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UBC Theses and Dissertations

Soft law and international relations : the arctic, outer space, and climate change Nadarajah, Hema


Soft law has been observed to be increasing within the global system, particularly in regions and issue-areas where scientific and technological knowledge has been substantively integrated into decision-making and governance. The often-used assumption for the prevalence of such instruments has been the uncertainty of scientific knowledge. This dissertation examines this assumption and takes the analysis further by examining contemporary changes to the international system, such as the number and diversity of state and non-state actors as well as their relative influence, through a close examination of three cases — the Arctic, Outer Space, and Climate Change. This dissertation makes three contributions. Firstly, it proposes that soft law instruments can be binding or non-binding. Binding soft law instruments, called “soft treaties”, are made up of permissive, ambiguous, and/or redundant obligations. Secondly, this dissertation empirically establishes that soft law instruments are becoming more prevalent, as the literature has claimed but not verified. In order to identify reasons for this prevalence, the dissertation examines a sample of significant instruments using a mixed methodology that encompasses legal textual analysis, a review of the International Relations and International Law literature, and interviews with academics and practitioners. It finds that the prevalence of soft law is an outcome of, ranked in relative importance: (1) shifting global politics arising from an increasing diversity and influence of states and non-state actors; (2) coordination despite mutual suspicion; (3) the desire for states to paper over differences; (4) a desire to avoid constitutional constraints domestically; (5) the promotion of epistemic communities; (6) a desire to be seen as doing something, and; (7) the gradual crystallization of harder law. Thirdly, this dissertation examines the potential implications of these findings which are: (1) the increased opportunities for states to forum shop; (2) the rise in complacency about soft law-making that may arise from consensus-based decision making structures; (3) the establishment of path dependency to cooperate within discrete areas despite diplomatic challenges elsewhere, and; (4) the non-linear evolution of written international law. In broadening the definition of soft law, this dissertation contributes to understanding the dynamics between International Relations and International Law.

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