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Soft Law and International Relations SOFT LAW AND INTERNATIONAL RELATIONS: THE ARCTIC, OUTER SPACE, AND CLIMATE CHANGE by Hema Nadarajah B.Sc., University of Toronto, 2009 M.Env., Australian National University, 2012 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Political Science) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) November 2020 © Hema Nadarajah, 2020 The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled: Soft Law and International Relations: The Arctic, Outer Space, and Climate Change submitted by Hema Nadarajah in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Political Science Examining Committee: Michael Byers, Professor, Department of Political Science, UBC Supervisor Katharina Coleman, Associate Professor, Department of Political Science, UBC Supervisory Committee Member Peter Dauvergne, Professor, Department of Political Science, UBC Supervisory Committee Member Merje Kuus, Professor, Department of Geography, UBC University Examiner Karin Mickelson, Associate Professor, School of Law, UBC University Examiner ii Abstract 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) iii 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. iv Lay Summary Soft law’s increasing use, and the gaps in the current literature examining its prevalence and implications, call for a re-examination and further theorizing of this now ubiquitous feature of the international system. The methodological approach employed in this research will contribute to the literature by: (1) empirically accounting for the increased recourse to soft law across three issue areas—the Arctic, Outer Space, and Climate Change; (2) opening the black box of binding treaties by identifying a particular strand of soft law (i.e. “soft treaties”) and; (3) developing new insights into the role and influence of soft law. Such an analysis not only helps us gain a better understanding of the international system, as it exists today, and how it has changed, but also develops our understanding of the relationship between International Relations and International Law. v Preface This dissertation is original, unpublished, independent work by the author, Hema Nadarajah. The research reported in Chapters 3–5 was covered by UBC Ethics Certificate number H18-01620. vi Table of Contents Abstract ......................................................................................................................................... iii Lay Summary .................................................................................................................................v Preface ........................................................................................................................................... vi Table of Contents ........................................................................................................................ vii List of Tables .............................................................................................................................. xiv List of Figures ...............................................................................................................................xv List of Abbreviations ................................................................................................................. xvi Acknowledgements .................................................................................................................. xviii Dedication ................................................................................................................................... xxi Chapter 1: Introduction ................................................................................................................1 1.1 Introduction ..................................................................................................................... 1 1.1.1 Argument in Brief ................................................................................................... 3 1.1.2 Brief Outline of Dissertation ................................................................................... 6 1.2 Argument ........................................................................................................................ 8 1.2.1 Defining Soft Law................................................................................................... 9 1.2.2 Explaining Soft Law’s Pervasiveness in the International System: More Than Just the Uncertainty of Knowledge? ............................................................................................ 10 1.2.3 Consequences of the Increase: Egalitarian or Tool for the Powerful?.................. 15 1.2.3.1 A Non-Linear Evolution of International Law ................................................. 16 1.2.3.2 Complacency Stemming from Institutional Design .......................................... 17 1.2.3.3 Path Dependency to Cooperate within Discrete Areas ..................................... 18 vii 1.2.3.4 Opportunities to Forum Shop Increase ............................................................. 19 1.3 Methodology ................................................................................................................. 19 1.3.1 Overview ............................................................................................................... 19 1.3.2 Case Study Selection Criteria ............................................................................... 21 1.3.2.1 Case Studies ...................................................................................................... 24 1.3.2.2 Regime Complex as a Systemic Tool ............................................................... 26 1.3.3 Methodological Tools ........................................................................................... 28 1.3.3.1 Quantitative Methods ........................................................................................ 28 1.3.3.2 Qualitative Methods .......................................................................................... 29 1.3.3.2.1 Legal Text Analysis .................................................................................... 30 1.3.3.2.2 Informal Interviews and Discussions .......................................................... 30 1.3.4 Limitations ............................................................................................................ 31 1.4 Conclusion .................................................................................................................... 32 Chapter 2: Conceptualizing Soft Law ........................................................................................34 2.1 Introduction ................................................................................................................... 34 2.2 The Soft Law Literature ................................................................................................ 35 2.2.1 Soft Law Finding its Place within the Literature .................................................
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