Ways to avoid deadlock: soft law

Okay, the last few weeks have been a cornucopia of distractions from actual dissertation progress, but let's get back on the horse.

My interest right now is in deadlock - situations where treaties can't be reached because parties to the negotiations simply have differing interests or desires - because I think I'm working toward a dissertation that's about how to overcome deadlock.

One general category of strategies essentially involves watering down the agreement to avoid controversy. Armin Schafer (2006) discusses one example of this: soft law, which is to say, agreements that aren't binding, don't delegate any authority (other than authority to monitor), and don't entail sanctions if nations don't follow through. Schafer is specifically discussing multilateral surveillance, in which countries don't agree to binding policy, but do agree to let each other (or a supranational third party) monitor what they do in the relevant policy space. This monitoring leads to regular rounds of evaluation and recommendations (again, non-binding). It basically gives parties an opportunity exercise recurrent pressure and persuasion on each other in the pursuit of convergence or movement toward a desired common policy, without putting countries in a position of having to agree up front to anything they don't want to do.

This interested me in the context of climate change because it's a tactic that largely hasn't been tried (arguably, the Kyoto Protocol's structure, in which developing countries are encouraged to do all they can and set non-binding or aspirational internal goals, is a step in this direction, but to date it hasn't been matched with any mandated monitoring by external parties - though recently such monitoring has been a subject of negotiation, so perhaps this is coming). But I think it suffers from two problems.

First, I think to work, the parties involved need some level of general friendliness and common overarching goals (even if they disagree on best practices or specific objectives); and I believe they need to have a mutual sense of subscribing to the same general terms of debate and accepted policy space (for instance, countries in the EU do, I think, have a general sense of there being an accepted spectrum of reasonable policy options based on a very general agreed-upon view of how economics work - even if individual countries may fall further toward liberalization or socialism on the spectrum). I don't think either of these conditions hold between the developed and developing nations in the climate issue area.

Second, as Schafer himself notes, "international organisations do not introduce multilateral surveillance because of its proven effectiveness but rather when no substantial agreement is obtainable." (207) In other words, we don't necessarily know that this will work; so if, as I suggest, conditions aren't well-structured to make this strategy viable, it's not really clear that this type of agreement is better than no agreement at all (except insofar as it serves as a face-saver to the parties involved).