Abstract
The study of hard law and soft law in international environmental cooperation has mainly focused on why, and under what conditions, states choose one form of law in preference to another. This article develops an analytical framework for exploring the consequences of such choices. This framework is applied to implementation of international nutrient commitments in Norwegian agriculture from 1987 until 2007. Agriculture is the most important source of nitrogen inputs and eutrophication problems in the marine environment in Norway and Europe. It is concluded that, first, the consequences of hard and soft international law depend heavily on how they interact with changing national conditions. Some of these conditions can be deliberately changed to facilitate synergetic interaction between national conditions and international law. Secondly, under favorable conditions soft law can have a significant impact even when costly action is required, and resistance from target groups are strong. These observations are particularly interesting in light of the recent decision to end the soft law North Sea Conference process.
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Notes
Eutrophication resulting from nutrient emissions can lead to various problems such as accelerated growth in (toxic) algae and oxygen depletion, disturbing the balance of organisms present in the water reducing the quality of the water concerned.
One could argue that there are two tracks in the making of a new climate regime. The most important is the UN track which follows a ‘hard law’ logic according to which negotiations aim for a legally binding international treaty. The other non-UN track follows a ‘soft law’ logic (Lawrence 2007).
Note that the definition of soft law and hard law varies widely in the literature. Abbott and Snidal (2000, p. 421) refer to hard law as binding obligations that are precise and that delegate authority for interpreting and implementing the law. The ‘hardness’ of law can differ along these dimensions. Raustiala (2005) refers to binding and non-binding law as contracts and pledges, arguing for a sharp distinction between them.
The OSPAR Convention replaced the Paris Convention. The Paris Commission, based on the 1974 Paris Convention on pollution from land-based sources, adopted various recommendations where the 50% 1987 NSC target on nutrients is included. Even though the Paris Convention was legally binding, recommendations adopted by the Paris Commission were not binding.
The Urban Waste Water Directive (91/271/EEC) was also adopted in 1991.The Urban Waste Water Directive regulates wastewater, which is another major source of nutrient emissions.
EU policy did not figure prominently in the 1992 Norwegian North Sea Action Plan on nutrients.
The qualifier ‘in the order of’ 50% was deleted in the national goal.
The ‘sensitive area’ formulation included in the NSC Declarations was identified as the stretch of the coast between the Norwegian-Swedish border and Lindesnes at the southern tip of Norway.
When the 1989 tax on commercial fertilizer was introduced, it was agreed that the level should be 50% (or 3 NOK per kg). In the final negotiations between the environmental and agricultural authorities the tax level was reduced to one-third of this level (OAGN 2000–2001, p. 42). Environmental authorities and various expert commissions have since argued that the tax level was too low to affect consumption of fertilizer.
The Ministry of Environment did not produce any White Papers directly on the marine environment around this time. See: http://www.regjeringen.no/nb/dep/md/dok/regpubl.html?id=698, retrieved July 2, 2009.
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The author would like to thank Kristin Rosendal, Olav Schram Stokke, Steinar Andresen, and two anonymous reviewers for helpful comments.
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Skjærseth, J.B. Exploring the consequences of soft law and hard law: implementing international nutrient commitments in Norwegian agriculture. Int Environ Agreements 10, 1–14 (2010). https://doi.org/10.1007/s10784-009-9105-y
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DOI: https://doi.org/10.1007/s10784-009-9105-y