Paris Agreement Hard Or Soft Law
The preceding sections of this document outline the ideal form of the Paris Agreement if all political constraints could be overcome. This ideal should be sought at the Paris conference, during the subsequent development and amendment of the agreement. In reality, as described above, the political feasibility of an agreement on harsh laws, with severe obligations to reduce the law, is low. This section contains some “real world” recommendations that could help meet the demands of justice if there is no strong legal agreement in Paris. This document has consistently adopted a positivist approach to the distinction between hard and soft law. However, some authors argue that soft law obligations can become a strong right or have a harsh legal effect. [148] While the Paris Agreement must not contain a binding obligation to implement mitigation commitments, the NNPs promised to each state provide for unilateral obligations under the Soft Law. There are a number of ways that, over time, could shift these soft law commitments to rigid law commitments built into the Paris Agreement using COP decisions. Like DECISIONS OF THE COP interpreting the terms of an MEA, decisions of the COP that add more detail to a provision of an MEA could be considered as a subsequent practice of the State in accordance with Article 31(3)(b) of the VCLT. The advantage of this approach is that it would not be necessary to distort the terms of the existing provision in the Paris Agreement in order to interpret them to include implementation.
The disadvantage of all these proposed approaches is that they rely on the political will of the parties, which will later consolidate in order to create binding implementation commitments. While it is quite possible that such political will develop in a timely manner, it is not the above analysis that has identified some key criteria relevant to the effectiveness of an agreement: compliance, addressing trade concerns, financing and stability of commitments. Despite the lack of empirical research, there are sufficient arguments in favour of strong law to conclude that a rigid law instrument as a whole best addresses each of these issues. The jury has not yet decided whether the self-differentiation of the Paris Agreement will meet mitigation obligations that meet the needs of international and intergenerational justice. There are two problems with evaluating this self-differentiation structure. Firstly, the question of whether the commitments made individually and collectively by individual countries meet the requirements of justice, which does not fall within the scope of this document. Secondly, the question arises as to whether the effective mitigation measures taken by States are appropriate to the requirement of justice. The latter question includes an analysis of likely compliance and, as we have shown, legal form is a crucial aspect of this issue. While self-differentiation in the Paris Agreement can lead to NDCs that are only moderately unfair, it could lead to a dramatically unfair situation if these commitments are poorly implemented. Therefore, since legal form is an integral part of compliance issues, it must be recognised that legal form to the extent that justice is addressed is an integral part.
The parties failed to agree on a binding outcome in Copenhagen, in part due to differences of opinion on whether binding mitigation commitments should be made by non-Annex I countries. [70] This resulted in agreement on non-applicable legislation, which required action by all States, and more States committed themselves to taking measures to reduce the reduction under the Copenhagen Accord than under the Kyoto Protocol, which only imposes obligations on annex I parties. [71] This reflects the perception that states will be more willing to participate and propose more ambitious reduction targets under a soft law agreement than under hard law. [72] However, a UNEP study showed that if countries` 2020 commitments were fully implemented, this would only result in a moderate reduction in global emissions below normal. . . .
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