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International Environmental Standards and the Soft - Hard Law Binary Approach in the Doctine of Legal Formalism

Student: Ekaterina Makarova

Supervisor: Vera Rusinova

Faculty: Faculty of Law

Educational Programme: Law of International Trade, Finance and Economic Integration (Master)

Year of Graduation: 2021

Environmental problems are one of the major challenges the humanity faces in the 21st century. Many of these problems are caused by the inefficient governance of common-pool resources and the gaps in international legal regime in this field. At the national level, governance of common-pool resources is operated through the mechanisms of hard law, but it is difficult to expand this practice to the international level – due to the Westphalian dilemma: impossibility to coerce governments to take any commitments because of sovereignty principle. The harder legal instruments are the less would be the willingness of states to join correspondent legal treaties. On the contrary, the mechanisms of soft law are more acceptable for the parties and involve them better to the international law regime. However, they are not sufficiently efficient for solving global environmental problems either as they don’t guarantee the execution of agreements by their parties. The goal of this study is to find the optimal balance of hard and soft law instruments in governing the global common-pool resources considering the principles of the legal formalism concept. This approach is based on the provision of hard law status to systemically important principles of international environmental law while more specific elements of regulation may have a form of soft law. This study uses inter-disciplinary methodology including methods and concepts from law, economics and international relations. Along with the analysis of legal documents and existent international environmental treaties (in the area of climate change mitigation, regulation of persistent organic pollutants, governance of transboundary watercourses etc.) the game theory analysis is used aimed at defining the optimal strategies of the parties of international treaties, based on the instruments of hard and soft law.

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