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The Legal Character of the Paris Agreement

Review of European, Comparative, and International Environmental Law, Forthcoming

14 Pages Posted: 21 Feb 2016 Last revised: 23 Mar 2016

Daniel Bodansky

Arizona State University Sandra Day O'Connor College of Law

Date Written: March 22, 2016

Abstract

From start to finish, the question of legal form or character was central to the Paris negotiations. The Paris agreement is a treaty within the definition of the Vienna Convention on the Law of Treaties, but not every provision of the agreement creates a legal obligation. It contains a mix of mandatory and non-mandatory provisions relating to parties’ mitigation contributions, as well as to the other elements of the Durban Platform, including adaptation and finance. One cannot definitively say how much the legal or non-legal character of the agreement's provisions matters. Making a provision legally binding may provide a greater signal of commitment and greater assurance of compliance. But transparency, accountability, and precision can also make a significant difference, and legal bindingness can be a double-edged sword if it leads states not to participate or to make less ambitious commitments. Thus, the issue of legal bindingness, though important, is only one factor in assessing the significance of the Paris outcome.

Keywords: climate change, treaties, Paris Agreement, UNFCCC, legal form, hard law, soft law

JEL Classification: K32, K33

Suggested Citation

Bodansky, Daniel, The Legal Character of the Paris Agreement (March 22, 2016). Review of European, Comparative, and International Environmental Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2735252 or http://dx.doi.org/10.2139/ssrn.2735252

Daniel Bodansky (Contact Author)

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

Box 877906
Tempe, AZ 85287-7906
United States

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