Hema Nadarajah
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 paper takes this oversimplified analysis further by examining the contemporary changes to the international system such as the number and diversity of state and nonstate actors as well as their relative influence through a close examination of the Arctic and climate change.
This paper makes three fundamental contributions. Firstly, it proposes that soft law instruments would be best categorized as binding or non-binding. Binding soft law instruments, called “soft treaties”, fall within the twilight zone of binding, yet soft instruments that contain little to no new obligations for its Parties. Secondly, it empirically establishes that soft law instruments are becoming more pervasive than previously claimed in the literature. In order to identify reasons for its prevalence, this research examines a sample of instruments using mixed methodology encompassing legal textual analysis and a review of the international relations and international law literature. Thirdly, it examines the potential consequences of this contemporary global policy paradigm that is rooted in soft law and its variants. The following implications of soft law’s prevalence were identified within the cases of the Arctic and climate change: (1) written international law is increasingly adaptable and follows a non-linear evolution; (2) complacency could stem from institutional design established by soft law; (3) path dependency to cooperate within discrete areas could emerge through the iterated negotiation of soft law instruments, despite diplomatic challenges faced elsewhere; and (4) more opportunities for states to forum shop may arise due to soft law’s prevalence within each regime complex.
