Analyzing Soft Law and Hard Law in Climate Change

Abstract

There is a great deal of variety in the international environmental agreements that have mushroomed in past decades. These legal arrangements can be placed on a continuum from hard law – precise and legally binding treaties that oblige a behavioural change with delegated enforcement bodies – to the softest of soft law, with its vague, aspirational goals and no delegation or institutional follow-up. The legalization continuum is a more insightful starting point for analyzing international agreements than ‘bottom-up’ vs. ‘top-down’ or ‘pledge-and-review’ vs. ‘targets-and-timetables’ that are often suggested by reports and policy papers. When applying the legalization lenses to the UN climate regime, two big trends emerge. There is a notable turn toward soft law in developed country commitments in climate mitigation. In the meantime, the UN regime is becoming harder by providing greater transparency of climate actions of all major economies.

Antto Vihma has completed his Ph.D. in the University of Helsinki, Faculty of Social Sciences, analyzing effectiveness and legitimacy of international agreements. He currently works as a Research Fellow at the Finnish Institute of International Affairs.

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1 Introduction

The recent climate meetings have witnessed no shortage of political drama and many of the central quarrels have included a strong legal perspective. The UN Climate Change Conference in Copenhagen, famously, concluded in a messy final plenary, “taking note” of the Copenhagen Accord, and was followed by months of blame game. In Cancún, a package of decisions was adopted by stretching the definition of “consensus” further than ever before in the climate regime. At the latest session of the Conference of the Parties (COP) in Durban the limelight of the final political struggle was the issue of legal form, this time for a mandate to negotiate an agreement beyond the year 2020. Since COP 13 in Bali in 2007 the UN climate regime has experienced legal-political turmoil; this reality calls for policy relevant analysis of the characteristics of different legal options, their limitations and possibilities.

The increasing reliance on global regulation through diverse types of legal arrangements, a phenomenon also referred to as the “legalization” of international affairs,¹ has been interpreted as a necessary corollary to globalization.² There is a great deal of variety in the international agreements that have mushroomed in past decades. Driven by the realist challenge to prove the ability of international law to exert influence on nation states, much of the research has focused on the international agreements in their legally binding treaty form with enforcement (‘hard law’) such as the World Trade Organization, as well as on economically powerful organizations such as the International Monetary Fund and the World Bank.³ Since the early 1990s, however, increased attention has also been paid to the more amorphous, non-legally binding (‘soft law’) instruments. There is a growing body of research that studies private authority, networks, transnational standard-setting with non-state actors, and other profoundly soft modes of global governance.⁴

How should we approach soft law? As outlined above, when analyzing the current global response to climate change, we are confronted with several critical puzzles regarding international law in general. Even a cursory glance at the empirical world of global governance shows that there is considerable diversity in the legal characteristics of international agreements. How to analyze this diversity in a way that is both academically solid and relevant to the political debates in climate change? The aim of this chapter is to contribute to our understanding on this vital question.

There are broadly three main alternatives to study the legal characteristics of international agreements at the nexus of IR theory,⁵ including rationalist, social constructivist, and critical formalist.⁶ The orientation in this essay is influenced to a great extent by rationalist scholars and especially the special issue of International Organisation that provided a definition of “legalization” and kick-started the ensuing academic debate on that approach.⁷ The legalization school argues that international agreements can be placed on a continuum from hard law – precise and legally binding treaties that oblige a behavioural change with delegated enforcement bodies – to the softest of soft law, with its vague, aspirational goals and no delegation or institutional follow-up.⁸ From this point of view it is possible to further analyse the politics of institutional choice in the fragmented international legal order.

In the field of environmental politics, major multilateral agreements are commonly expressed in legally binding treaty form as “conventions” and “protocols” to those conventions.⁹ For example the ozone regime,¹⁰ biological diversity regime¹¹ and climate regime¹² include provisions for signature, ratification, accession, approval, and withdrawal recognized by international treaty law and customary law as a means of formalizing the consent of a state to be bound. These treaties have been complemented with soft law that exists outside their umbrella and soft law that exists within these regimes. In global climate governance, there has been a broader trend of States negotiating minilateral, non-legally binding agreements outside of the United Nations Framework Convention on Climate Change (UNFCCC). This trend gained momentum around 2005 and includes agreements that focus on the implementation of activities¹³ as well as agreements that focus on political declarations and guidance.¹⁴ Second, soft law arrangements have emerged from within the UN climate regime, as the prospects for a legally binding protocol to include other parties than European countries have become more and more daunting for the 2012–2020 period in the climate regime. Also the mandate for the post-2020 agreement, preliminarily decided in the 2011 Durban meeting, may well yield an outcome that is considerably softer than the Kyoto Protocol architecture (see below). Furthermore, already the operationalization of the legally binding Kyoto Protocol relied considerably on the decisions of the Conference of Parties serving as the Meeting of the Parties to the Kyoto Protocol (COP/MOP), which can be seen as a type of soft law.¹⁵

I will first provide an overview to the concepts of hard and soft law, and from there move on to present the main theoretical insights to these concepts. The focus is on the legalization approach and the critique it has faced during the last decade. Applying the legalization approach, I present some insights into major trends within the UNFCCC negotiations. Lastly, some conclusions are drawn.

2 Analyzing Soft and Hard Law

2.1 The Legalization Continuum

For the term hard law, which naturally was not referred to as ‘hard’ before the emergence of soft law, there are relatively widely accepted legal definitions, including on its sources (treaty and custom), and the implication of the general obligation imposed on states (pacta sunt servanda) to follow them. The well-established category of international customary law emerges from state practice and is in many cases not explicitly designed or formally codified. Therefore, it is excluded from further discussion in this essay.

The early discussions on soft law in the international sphere date back to the late 1970s. At that time the term was usually placed in quotation marks.¹⁶ By the late 1980s and early 1990s, the concept had gained momentum,¹⁷ and the analysis not only recognized and described an empirical phenomenon, but also reflected on its implications against the binary terms of legal formalism (legal/illegal; binding/non-binding), and to the great disappointment of formalist-oriented scholars, “in doing so ended up rejecting the binary code of law altogether”.¹⁸ Also in the contemporary literature the term soft law is on many occasions defined in binary terms, and usually in terms of what it is not. Soft laws are not legally binding by themselves, they are not in treaty form, and they do not belong to the category of customary law.¹⁹

The essential issue on which there is considerable disagreement is whether it is possible and/or useful to make this kind of binary divide between hard and soft law. In the formal view an international agreement is either international law or it is not; if a “soft norm meets the requirements of the doctrine of sources of international law, it is hard law”.²⁰ Several analysts in a leading volume on soft law edited by Shelton subscribe to this viewpoint, in which soft law means “normative agreements that are not legally binding”.²¹ Another perspective is presented in the same volume by Chinkin, who frames soft and hard law in a hierarchy in a descending “hardness” of laws, including legal soft law (imprecise hard law); secondary or delegated soft law (which includes the “statements and practice that develop around a treaty to supplement or correct the text”); and non-legal soft law (resolutions, declarations, the output of intergovernmental conferences, etc.).²²

The continuum approach to international legalization, of which Chinkin’s categories are a variant, is supported by many rationalist scholars. For these analysts, the whole sanctity of “bindingness” in international law is a somewhat misleading hyperbole.²³ International legalization offers decision-makers many shades of grey instead of a clear black and white distinction between binding and non-binding, and this is not to be seen normatively as a bad thing. A case in point is that traditional and formal hard law treaties may be so generally worded as to be devoid of legal content – the category referred to by Chinkin as “legal soft law”.²⁴ Also many constructivists, as well as “realist” legal scholars, emphasize the “law-in-action” as opposed to “law-in-books”, noting that domestic laws also vary considerably in their real-life bindingness, that binary distinctions are not useful,²⁵ and even accuse formalist scholars of being guilty of “elite ignorance” and “non-knowledge of the social”.²⁶

In their seminal article Abbott, Keohane, Moravcsik, Slaughter and Snidal elaborate on their factors of “hardness” for international law.²⁷ They pronounced three criteria: providing binding obligation, precise wording, and a degree of delegation. If international agreements are weakened along these dimensions, they enter the realm of soft law. Obligation means that the behaviour of actors under the treaty is subject to change and scrutiny under the general rules, procedures, and discourse of international law. Precision indicates that “rules unambiguously define the conduct they require, authorize, or proscribe”, a particularly important feature of law at the global level, as laws and rules are usually created consensually by states and interpreted afterwards by those same states. Delegation gives a third party some level of authority to implement and interpret the rules and to resolve disputes.²⁸

The critical formalist viewpoint regards international law as a clear, binary choice between something binding, which is law, and something non-binding, which is not law. In this view, the concept of soft law and its characteristics are not interesting,²⁹ and/or not desirable.³⁰ However, from an ex ante point of view of the actors, differences in legal characteristics offer the decision-makers room for manoeuvring, as different legal characteristics involve different costs and benefits. International agreements usually have both hard and soft elements³¹ and do not constitute “sharp dichotomous choices” for decision-makers but rather “choices of various strategies, or combinations of strategies”.³² Hard and soft law may also act as mutually supportive or as competing strategies; law is not only a facilitator of social order, but also a tool advanced by actors looking to fulfil their aims.³³ This is especially the case in the sphere of global governance, with its fragmented nature, lack of clear hierarchy and lack of a final institutional arbiter (a supreme court). Also, soft law regimes may be “hardened”, for example with links to other regimes, while hard law regimes may be “softened” with ambiguous paragraphs or decisions.

Fig. 7.1

The figure illustrates the continuum of international legalization, based on the criteria of precision, obligation, and delegation (Figure 7.1 is from Sylvia I. Karlsson-Vinkhuyzen and Antto Vihma, “Comparing the Effectiveness and Legitimacy of Global Hard and Soft Law: An Analytical Framework”, 3 Regulation & Governance (2009), 400, at 402)

The exploration of the hard and soft law landscape results in a long continuum, “from hard law through varied forms of soft law, each with its individual mix of characteristics”.³⁴ Hard law and soft law are useful concepts as end points of the continuum, but a systematic and policy-relevant evaluation of law needs to pay attention to the diversity along the continuum (Fig. 7.1). However, while negotiators draft legal arrangements of descending or ascending hardness, there is one strong element which is not amenable to flexibility: the decision on whether to conclude a ratifiable treaty or not. This is a profoundly binary decision.³⁵ If the intergovernmental negotiations result in a ratifiable treaty, it will go through procedures which are determined in the national constitutions.

In the climate regime, one of the main arguments for governance by COP decisions is that they do not, an sich, require ratification. However, in several countries, the content of an international instrument – rather than its name or formal status – determines the legal procedures through which it must be transposed into national legislation. This means that for many countries than the more substance is put into COP decisions, the more likely they are to require ratification in accordance with national constitutional requirements. In some key countries, however, the form and name of the agreement might make a remarkable difference. Globally the most crucial implication of the ratification requirement probably is the advice and consent procedure and the two thirds majority by which the US Senate has to consent to international agreements signed by the US executive branch. This has effectively prevented most environmental treaties from being implemented into US domestic legislation. A recent report sheds light to the status of ten pending environmental treaties – half signed by Democratic presidents and half signed by Republican presidents – which have been pending an average of 13 years, awaiting ratification.³⁶

Focusing the analysis on the legal form only does not seem to provide answers to critical puzzles. Many practitioners and academics alike assume that a legally binding form would have a positive effect on compliance; however, available evidence does not univocally support this proposition.³⁷ From a rationalist point of view, states and other international actors utilize hard law to order their relations, because it helps to reduce transaction costs, strengthen the credibility of their commitments, expand their available political strategies, and resolve problems of incomplete contracting. The hard law path, however, comes at a significant cost, as hard law restricts actors’ behaviour and sovereignty.³⁸ The rationalist paradigm sees that the advantage of soft law is that it is less costly in terms of the sovereignty of states – a key theme in this literature is that soft law involves less negotiation costs, as states exercise more caution in drafting hard law due to greater consequences of a subsequent violation.³⁹ The other side of the coin is that soft law arguably represents a less credible commitment to the issue at hand than hard law. In the face of serious global risks such as climate change, many would argue that the virtue of credible commitments is worth significant costs, given the nature and limitations of the non-hierarchical and fragmented international legal order. One virtue could the formality of reciprocal expectations, that could, perhaps, build trust and thus enable greater ambition. Secondly, formalizing substantive and procedural rights and duties could in turn elevate the position of smaller actors, which in the case of climate change could also have implications on the ambition level. Many civil society groups such as environmental NGOs fear that soft law arrangements can be used cynically, to “take the heat off” political leaders, allowing symbolic but empty promises to substitute for real action.⁴⁰

The constructivist paradigm has focused on “appropriate behaviour”, which is intimately connected to the construction of the identities of states. Changes in state behaviour can thus occur through processes of socialization and the expansion of norms, ideas and principles. Constructivist-oriented legal scholars quite frequently take this kind of approach to international law, whether discussing “the active role of the regime in modifying preferences”,⁴¹ “internationalization processes” that work over time,⁴² or “the compliance pull” of international law that is deemed legitimate.⁴³ From this perspective, the soft law approach might have advantages in promoting norm diffusion and learning, allow a wide spectrum for deliberation in governing,⁴⁴ and generate shared norms and a sense of common purpose and identity.⁴⁵ As constructivists analyze international law in terms of values and the formation of state identities, the world no longer needs to be thought of in terms of power and interest. This idealist perspective alone, I would argue, makes the analysis susceptible to classic criticisms which realist scholars of international relations originally levelled at international law.⁴⁶

This chapter suggests a middle path between constructivist and rationalist paradigms.⁴⁷ I follow the argument that there is evidence that decision-making related to creating and complying with international law is influenced by drivers from both paradigms,⁴⁸ as the interest-based and normative strategies are deeply intertwined.⁴⁹ In the case of environmental regimes, utilitarian motives and normative motives are most often both at work, and simultaneously so.⁵⁰ Furthermore, both approaches can be improved on the ground “by carefully incorporating the arguments made by the other” in the analysis.⁵¹ It is also worth re-emphasizing that the continuum approach resonates well with the view of the practitioners, namely the negotiators who craft multiple wordings ascending in various ways from “binding” to “non-binding” language. This ex-ante viewpoint of the multilateral negotiations is strikingly different from the binary distinction picture painted by some critical formalist scholars of academic literature.⁵²

2.2 Criticism of Legalization

The legalization continuum approach has sparked notable critical comments from two opposing camps – the formalist-oriented legal scholars who guard the sanctity of the binary character of law,⁵³ and several social constructivist legal scholars.⁵⁴

The constructivist critique is aimed at the “narrow conception of law”, rooted in “positivism,” “formalism,” and “Western tradition”.⁵⁵ For many constructivists, law is a very broad concept, and in the end, law is “whatever people recognize and treat as law through their social practices”.⁵⁶ According to this critique, focusing on legalization variables leads to diminished attention paid to important topics such as legitimacy, from which international law gets its “force” in a non-hierarchical system, and customary law, as well as the process of law. The constructivist scholars call for more focus on identities as generators of interest, and research which illuminates how identities are shaped through social interaction.⁵⁷

Certainly, taking a profoundly sociological view on law, the legalization approach can also seem formal and alien to the developments on the ground, in the real world where law operates which is what most analysis is ultimately interested in. I also share the constructivist critics’ view that legitimacy is a central concept, and furthermore, it is deeply intertwined with questions of effectiveness and compliance. In spite of this, I argue, the legalization approach highlights important aspects about the making and implementation of international law, and serves as a useful starting point for analysis.

The second branch of criticism stems from the directly opposing group to constructivist perspectives, namely scholars emphasizing critical formalism. There certainly is no love lost in Koskenniemi’s assessment of constructivist research, which he sees as “returning to analyses of international politics in terms of its rights and wrongs, good and evil” and celebrating “moral enlightenment of a new world, a universal liberal Gemeinschaft”. ⁵⁸

The formalist critique is usually aimed at ‘soft law’ in general, not only the legalization continuum approach. Although this critical viewpoint admits that soft law “may seem useful at first sight”, as soon as it is to be applied it collapses into either hard law or no law at all. Soft law is like balancing a coin on its edge; it looks good for a moment, “but as soon as you start to spend it, it will fall heads or tails”, so no continuum really exists.⁵⁹ The accusation by Klabbers is that soft law typically gets applied like hard law – especially in the EU context – with the difference being that it does not have to be accepted by “domestic democratic bodies” like formal treaties.⁶⁰ Again, in the EU context, this means a power shift towards the bureaucratic initiatives of the European Commission.⁶¹ The backdrop is about power: once you give up formalism, a chaotic state prevails, who shouts loudest wins, and legal concepts and regimes cannot be systematically analyzed.⁶²

It seems that some of the critical formalist views are laced with an overwhelming nostalgia for a more stable and simple point in time, when rules were clear, knowledge was uniform, and the road ahead was well laid out. The critique is concerned that international law is “no longer taken seriously” but is a policy option among others⁶³ (was it really ever anything else?), that soft law enables today’s power-holders to escape “democratic scrutiny” (more than international affairs did before?), and compares “fragmented order” to the times when there was no international regulation whatsoever, for instance, for environmental problems.⁶⁴

From a broader but equally critical perspective, soft law is claimed to represent fragmentation and managerialism, which leads to erosion of international law.⁶⁵ From this viewpoint Koskenniemi presents a masterful and critical reflection on the fragmentation of international law, leading to “imperial and solipsistic” sub-systems, which threaten the universalism international law ought to highlight.⁶⁶ A fundamentally “managerial” approach has emerged as international law comes to us in separate boxes, and serves an instrumental purpose for particular values, interests and preferences, such as the “European project”, “trade project” or “environmental project”.⁶⁷ Koskenniemi acknowledges that the fragmentation goes further than the differentiated soft-hard characteristics of law, and emphasizes that each subsystem of international law has a different objective, different ethos and a different “structural bias”, no matter what its legal characteristics are.⁶⁸ However, from the point of view of his critique, it is evident that soft law is a way to spread these specialized projects and their differentiation further, with a quintessentially managerial approach to law.⁶⁹ International lawyers are taught to speak of “regimes” instead of institutions and of “regulation” instead of rule, to change the language of government to “governance”, responsibility to “compliance” and lawfulness to “legitimacy”. Ultimately, international law becomes drained of law.⁷⁰

From a practice-oriented perspective this critique is problematic. First, as Koskenniemi naturally acknowledges, the empirical reality is that specialized regimes are commonplace in contemporary international law, but he argues that this is not “natural and inevitable” as many others would suggest.⁷¹ It is certainly true that the sub-areas of international law do not automatically arise from the “nature of things”, and that most real-world events and cases relate to, for example, environmental law, trade law and human rights law simultaneously. However, it is still hard to escape the increasing inevitability of such specialization and division of labour, even though its origins are a social construct and have to do with “powerful interests”.⁷² While agreeing with many of the problems raised by Koskenniemi, his criticism is on a higher level of abstraction than this essay, suggesting that international law should return to the “culture of formalism” and “constitutional mindset”,⁷³ universality in a Kantian sense, law as a language for the critique of power. His view is openly normative, the world as it ought to be, and, in contrast to this edited volume, he also highlights that he is ultimately not interested in architectural questions.⁷⁴ This critique thus offers few applicable tools for analyzing the architectural issues in the contemporary international legal landscape in empirical terms.

Finally, both the constructivist critique and the perspectives that emphasize formalism are connected to the broad theme of legitimacy. Constructivists caution that in the legalization approach effectiveness overrides legitimacy and, in a way, so does the broader version of formalist critique. Kantian deontological reasoning cited by Koskenniemi requires the decision-maker to focus on the morality of actions themselves, without “making principles subordinate to the end”, without deriving justification from the consequences, as values and purposes represent hubris and Schwärmerei.⁷⁵ The opposing rationalist camp follows the “consequentialist” or “welfarist” paradigm that acknowledges the priority of good over process.⁷⁶ In this rationalist view, justice is seen firstly as a matter of outcome; a political and legal decision can produce injustice, however fair the procedure is. It is in this instrumental way that specialized regimes and projects – with their faults and biases – currently are justified as legitimate.⁷⁷ In the traditional view, legitimacy is crucial in achieving state compliance and thus effectiveness. But equally importantly, effectiveness is a component of legitimacy, as the lack of acceptable performance undermines the legitimacy of the norm in the long term. This argument has been widely noted in sociology, but has not been internalized by many analysts of international regimes.⁷⁸

2.3 Hard Law-Soft Law Dynamics

The dynamic of legal characteristics operates over time. For example, an initially soft agreement may earn high enough legitimacy to be turned into hard law.⁷⁹ At the level of practical politics within the field of global environmental governance, the soft-hard law dynamics are at play in the process of operationalizing softer framework conventions into harder legal instruments and decisions through multilateral negotiations. This approach has been adopted, for example, with the ozone regime, the biodiversity regime, and the climate regime.⁸⁰

Framework conventions in international environmental law are formal, ratifiable and legally binding treaties. However, framework conventions typically do not contain clear, detailed, or specific rules that could be implemented in domestic legislation in a straightforward manner. In contrast with the generality of framework conventions, the protocols or other legal instruments developed within their regime, as well as decisions adopted by the decision-making bodies established by the regime, typically provide rules and mechanisms that are very specific.⁸¹

As is well illustrated by the legalization approach, international agreements are very varied rather than a dichotomy of two categories with different forms. Consequently, the term soft law can also be used to refer to soft provisions in “hard law” instruments. Abbott and Snidal elaborate on how states can limit their legal obligation through “hortatory language, exceptions, reservations and the like”.⁸² In practice, the soft provisions mean vague and flexible formulations in treaty texts, such as mandating a party to take “such actions as it deems necessary”⁸³ or to act in a certain manner “as appropriate”.⁸⁴ These types of provisions are also referred to as “escape clauses”,⁸⁵ or more to the point, “non-decisions”,⁸⁶ or “elements of non-commitment in commitment”.⁸⁷ Soft provisions in treaties exist parallel to hard ones, but their vagueness leaves it up to states to decide how to implement the provision. In spite of their vagueness, the principle of pacta sunt servanda applies and a treaty remains “binding” on paper, even if the chances of actual effective implementation of the provision in question are reduced by the generality of the obligation.

Soft law can bring parties to the negotiation table – under a framework convention – and involve parties in a process that leads to harder international obligations in the future.⁸⁸ From this dynamic viewpoint, the soft provisions within a regime are left open for future negotiations. Regime critics have also raised this issue in order to point out the respective lack of formalism in contemporary treaties. To agree on a framework convention is, in practice, also to agree to continuous negotiations, contextual deal striking, and bargaining of experts; and as laws do not spell out the conditions of their application in their entity, the management of a regime will have to take place by open-ended standards.⁸⁹

Constructivist-oriented scholars tend to view the framework convention approach positively, claiming that it may catalyze the dialogic process of norm-building.⁹⁰ Rationalists do not take a stand on whether this is the case, but conclude that the framework convention approach is fruitful at least in cases of technical uncertainty, where states can facilitate information generation and common understanding via clarified costs and benefits.⁹¹ The ozone regime – the Vienna Convention and its Montreal Protocol – has served as a positive example for scholars from both paradigms, both for norm internalization and monitoring, as well as cooperative research, transparency and information exchange.

The main legal-political challenge is agreeing on whether normative principles and rules are overlapping or not – does a Conference of the Parties decision or a protocol “change” or “operationalize” the framework convention? This is the delicate balancing act that the negotiations within a framework convention call for. As noted already in the 1980s by Krasner, changes in rules and decision-making procedures are “changes within the regime, provided the principles and norms are unaltered, whereas changes in principles and norms are changes of the regime”.⁹² There is a dynamic approach built into the regimes as the substantive obligations can change along the way, based on the progress of the negotiations as well as input from external processes, such as increased scientific insights into the problem that needs to be addressed, or, at least ideally, changes in the respective responsibilities and capabilities of states to address the problem. Sometimes the uncertainties related to the operationalization are also used cynically to slow down the negotiations. There are cases in which parties assume positions that are contradictory to the basic understanding of a system of negotiating a protocol and decisions on the basis of a framework convention.⁹³

International law is also influenced by horizontal interaction between hard law and soft law.⁹⁴ The commonplace viewpoint of the literature is that hard and soft law act as complements, that hard law can generate secondary or delegated soft law,⁹⁵ or that hard law linkages can indirectly harden soft law.⁹⁶ The complementary assumption has also been claimed to be biased, as Shaffer and Pollack conclude that “the scholarship has failed to address how, when and why hard law and soft law operate as antagonists”.⁹⁷ Their viewpoint is not completely original, however, as some earlier literature already suggests that emerging principles of soft law can soften existing hard law by undermining its legitimacy.⁹⁸ Although not framed in soft law-hard law terminology, the environmental regime theory is also well informed of the possible antagonist relationship between different international legal arrangements.⁹⁹

In the world of climate governance it seems reasonable to assume that the multitude of climate governance arrangements is not simply a somewhat uncoordinated group of peacefully co-existing institutional processes – instead, these elements might be used to create overlaps and to interact with intentional synergetic or disruptive consequences.¹⁰⁰ The latter is the case if the institutional overlaps result from deliberative efforts of interested parties to pursue their own objectives by creating competitive arenas, and/or opening up opportunities for strategic behaviour for those who have less interest in the problem.¹⁰¹ Based on these premises, the multitude of processes in global climate governance calls for analysis of the positions of relevant actors and mechanisms through which the influence could occur, perhaps in the footsteps of the insightful analysis by Shaffer and Pollack. Such work on the interaction between soft and hard law is, however, beyond the scope of this essay.¹⁰²

2.4 Legalization Insights to the Climate Regime

The legalization approach emphasizes the benefits and costs of different legal characteristics and thus a rationalist perspective. But clearly law also engages normative considerations. It requires commitment to a background set of legal norms – the “engagement in established legal processes and discourse”¹⁰³ or “the practice of legality”¹⁰⁴ – and provides opportunities for parties to epitomize normative values. Normative processes and interests enable laws to be effective, and also constrain the success of law. The key message of Abbott and Snidal is that the form and content of international laws are parts of the same package, the muscle of international law, into which the legalization continuum – with its variables of obligation, precision and delegation – offers an insightful analytical approach. Several other approaches are suggested to categorize between different types of law in the policy literature, such as “top-down vs. bottom-up” and “pledge-and-review vs. targets-and-timetables”.¹⁰⁵ These approaches, however, run a notable risk of being misleading. First, in the policy discourse of the UN climate regime, “pledge-and-review” is usually used to imply a very soft architecture.¹⁰⁶ However,reviewing policies, pledges, targets or obligations is actually an ambitious task for international law. The UN climate regime itself illustrates that many countries are extremely sensitive about allowing such measures to be taken.¹⁰⁷ Second, “top-down” architecture, on the other hand, risks sounding idealistic and lacking credibility in the community of practitioners. It suggests that the international community would be able to agree on the needed aggregate amount of emissions reductions and then divide the pie to different parties via negotiations. This picture is far from the reality of policy making, where countries’ emissions targets are adopted “bottom-up”, agreed upon by the domestic constituencies, and then communicated to the international arenas. The role of international negotiations considering ambition is not irrelevant but more subtle than “top-down” – it is to provide a framework of reference for the domestic politics of emissions reductions. Examples of this include the collective sense of the level of effort in Kyoto negotiations, and the 2° target and 450/550 pm targets discussed and debated in various international fora in recent years.

So what type of insights can the legalization approach give to the contemporary developments in the climate regime? The decision on legal form was one of the main political struggles in Durban COP-17. The conference resulted in Parties launching a process titled “The Durban Platform on Enhanced Action” to negotiate “a Protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all”.¹⁰⁸ The negotiations are scheduled to adopt a decision in 2015 and implement it from 2020 onwards. The compromise language “agreed outcome with legal force” cobbled together by US and Brazilian negotiators to solve a political stand-off between the EU and India does not reflexively signal a ratifiable instrument.¹⁰⁹ However, it makes a ratifiable treaty the most likely and widely expected form of the outcome for the post-2020 period.¹¹⁰

As suggested by the legalization continuum, the ratifiable versus non-ratifiable form should not be the only criterion when evaluating the legal dimension of the UN climate regime. Building on the analysis of Rajamani, there are at least two broader tendencies that are traceable at least from Bali COP-13 onwards, namely i) softer obligation and less delegation on developed country commitments and ii) harder obligation, delegation and precision on major developing country reporting and transparency. These tendencies are determining the parameters of the 2012–2020 climate regime and may well be a strong influence from 2020 onwards as well. Moreover, even if the legal form becomes “hard” as in a ratifiable treaty for the post-2020, the character of the commitments for developed countries is likely to be softer than under KP and their form more self-selected.

First, the move towards a soft law approach in the post-2012 era for developed countries not parties to the second commitment period of the Kyoto Protocol is quite evident if we use the Kyoto Protocol itself as a yardstick. There is no facilitative or punitive compliance mechanism on the Convention track of the Bali Action Plan. The mitigation by developed countries will be subject to International Assessment and Review (IAR) procedures,¹¹¹ but the scope of the “assessment” is unclear, namely whether the assessment concern the adequacy of data, adequacy of targets, or adequacy of performance.¹¹² In comparison with the Kyoto Protocol’s architecture,¹¹³ the Convention track is softer than the KP in all aspects of the legalization continuum.

The evolution towards soft law has also taken place within the Convention track since the Bali meeting in 2007, as pointed out by Rajamani.¹¹⁴ The Cancún and Durban decisions use the language of “targets” instead of “commitments” like the Bali Action Plan,¹¹⁵ and similarly they “promote comparability” instead of “ensuring comparability”.¹¹⁶ Furthermore, the Cancún and Durban outcomes essentially re-emphasize the pledges countries submitted under the Copenhagen Accord, but do this in a non-legal manner, by “taking note” of these pledges, collected in an information document.¹¹⁷ The main point is not that the pledges are nationally determined and then submitted to the international sphere – many would say that also the Kyoto commitments were in essence nationally determined and in that way “bottom-up” as noted above – but that these pledges have different conditions, base years and caveats.¹¹⁸ They are thus lacking common accounting and comparability metrics.

Second, the mitigation actions of developing countries are internationalized through increased reporting requirements and a process of International Consultation and Analysis (ICA). Although ICA is to be conducted “in a manner that is non-intrusive, non-punitive and respectful of national sovereignty”,¹¹⁹ it is a significant development on the Convention track, and has been subject to notable political controversy, both in the UNFCCC negotiations as well as in the national sphere of major developing countries, for example in the Indian Parliament.¹²⁰ Since the launch of the UN climate regime the developing countries have faced virtually no transparency requirements with any degree of international delegation: the National Communications have not been regular, they have not been designed in accordance with international guidelines, and they have been allowed to use ancient data. Comparing this long time status quo to the biennial reporting with 4 years old data and an ICA procedure, all envisioned in the Cancún and Durban decisions, shows a significant step forward in the hardness of the 2012–2020 climate regime.

While agreeing to the main conclusions of Rajamani, it seems that in some parts of her analysis, the formal and political meanings of “developing countries” overlap slightly. Formally, as is well known, there is very little differentiation among the developing countries (non-Annex I countries) in the climate regime. From this perspective it is plausible to conclude growing parallelism among developed and developing countries. Politically, however, the pressure for parallelism in reporting and legal form has not been on “developing countries” but on certain major economies, China ahead of others. Secondly, Rajamani takes a firm stand that in Bali the (major) developing countries agreed only to measure, report and verify internationally supported actions. However, most developed countries had an interpretation of the Bali Action Plan that the transparency requirements covered also unsupported domestic actions.¹²¹ At least the paragraph in question has been open to different interpretations and quite a lot of political controversy, as witnessed already in the Bali final plenary, where India inserted a carefully placed comma to the text and South Africa clarified their interpretation of the text to overcome objections from the US.¹²²

3 Discussion and Conclusions

Crafting legal arrangements is a central tool in global governance, whether we look into the issue areas of trade, security, human rights, or the environment. The types of norms that have been generated during the past decades have very different legal characteristics. The aim of this essay is not to have the final word on the strengths and weaknesses of hard and soft law, but to suggest a way for further analysis that would be academically rigorous as well as politically relevant.

The law that is designed as an instrument of global governance can be placed on a continuum from ideal hard law – precise and legally binding treaties with delegated enforcement bodies – to the softest of soft law, with its vague, aspirational goals and little or no institutionalized follow-up. The legalization continuum, I argue, is a more insightful starting point for analyzing international agreements than “bottom-up” vs. “top-down” or “pledge-and-review” vs. “targets-and-timetables” that are often suggested by reports and policy papers.

To date, little work has been done on combining constructivist and rationalist paradigms in the analysis of hard and soft law,¹²³ although there seems to be considerable value in incorporating arguments from both paradigms into the research framework. I argue that we should remain agnostic as to which theoretical camp most accurately captures the true nature of hard and soft law and their relevant qualities, and approach the question on a contextual basis. In sum, different legal characteristics have advantages and drawbacks in different contexts, whether framed in rationalist or constructivist terms. The qualities of global hard and soft law are largely based on specific, political and functional questions, such as the North–south politics, the domestic/foreign policy interface, and the institutional interaction. It seems that the issues of legal character, effectiveness and legitimacy cannot and should not be solved in an abstract or general way. This echoes the views of Young, King and Schroeder, who summarized the literature on environmental regimes and recommended a “diagnostic approach” to designing specific institutions rather than “a search for design principles or generalizations” applicable to the full range of international environmental agreements.¹²⁴ The debate should be firmly grounded in the context of a particular policy domain, its incentives, discourses and operational capacities. An almost inescapable context for the effectiveness and legitimacy of global environmental governance is, however, the North–south politics, which have received relatively scant attention in some more theoretical analyses of global law and its implications.

The UN climate negotiations can be framed as efforts to operationalize the soft law of the framework convention into decisions or legal instruments, with a greater degree of obligation, precision, and delegation. From this legalization perspective there indeed seems to be a notable drive towards soft law within the climate change regime. This is not only due to the form of the agreement that is relying on COP-decisions that “take note” of parties’ actions and not a ratifiable protocol, but to the broader tendency towards less obligation, precision and delegation for developed country parties in mitigation. However, there is another broad tendency, which is scaling up the transparency requirements of (major) developing countries. For the first time a delegated and precise reporting system is being agreed upon, and although the first report is framed in voluntary terms, this is not a minor development. The legal form of the post-2020 agreement is likely to continue to draw the big headlines, but in the meantime, the UN regime is becoming “harder” by providing greater transparency of climate actions of all major economies. The caveat is that while mitigation commitments and transparency are central issues in the climate negotiations, they do not paint a complete picture of the regime. Alongside them there are many other interesting developments, including Parties’ commitments in long-term financing and the evolution of technology, adaptation and REDD+ mechanisms. There are signs of a process of stronger institutionalization and hence delegation in these areas, with new decision making bodies with a mandate from the COP and limited membership. Simultaneously, the common design standards are lacking in market mechanisms and, above all, the commitments that generate demand for credits. There remains a need to look closer into these specific issue areas, as well as the regime functions as a whole.

In the context of growing parallelism, I would be tempted to argue that a trade-off between hard law characteristics and effectiveness of the regime may well be present. The political context of parallelism and the drive towards “hard law” outcomes will make states hyper-cautious about what they commit to, potentially leading to decreased ambition, and possibly, an absence of a major player such as the US or China or Russia. This is especially the case where the legal form of the obligation is concerned, but may well surface also with more innocent attempts to delegate authority away from parties to the international sphere.

One suggestion to unravel the complex dynamic of effectiveness and legitimacy is to focus on enhanced decision-making in the UNFCCC.¹²⁵ The legal vacuum of unadopted Rules of Procedure and pushing the limits of “consensus” do not seem like sustainable strategies.¹²⁶ The idea of voting has recently been floated by several scholars.¹²⁷ This is often justified by highlighting the problems of a consensus-based decision-making structure: “Moving the climate change agenda forward multilaterally among 195 parties to the UNFCCC is proving to be a serious challenge […] The turn today toward a multipolar world indicates that approaches based on consensus are unlikely to produce results”.¹²⁸ While procedural reforms do not offer “low hanging fruits” in the short term, strengthening the basis of decision-making for the future of global climate governance would be a productive exercise that could, in time, contribute to a positive cycle of increased legitimacy and effectiveness.

In general, the constructivist point of view does not see hard law, or credible compliance and enforcement systems, as key motivators for states in international regimes, as measuring the utilitarian value of compliance and non-compliance is not the central issue. For rationalists, regimes as “information providers” have been a centrepiece for research,¹²⁹ as compliance mechanisms in a broader sense begin with observability. More empirical research is needed on which functions can be effectively covered with soft law and which would require a hard law approach. These insights would, in turn, feed back into the more theoretical debates between rationalists, constructivists and the critical formalist scholars.

In Koskenniemi’s view, the practice-oriented approach and emphasis on the contextual – as argued for in this essay – can turn international law into an apologist deference to power. In his work, “apology” has at least two distinct meanings, namely referring to international law as being descriptive of what states do, and international law as reflecting the wishes or values of its subjects (which might not be “good”).¹³⁰ From the viewpoint of this essay, which is more open to rationalist argumentation than Koskenniemi’s deconstruction, only the first is a concern. It is, in essence, the classic realist challenge. Future research would duly benefit from answering the call by examining international agreements with a legalization approach, from a broad and practice-oriented perspective.