A Sustainability Toolkit for Trade Negotiators:

Trade and investment as vehicles for achieving the 2030 Sustainable Development Agenda

3.1 Binding or Non-Binding Commitments

The elements of an environment chapter or side agreement will typically consist of some mix of preamble and objectives, provisions for institution building and substantive commitments.

Commitments come in many forms, and it is useful to situate them on a spectrum from non-binding to binding:

  1. Reaffirmation of existing commitments made elsewhere (e.g., The Parties reaffirm their commitment to effectively implement in their laws and practices the multilateral environmental agreements to which they are a party). This is not a commitment in and of itself, and so cannot be binding.
  2. Best endeavour clauses: commitment to “promote,” “support,” “encourage” or “make efforts toward” some desirable activity (e.g., The Parties are resolved to make efforts to facilitate and promote trade and investment in environmental goods and services), or “endeavour to” fulfil some goal. Commitments may be qualified with language such as “as appropriate.” Such hortatory language is not binding.
  3. Commitment to cooperate or exchange information on an issue, often with a suggested list of possible activities (e.g., The Parties commit to consulting and cooperating as appropriate with respect to environmental matters of mutual interest related to Multilateral Environmental Agreements, in particular trade-related issues. This includes, inter alia: …). This is a binding commitment, but that arguably is irrelevant; it is hard to imagine a state being compelled to act cooperatively.
  4. Commitment to formulating unspecified policies and taking unspecified measures in support of some agreed objective (e.g., commit to maintain or adopt actions to combat illegal, unreported and unregulated fishing). This is a binding commitment, but is specified so vaguely that it would be difficult to be found in breach.
  5. Commitment to specific actions or policies (e.g., “No Party shall grant or maintain any of the following [environmentally harmful] subsidies”). These commitments are binding and subject to any dispute settlement provisions (see Consultations and Dispute Settlement, Section 3.8).

The trend in recent negotiated agreements has been away from unqualified binding commitments and toward the less binding end of the spectrum. Such commitments are undeniably weaker from an environmental perspective. But it is important to ask: are they also less effective, less appropriate?

The answer depends on the context. A binding commitment entered into under negotiating pressure, by a state without the capacity or public support for enforcement, is not likely to be an effective or appropriate commitment. Non-binding commitments, which may be easier to negotiate, which may leave room for needed flexibility, and which may eventually lead to strong binding commitments, may be a better option in some cases.

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