Shifting Sands: Power, Uncertainty and the Form of International Legal Cooperation

This Article argues that the form of international agreements — binding hard law agreements versus non-binding soft law agreements — can be partially explained by states’ interests in promoting renegotiation in the presence of uncertainty and shifting power. I make this argument in three steps. First, I explain that states regularly use unilateral non-compliance as a renegotiation strategy. Second, I argue that making an agreement soft facilitates this use of unilateral non-compliance. Third, I analyze the conditions — uncertainty characterized by common interests (but not uncertainty characterized by distributive concerns) and shifting power — under which facilitating renegotiation through soft law will appeal to states. In particular, I argue that in the presence of these conditions preventing renegotiation creates long-term costs for states that can inhibit short-term cooperation. In effect, under these conditions the shadow of the future can inhibit cooperation, rather than support it as is conventionally thought. These conditions are common to many major contemporary subjects of international cooperation in a way they were not during the latter half of the twentieth century, partially explaining the increased importance of soft law to contemporary international governance.