Soft Law in the Climate Change Legal Regime from the Perspective of Legal Positivism

Abstract

In the formulation and development of the international climate change legal regime, a retreat from binding compliance mechanisms and a shift towards the use of softer legal framework and bottom-up designs can be seen. Regardless of the effectiveness of international climate agreements in managing climate change, in terms of the use of hard or soft law and the type of compliance mechanisms design, this article seeks to find and examine the reasons for the soft law prevalence in the process of international climate law development from the perspective of the school of legal positivism.According to the positivist approach, although the mixing of wills, arising from objective and scientific facts, has provided the necessary force to shape the international climate change regime, the duality in the system of obligations and interests multiplicity of internal influential groups in the process of accepting treaties has caused the collapse of the States collective will before Paris Agreement. Therefore, in the Paris Agreement, with the preference of voluntarism over climatic requirements and attention to the national sovereignty of countries with the waiver of strict obligations, the ground for concluding an agreement and making a change in the legal regime of climate change was achieved.

Keywords

• climate agreements
• kyoto protocol
• paris agreement
• legal positivism
• soft law