Bad men v. soft law: Transnational terrorism and the global aviation security regime; an exploration into the theoretical contribution of 'speech acts' in constructivist jurisprudence

This dissertation is focused on the post 9/11 thesis that the vulnerability of the global aviation security regime is not due to the absence of authoritative rules but results from their "softness ." It is hypothesized that weak control is reflected in the difficulty of enforcing rule observance by those who are responsible for defending against terrorists, weakness in punishing those who would intentionally break the rules, and consequently a poor deterrent against "bad men" who are motivated to attack the system. Because "soft law" has been substituted for legal conventions, the international community of "good men" cannot protect its own commons from those who would destroy it.; This dissertation uses a social Constructivist approach coupled with "speech act" theory as a conceptual framework to incorporate the applicable insights from other disciplines and in-turn integrate this combination with the McDougal-Lasswell/Yale School "communicative" orientation to International Law. A key finding is that the approach to regimes themselves needs to be reassessed on several grounds: (1) Normative Regimes are not self-enforcing; observance or non-violation of a regime does not mean that it is necessarily working as an inhibition, it may only represent the inertia of "good men" waiting for the creative and hostile challenge of "bad men," including non-state actors who were not parties of an originating convention. (2) The relationship between regimes and their "legal" standing needs to go beyond "authority" and "codification" to examine the "sanctioning" power of the institutions designated as their promoters and protectors. (3) Constructivist social theory and the Yale School approach to International Law can be usefully combined---each building off their synergistic contribution while compensating for the weaknesses of the other---as a framework for addressing the future legalization of international regimes. In conclusion, "Soft law" is a useful extension of and complement to a legal regime, but, because it lacks the crucial aspect of enforcing control, it cannot substitute for it. This is particularly so when coping with "bad men" threatening the global commons rather than contributing to it.