Legally Binding versus Non-Legally Binding Instruments

Forthcoming in: Scott Barrett Carlo Carraro and Jaime de Melo, eds., Towards a Workable and Effective Climate Regime, VoxEU eBook (CEPR and FERDI)

14 Pages Posted: 26 Aug 2015 Last revised: 20 Nov 2015

See all articles by Daniel Bodansky

Daniel Bodansky

Arizona State University Sandra Day O'Connor College of Law

Date Written: August 31, 2015

Abstract

Although it now appears settled that the Paris agreement will be a treaty within the definition of the Vienna Convention on the Law of Treaties, debate continues over which provisions of the agreement should be legally binding. The legal character of the Paris agreement and its constituent parts may matter for several reasons, even in the absence of any enforcement mechanisms. Formulating an agreement in legally binding terms signals stronger commitment, both by the executive that accepts the agreement and by the wider body politic, particularly if domestic acceptance requires legislative approval. It can have domestic legal ramifications, to the extent that treaties prompt legislative implementation or can be applied by national courts. And it can serve as a stronger basis for domestic and international mobilisation. But, despite much empirical work over the past two decades, it has proved difficult to assess the strength of these factors in promoting effectiveness, both absolutely and relative to other elements of treaty design, such as an agreement’s precision and its mechanisms for transparency and accountability. On the one hand, states exhibit a strong belief that the legal character of an agreement matters. On the other hand, some political agreements, such as the 2009 Copenhagen Accord and the 1975 Helsinki Accords, arguably have had a greater influence on state behaviour than their legal counterparts. As a result, confident assertions, one way or the other, on the degree to which the legally binding nature of the Paris agreement does or does not matter seem unwarranted.

Keywords: climate change, treaties, Paris conference

JEL Classification: K32, K33

Suggested Citation

Bodansky, Daniel, Legally Binding versus Non-Legally Binding Instruments (August 31, 2015). Forthcoming in: Scott Barrett Carlo Carraro and Jaime de Melo, eds., Towards a Workable and Effective Climate Regime, VoxEU eBook (CEPR and FERDI) . Available at SSRN: https://ssrn.com/abstract=2649630

Daniel Bodansky (Contact Author)

Arizona State University Sandra Day O'Connor College of Law ( email )

111 E Taylor St
Phoenix, AZ 85004
United States

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