Is The Paris Agreement Soft Law

April 10th, 2021

International justice requires that the agreement be effective in mitigating climate change, in order to prevent some states, particularly developing countries and small island states, from suffering disproportionate effects of climate change over the lifetime of people living today. Intergenerational equity requires effective agreement, because not leaving future generations with a functioning climate system would give less weight to the interests and fundamental rights of future people than those of contemporaries. [16] See Brunnée and Toope, supra n 5, 288, who argue that there is indeed a range of engagement capabilities and that soft law can have a significant impact on state behaviour. This document does not dispute the absence of such a spectrum, but argues that international commitments and agreements can still be regarded on the whole as a hard or soft right. The literature supports the argument that harsh and flexible laws have different effects on state behaviour. On the face of it, contracts are more durable and can survive government changes more easily than soft law instruments such as declarations of intent. As noted above, legal certainty is important both for the competitiveness of trade and for a strong financial mechanism. The downside of life is that stable commitments can lead to rigidity, for example with regard to the extension of commitments over time. Soft law instruments can provide greater flexibility in this regard. [66] However, such flexibility is also possible within the framework of a contractual instrument with the appropriate provisions. [67] As long as the Paris Agreement is able to be flexible in increasing ambitions over time, a binding contractual instrument will be preferable to a flexible instrument of law, as it will provide more security in the future. It is also essential that the Paris Agreement contains the necessary provisions to ensure that the mitigation commitments of the states contained in their NDCs are binding. Mitigation is the preventive arm of the climate regime, which aims to limit the effects of climate change.

It will contribute to the achievement of the distribution objectives of the regulatory framework by minimizing the adverse effects and burdens on vulnerable people in developing and small island states and by protecting the fundamental rights of future generations. This part sets out the provisions that must be incorporated into the Paris Agreement to ensure binding mitigation commitments. It is expected that the Paris Agreement will consist of a basic protocol. Although this is not guaranteed, mitigation obligations, whatever their legal form, cannot be binding in the absence of a binding basic agreement.

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