Ex-French President Francois Hollande marked the 2015 Paris Agreement as a ‘a major leap for mankind’ – the legal instrument combines a unique interplay between Hard and Soft law as well as non-obligations. Although it constitutes a treaty by virtue of the meaning within the Vienna Convention on the Law of Treaties, provisions of the Paris Agreement are inundated with nuances namely being the lack of normative content in its entirety in some sections and the very poor effort of the aforementioned in other parts. However, these are arguably the most powerful features of the Paris Agreement and construct a new era in international climate change legal regime.
One would expect a normal treaty to impose rights and obligations unto parties by way of operational provisions however, the Paris Agreement does not set out any particular rights and obligations. Arguably, It is more of an instrument providing constructive instruction and context for State Parties to take onboard. Scholars depict the Paris Agreement as more of a ‘statement of good intentions’ speaking volumes in the evolution of international climate change legal regime. Such careful agreements negotiated across multiple platforms cannot be dismissed for their integrity and their part to play in how the international community tackles climate change with the consideration of hard and soft law, and how they impact the world directly.
The interplay of Hard and Soft legal regimes will be discussed in the context that the Paris Agreement uses soft law protocols to drive domestic hard law regimes to achieve the necessary outcomes on the journey for climatic change.
The Paris agreement represented a pivotal moment in climate negotiations. It marked a turning point in a history of attempts to move forward collectively with all member states to reach the ultimate goal set by the United Nations. After the adoption of the United Nations Framework Convention on Climate Change in 1992, which set out the groundwork and key objectives for all future negotiations, to stabilise greenhouse gas emissions created as a result of human-induced actions. Multiple decades saw such debates on how to create legally binding instruments to actually achieve the initial objectives with true success. As, despite the Kyoto Protocol of 1997 and instruments created like the Clean Development Mechanism, the levels of greenhouse gases emitted steadily increased. It was then thought that after the acrimonious collapse of the 2009 Copehagen conference (intended to be a more successful and effective successor treaty) that multilateral climatic diplomacy had come to the end. Until the Paris Agreement came to light diversifying what preceded.
From the times of the Bali Action Plan in 2007 whereby negotiations under the United Nations Framework Convention on Climate Change began to develop in regard to the legal form of the outcome of negotiations. Hard Law concepts, whether the protocols and amendments would take a legally binding form to produce hard and consistent deliverables to be applied with a solid amount of accountability as well as predictability were pushed forward. On top of soft law protocols amongst those being decisions by the Conference of the Parties although not legally binding in their entirety were also developed and all lead to the path of change for the development of soft law protocols of the Paris Agreement
The Alliance of Small Island States amongst others being critically impacted by climatic change have argued the necessity of legally binding matters for them. Not standing alone in their arguments, developed countries had also previously tended to favour a stricter legally binding agreement under the UNFCCC. Opposing this, and initially opting for a softer approach were countries like Brazil, India and China with overarching concerns for their ongoing development as countries as a whole. Though, in the final negotiations that took place in Durban in 2011 the only remaining party to oppose was India until they accepted a compromise which developed further negotiations to a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’.
It is evident that parties chose not to make any decisions on the legal nature of the Paris Agreement in initial stages. Parties were to submit ‘Nationally Determined Contributions’ in the 2013 conference in Warsaw that they intended to make happen to fulfil the overarching obligation of the 2015 agreement. However, there was no legal form put in place to explicitly characterise the legal nature of such nationally determined contributions. Disclaimers were held within the footnotes of the Geneva Negotiating Text and the Elements Text in regards to the legal nature of the provisions and agreement itself. Thus parties did not put focus on the legal form of the Paris Agreement until the final year of negotiations and in the time leading up to the final agreement – parties had to determine the legal nature that the agreement would embody.
The lack of a harmonious political backdrop in relation the Paris Agreement played a key role in sculpting its core functions and yielded a lack of clarity of the boundaries between law and on-law.
Inconclusive empirical studies have been undertaken to try understand whether or not compliance is enacted under hard law in comparison with the obligations of soft law. The inconclusive results revealed that there were a mixture of examples whereby instruments of soft law achieved high levels of compliance and by virtue of hard law instruments lower levels of compliance were revealed.
I firmly believe that the Paris Agreement is ground breaking in its intentions to tackle climate change and has radically diversified the shift from hard to soft law for critical reasons. I believe the Paris Agreement understands and allows the pre-eminence of domestic politics and legal structures. Allowing member states to decide on their own ambition levels (nationally determined contributions) and policies in order to reach the collective end goal. The Paris Agreement sets out a constructive framework allowing countries to voluntarily determine how they intend to reach their ambitions and collectively review leaving room for the concept of ‘name and shame’. Morally imposing such obligations as opposed to legally binding from a top down view. By taking such a position and shifting climate policy to a softer regime it bypasses mistakes made in the Kyoto Protocol and eliminates one of the major hurdles in international climate change cooperation. The Paris Agreement embodies the beginning of a new era in International Climatic politics (creating room for longer lasting international cooperation through transparency and compliance protocols).
The voluntary aspect of the agreement highlights countries willingness to make a change after the failures of predecessor treaties. My only criticism of not only the Paris Agreement but intact any treaty, past, present and future is because climate change mitigation demands the requirement of considerable initial costs with no immediate benefits then many countries may find it hard to justify mitigating climate change at the time when the world needs it when they see no immediate benefit (whether it be due to wealth greed or impractical affordability factors). With the true benefits materialising in generations to come. Regardless of soft or hard legal regimes, underlying ‘selfish’ national interests may always take precedence whether it is clear or not. Obviously, when such decisions are voluntary with no hard obligations or compliance features then it may be easy for countries to remove themselves from helping to improve global climate change.
The Paris Agreement remarks a substantial shift from soft to hard legal regimes by closing the door on the previous regulatory approach of Kyoto as well as Copenhagen and opens a new door on Climate Change Politics internationally. It is clear that the shift in policy has taken place but whether or not the success in actually tackling what is necessary to fulfil the overall objectives cannot be assessed at this stage. The Paris Agreement is “tackling” the way in which countries approach climate change. It has by no means “tackled” climate change in its entirety and is most likely not going to on its own. However, it has provided a grounding for the future, moving away from a regulatory approach but towards an adaptable yet robust framework pushing for substantial developments and sustainability for long-term global political commitment to a response that is likely to have effect. The 2015 agreement creates a culture of incentive to move forward collectively and fairly.
The softer legal approach in the Paris Agreement has allowed for different international climate politics to align in a more practical manner taking into account the reality of international climate change policy. The Paris Agreement has removed two major factors which contributed to the failure of the Kyoto Protocol. A key success factor of the Paris Agreement can be argued to that it realises that ‘big’ emitters do not want to be held under the constraint of legally binding protocols (e.g. the US not ratifying Kyoto). Further, it bypasses distributional conflict. The Kyoto protocol did create legally binding obligations for industrialised countries upon entering into force in 2005, but, it did not play any role in driving domestic policy. Unlike the Paris approach, whereby it positively exploited a growing gap in climatic negotiations and developing domestic policy. As now, nearly all larger emitting countries of greenhouse gases have introduced domestic laws and regulations in regard to dealing with and controlling emission levels.
The Paris Agreement is argued to be a hybrid of domestic and international mitigation pledges. It joins together both domestic and international dimensions by harmonising domestic policy and legal regimes with an international strategy of achieving a collective goal. Paris, moves away from the previous approach and combines top down and bottom up elements moving away from decentralised and bottom up policy making. For this approach to tackle climate change how it proposes, transparency factors have to be taken into account and specific measures must be followed coherently. For this to happen efficiently, I would argue that no matter how.much the Paris Agreement embodies a shift to soft legal regimes an element of hard law would be required in order to ensure that countries meet the level of transparency required to make Nationally Determined Contributions and other agreements effective. Transparency is critical to cooperation and success. Argued by Ian Johnstone, he denotes that ’states care about collective judgment of their conduct because they have an interest in reciprocal compliance by and future cooperation with others’
The Paris Agreement is a major breakthrough in how the international community tackles climate change regime. It has shifted its legal regime from hard to soft in comparison to its predecessors. Taking on where they have failed and adopting a new bottom up voluntary approach and removing the element of distributional conflict. I believe at the core of the 2015 agreement its crucial element is that it creates a form of soft reciprocity encouraging leading states to create an element of ambitious policies for others to reciprocate and do the same in their own way. The success of the Paris Agreement cannot be seen at this minute and I argue for it to work practically under the new soft law regime, transparency frameworks must be robust to produce actual outcomes and achieve the set climate change goals. Which may call for the re-introduction of hard legal regimes to combine with soft law factors especially in regard to Non-State Actors. The Paris Agreement has not tackled climate change nor ‘fixed’ the issue but it has shifted the policy response for the better. It creates the foundation for long-term realistic political approaches for future adaptions on the journey to achieving necessary climate changes for sustainability.