The Legal Character of the Paris Agreement

• Date: 01 July 2016
• Published date: 01 July 2016
• Author: Daniel Bodansky
• DOI: http://doi.org/10.1111/reel.12154

The Legal Character of the Paris Agreement

Daniel Bodansky*

From start to f‌inish, the question of legal form or char-

acter 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 legally bind-

ing character of the Paris Agreement matters. Making

the agreement legally binding may provide a greater

signal of commitment and greater assurance of com-

pliance. But transparency, accountability and preci-

sion 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 character,

though important, is only one factor in assessing the

signif‌icance of the Paris outcome.

INTRODUCTION

From start to f‌inish, the question of legal form or char-

acter was central to the Paris negotiations. The f‌inal

issue decided at the 2011 Durban Conference, when the

negotiations began, concerned the legal form of the

instrument to be developed. And the last issue decided

in Paris, when the negotiations concluded, concerned

the legal character of one of the Paris Agreement’s pro-

visions. In both cases, the question of legal character

was resolved obliquely –in Durban, by adopting a for-

mulation whose meaning no one understood, and in

Paris, by correcting an error in the text, which had con-

verted a provision intended to be non-binding into a

binding obligation, by using the verb ‘shall’rather than

‘should’.

The obsession with the Paris outcome’s legal character

may seem curious to scholars sceptical that interna-

tional law signif‌icantly affects State behaviour.

1

Whether or not the Paris Agreement is legally binding,

it lacks enforcement machinery and is not necessarily

justiciable, at least in some countries. Nevertheless,

States clearly thought the issue of legal form mattered,

and this belief itself became an important reality in the

negotiations, which signif‌icantly shaped the ultimate

result.

Confusion about the legal character of the Paris Agree-

ment is widespread, and ref‌lects a failure to distinguish

carefully between seven related but distinct issues: (i)

the legal form of the agreement itself, that is, whether it

is a treaty under international law; (ii) whether individ-

ual provisions of the agreement create legal obligations;

(iii) whether the provisions of the agreement are suff‌i-

ciently precise that they serve to constrain States; (iv)

whether the agreement can be applied by courts; (v)

whether the agreement is enforceable; (vi) whether the

agreement otherwise promotes accountability, for

example, through systems of transparency and review;

and (vii) the domestic acceptance process and legal sta-

tus of the agreement.

2

Even a scholar as knowledgeable

as Anne-Marie Slaughter, former president of the

American Society of International Law, confuses the

issues of legal form, enforceability and domestic

acceptance, when she writes that treaties must contain

‘enforceable rules’with ‘sanctions for non-compliance’

and must be ‘ratif‌ied by domestic parliaments so that

they become a part of domestic law’. Because the Paris

Agreement is ‘none of these things’, she concludes that

it is ‘essentially a statement of good intentions’rather

than law.

3

Similarly, another leading international law

scholar, Richard Falk, describes the Paris Agreement as

‘voluntary’and says that there is not ‘even an obligation

to comply’.

4

At least as a matter of international law,

none of these statements is true. The Paris Agreement

does qualify as a treaty within the meaning of interna-

tional law; it does create legal obligations for its parties;

and compliance with these obligations is not voluntary.

* Corresponding author.

Email: Daniel.Bodansky@asu.edu

1

J.L. Goldsmith and E.A. Posner, The Limits of International Law

(Oxford University Press, 2005).

2

To some extent, some of the confusion results from using the term

‘legally binding’ in different ways. F. Sindico, ‘Is the Paris Agreement

Really Binding’, Strathclyde Centre for Environmental Law and

Governance, Policy Brief No. 03/2015 (2015).

3

A.-M. Slaughter, ‘The Paris Approach to Global Governance’,

Project-Syndicate (28 December 2015), found at: <https://www.

project-syndicate.org/commentary/paris-agreement-model-for-global-

governance-by-anne-marie-slaughter-2015-12>.

4

R. Falk, ‘Voluntary International Law and the Paris Agreement’ (16

January 2016), found at: <https://richardfalk.wordpress.com/2016/01/

16/voluntary-international-law-and-the-paris-agreement/>.Along simi-

lar lines, Falk says that the Paris Agreement raises ‘serious questions

as to whether anything at all had even been agreed’ and ‘went to great

lengths to avoid obligating the parties’. Ibid.

ª2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

142

RECIEL 25 (2) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12154

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