Soft Law, Solid Implementation? The Influence of Precision, Monitoring and Stakeholder Involvement on Norwegian Implementation of Arctic Council Recommendations

• Author: Ida Folkestad Soltvedt
• Pages: 69-90

Soft Law, Solid Implementation? The

Influence of Precision, Monitoring and

Stakeholder Involvement on Norwegian

Implementation of Arctic Council

Recommendations

Ida Folkestad Soltvedt*

Research Fellow, Fridtjof Nansen Institute (FNI), Norway

Abstract

The Arctic Council has been criticized for its lack of legal status and, consequently, the supposedly

low level of implementation among member states. Studying Norwegian implementation of six Arctic

Council recommendations, this article challenges that view. I start by assuming that international

law is not binary, that soft law is not a uniform phenomenon, and that soft law recommendations

may entail certain characteristics*precision, monitoring, and stakeholder involvement*that can

enhance their implementation nationally. Additionally,malignancy*an important barr ier to national

implementation*is taken into account. The Norwegian authorities have implemented several of the

recommendations studied, and the characteristics are found to have a bearing on the outcomes.

However, the absence of malignancy stands out as the most significant condition for achieving

national implementation.

Keywords: Arctic Council;international law;soft law;national implementation;Norway

Responsible Editor: Kristoffer Svendsen, Post-doctoral fellow, K.G. Jebsen Centre

for the Law of the Sea, Faculty of Law, University of Tromsø, Norway.

Received: November 2016; Accepted: April 2017; Published: May 2017

1 Introduction

During recent debates on the Arctic Council, scholars have highlighted the Council’s

putative weakness as a soft law body, and generally questioned its effectiveness.

1

This criticism is largely rooted in a lack of legal bindingness: the Arctic Council

does not hold the power to contract or enforce legally binding agreements, nor to

apply sanctions against its member states. Its recommendations are only politically

binding, whereas domestic follow-up is voluntary. Accordingly, it has been claimed

that few incentives for national implementation exist.

*Correspondence to: Ida Fokestad Soltvedt, Fridtjof Nansen Institute (FNI), Norway. Email:

ifs@fni.no

Arctic Review on Law and Politics

Vol. 8, 2017, pp. 7394

#2017 Ida Folkestad Soltvedt. This is an Open Access article distributed under the terms of the Creative Commons

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Citation: Ida Folkestad Soltvedt. ‘‘Soft Law,Solid Implementation? The Influence of Precision, Monitoring and Stakeholder

Involvement on Norwegian Implementation of Arctic Council Recommendations.’’ Arctic Review on Law and Politics,

Vol.8, 2017, pp. 7394. http://dx.doi.org/10.23865/arctic.v8.639

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However, only a few studies have examined how the Council’s recommendations

actually affect national processes,

2

or*more broadly*the positive effects of soft law on

national implementation. This article explores the extent to which the Norwegian autho-

rities have implemented recommendations from two of the Council’s foremost policy

contributions: the 2004 Arctic Climate Impact Assessment (ACIA), which put climate-

change adaptation on the global agenda; and the 2009 Arctic Marine Shipping Assessment

(AMSA), the first and only report to cover shipping throughout the Arcti c region.

3

I start by assuming that international law is not binary, that soft law is not a uniform

phenomenon, and that soft law recommendations may entail certain characteristics

that enhance their domestic implementation. In particular, I ask how precision,

procedures for monitoring state behavior and the involvement of stakeholders

in norm development can act as drivers of national implementation. In addition,

malignancy*an important barrier to national implementation

4

*is taken into

account. Data from interviews and documents indicate that these first three

characteristics are relevant to Norwegian implementation, i.e. translating recommen-

dations into action at the national level. However, the absence of malignancy appears

to be the most significant condition for achieving implementation.

In the following, I start by clarifying the concept of implementation, and

then present my fundamental arguments and how the selected characteristics are

expected to affect national implementation. Subsequently, I examine whether the

recommendations*three derived from the ACIA and three from the AMSA

5

*have

been implemented, and how their characteristics, as well as malignancy, alone and in

interaction, have affected varying outcomes.

2 What does national implementation entail?

International commitments usually require behavioral change at the domestic

(national) level. National implementation concerns the steps taken to induce those

changes.

6

In accordance with this understanding, national implementation is

commonly defined as the process whereby international commitments are translated

into action at the domestic level, attempting to steer actors towards specific behaviors.

7

The definition applied in this article rests on the same pr inciples. Specifically, I take

national implementation to include domestically conducted programs or actions in

response to soft-law recommendations of the Arctic Council. Indicators of such

programs or actions are administrative measures and/or budget allocations. Further,

national programs and actions may be initiated in order to influence other states’

policies through international organizations and institutions. According to the defi-

nition applied here, in order to be considered as national implementation, such chains

of events must result from the recommendation in question, and induce certain

changes at the national level, before ‘‘bouncing’’ back to the international one. At the

international level, this should result in Norwegian initiatives and/or projects being

carried out within the relevant organization.

This concept of implementation is closely linked to causality, implying that outputs

(in this case, Arctic Council recommendations) affect the behavior of relevant

actors, and that it is possible to trace causal mechanisms to show an actual link

Ida Folkestad Soltvedt

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