We have received a number of queries seeking guidance on how to create legally binding obligations in the international context. In particular, there is concern as to whether or not any new, stand alone agreement to reduce greenhouse gas emissions by a specified amount, by a specified period will be binding under international law or will simply reflect a non-binding political understanding between the parties.
As stated above, analysis of the legal status of any text adopted will, to a large extent, have to take place after the adoption of the text. However, there are set out below some general considerations to bear in mind in seeking to negotiate a binding text or to negotiate a text which may have legal effect of some kind, for example as laying down an authoritative interpretation of an existing treaty.
As advised separately by LRI, the decisive factor in determining whether an instrument is a treaty is whether the parties concerned intended the text in question to give rise to rights and obligations under international law. That intention may be clear from the relevant text and/or from statements made at the time of adoption. Parties must act in good faith.