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Peter Lawrence & Daryl Wong, “Soft law in the Paris Climate Agreement: Strength or weakness?”

(2017) 26:3 Review of European, Comparative & International Environmental Law 276

https://doi.org/10.1111/reel.12210

An intriguing article, drawing distinctions between binding and non-binding obligations. But isn’t an obligation, by definition, binding? I disagree on the definition of the Paris Agreement, a treaty, as a source of “soft law.” The second sentence of article 4(2) of the Paris Agreement, read in different official languages, seems to indicate a binding obligation, although probably not an obligation of result. (Binding) obligations may also be created by NDCs themselves, depending on the circumstances surrounding each of them, as unilateral declarations made, often, in rather clear and specific terms with an apparent intention of being bound.

 

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Thomson v. Minister for Climate Change Issues [2017] NZHC 733 (New Zealand)

Sarah Thomson initiated a judicial review concerning the Government of New Zealand’s response to climate change, which she considered insufficient in the light (among others) of New Zealand’s obligations under international law. Her claims relating to New Zealand’s NDC were dismissed.

In an obiter at para. 38, Mallon J. notes a country’s NDC is not binding under international law. This is doubtful. States have an obligation under article 4, paragraph 2, of the Paris Agreement, to take measures in view of realizing the objectives of their NDCs. NDCs may also constitute unilateral declarations capable of creating legal obligations.

See NMs. Thomson’s complaint and Mallon J.’ judgment. For a brief analysis, look here.