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Legally Binding International Agreements or International Cooperation for Climate Change?

For decades, the international community has been calling to negotiate the most important treaty in modern history i.e. a multilateral environmental agreement that may determine whether the world can successfully reduce anthropogenic sources of greenhouse gases and avoid the most dangerous consequences of climate change. The difficulties and controversy regarding this issue centers around how country’s actions will be expressed in an international agreement, and how procedures for measuring, reporting, and verifying such actions might promote implementation due to the weighing of the potential risks and benefits of the legally binding character of the treaty.

Generally speaking, the legal character of an international agreement is reflected in its form, content, and institutions and procedures establish there in to promote compliance with, and enforce its terms. The highest form of expression of political commitments and will at the international level are the legally binding treaties, containing specific and enforceable obligations. In practice, states regularly enter into agreements that take a legally binding form, but that are softly worded, vague and that are in some circumstances unenforceable.

Regarding the legal form of environmental agreements, the benefits of undertaking a binding character are: direct incorporation into domestic law; greater financial support to parties to the treaty and institutions; media and public awareness; confidence of carbon markets; greater transparency, predictability and accountability; clearer market signals; and harmonization and mutual recognition of domestic legislation. However, the benefits of a non-legally-binding agreement may include a wider participation of countries and higher expressed ambitions of actions.

Even though commitments in a treaty are legally binding in their form, they may have very little legal effect at the international level. In cases where the language of the treaty is expressed in vague and imprecise terms, assessing compliance becomes difficult, which may result in an unenforceable one. Moreover, the legitimacy of an agreement may depend on the institutions and procedures it establishes to promote implementation by monitoring reviewing, and promoting compliance with their commitments. Therefore, if the institutions and procedures created under the agreement are weak, the agreement becomes inefficient.

Another way in dealing with climate change in the absence of legally binding agreements is through international cooperation. The importance of international cooperation lies in the development of an effective and efficient global response to the complex and long-term challenge of climate change. The framework under which international cooperation may take place, include the following principles: (i) common but differentiated responsibilities; (ii) equity; (iii) flexibility; (iv) urgency; (v) sustainable development; and (vi) adaptation.

Whether in the form of legally binding agreements or international cooperation, the climate change issue is priority in the agenda of most of the countries. However, it is a hard task to achieve consensus on what might be the actions and the steps to follow.

Daniela Gomez Altamirano

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