges through a genuine interdisciplinary engagement with international relations and international law. Such an endeavor brings clarity to empirical events and historical legal phenomena. To demonstrate this claim, the analysis offered evaluates the foreign policy sequence in Canadian legal policy over the Arctic waters known as the Northwest Passage, a forty year legal dispute between Canada and the United States. The case study sheds light on how international law-making unfolds over time, by virtue of the numerous iterations between Canada and the United States in bi-lateral settings, international conferences, and the third codification conference on the Law of the Sea (UNCLOS).

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Attribution-NonCommercial-NoDerivs 2.5 Canada

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