Unenforced International Law - The International Community as a Catalyst for Climate Change Mitigation

by Julia De Miguel Bergaz (Spain) 

Abstract

Public International Law often seems unenforceable. Its authority is practically weak since it primarily relies on states’ good faith to fulfill their legal obligations. States are prone to take advantage of such unenforced features to evade their binding commitments. This is an issue when tackling problems requiring a high degree of inter-state cooperation, like climate change mitigation. Acknowledging that state action is the most effective way of combating climate change, a series of mechanisms have been developed to monitor states’ accomplishments of their legal obligations concerning climate action. On the one hand, state-based mechanisms include those installed by the UN and the EU to monitor member states commitments to climate change mitigation. On the other hand, are those established by organizations, particularly NGOs. A compromised and engaged public also constitutes a powerful tool in pressuring states to take action. These options all contribute to partially eliminating the obstacle that the unenforced nature of International Law poses to cooperation for climate change mitigation.

International Law and Climate Change Mitigation (CCM)

International Public Law is the conjunction of rules agreed upon by states that regulate their behavior and affiliations. It is the basis for peaceful and organized international relations. However, it lacks a central authority with power over states’ actions. Consequently, there is no conventional manner to force states to accomplish their duties. Therefore, every state shall fulfill its international legal obligations in good faith (Art. 2.2 UN Charter). Notwithstanding, whenever it is in their interest, states take advantage of the structure of International Law to avoid being true to their legal commitments (Fitzmaurice). A remarkable example is that concerning international legal obligations to mitigate climate change. For instance, all the signatories to the Paris Agreement are obliged to act according to the Agreement. Unfortunately, there is no effective way of enforcing it. Therefore, it is no surprise that progress in accelerating climate change mitigation has been relatively slow and that Nationally Determined Contributions lack the necessary impetus to achieve real, effective change. In response, mechanisms have been developed, both at the state and non-state level, to pressure states to attain their obligations. Concerning state-level measures, International Organizations, under which binding agreements are implemented, have developed mechanisms to control states’ fulfillment of their obligations. Therefore, it is indispensable to begin by introducing the United Nations Framework Convention on Climate Change (UNFCCC). In force since 1994 and with 197 ratifying parties, its principal aim is to prevent hazardous human interference with climate. The Kyoto Protocol and the Paris Agreement are vital elements in the UNFCCC framework: they constitute attempts at operationalizing the goals of the Convention. The most recent of the two, the Paris Agreement, entered into force in 2016, intending to limit global warming to 1.5 degrees Celsius. Its signatories are legally obliged to make economic and social transformations to reach the Agreement’s objective. The Agreement requires each member to submit Nationally Determined Contributions (NDCs) to impede the unenforced system from being an obstacle to its effectiveness. These are documents submitted by the signatories of the Agreement in which they transmit the actions they will take to reduce Greenhouse gas emissions and the measures they plan to implement to adapt to climate change (United Nations Climate Change). That way, it is possible to assess the effectiveness of the Agreement and what states are doing to fulfil their duties.

Nevertheless, the NDC system still relies heavily on states’ good faith to submit reports on what they plan to do. Even more importantly, states must decide to take such action for NDCs to be effective. The Paris Agreement Implementation and Compliance Committee (PAICC) has been introduced to monitor and support state action. All-inclusive, whenever a party to the Paris Agreement fails to communicate its NDC, the Committee is allowed to initiate consideration of issues. If such failure to act persists, the Committee can consider the issue (as long as it has the party’s consent). It is still a non-punitive system that mainly provides recommendations since the only organ with disciplinary authority inside the United Nations system is the Security Council. It relies on the party’s consent to take action. (United Nations Climate Change). Nevertheless, the PAICC, which continues to strengthen its monitoring system and rules of procedure, does aid in incrementing state parties’ compliance to the Agreement. It represents a step in the right direction to pressure states to take real policy action and implement the goals they set for themselves in their respective NDCs. It is crucial to remember that despite not having an authority that forces them to cooperate, states often choose to do so to preserve a good image before the international community. That is where the PAICC has strong influence.

Supranational Entities and CCM

Another critical example regarding state-based mechanisms is that of supranational entities, namely, the European Union. Unlike the UN, the Union is a political community with its legal system, which permits broader punitive power. The European Union has a standardized NDC for all of its members. Parallelly, the Union’s framework on climate change mitigation is based on the Regulation on the Governance of the Energy Union, a legally binding instrument that aims at synchronizing the Union’s energy and climate plans with the Paris Agreement. Under this Regulation, member states shall develop their national energy and climate plans according to a common framework (European Commission). It constitutes a more compelling example of enforcement due to the structure of the European Legal System: whenever a member state fails to accomplish its obligations, in this case concerning a regulation (which is legally binding and more restrictive than directives), the European Commission can initiate the infringement procedure, and even refer the case to the European Court of Justice. The latter can end in the imposition of economic sanctions (European Commission). Therefore, the Union being punitive and exigent in requiring its members to comply with the standardized NDC supposes an impulse to implement the Paris Agreement. There is, consequently, great potential in the European Union’s authority for it to be even more demanding in the climate goals it sets for itself.

Non-Governmental Organizations and CCM

Nevertheless, and as can be deduced, relying solely on states’ will to act towards climate change mitigation is not the safest bet since the system has inherent flaws that impede it from being completely effective. That is where non-state actors come into play. Concretely, Non-Governmental Organizations (NGOs) play a particularly significant role in lobbying for state action, working as semi-enforcement mechanisms in many instances. These organizations can influence climate change mitigation in various ways. Firstly, they can directly join government negotiations, providing support and assistance to develop or improve policies to implement such state’s NDC. For instance, when submitting their reports on their activity to whichever international authority required, many states include opinions provided by NGOs. Secondly, they can take an “outsider approach,” work as activists by mobilizing the masses and the media so that states feel pressured to act (Rietig). Either way, their influence is increasingly notable. As aforementioned, governments often accomplish their commitments to maintain their legitimacy and good image before their voters.

An example of how NGOs influence governmental policy through negotiating directly with governments is the World Wildlife Fund. WWF has partnered with a series of institutions, including governments, to achieve its goals. For instance, it has worked together with the government of the United States to protect tropical forests, contributing to the strengthening of laws against the trade of illegal wood products. In addition, it has campaigned for the government’s more vigorous commitment to the Paris Agreement. What is more, it assisted the Chinese government in establishing a giant panda conservation network (World Wildlife Fund).

Another example is the Health and Environment Alliance, a European non-profit that works by informing policymakers on the impact of reduced emissions on their population’s health. It is a stakeholder in the UN Environment Program and a member of expert groups in the World Health Organization, the European Commission, and the EU’s Chemicals Agency. It, therefore, has vast access to government decision-making bodies and can help bring change from the very top of the system (Health and Environmental Alliance).

Non-profits also aim to pressure states by influencing the grassroots: mobilizing the masses and the media, using publicity campaigns and other means to keep the population informed. The most prominent example is Greenpeace: It has developed campaigns that direct the attention to the direct causes of climate change and have a long history of successes. For instance, in the US, the organization mobilized the public to pressure President Biden’s administration, which finally decided to establish protections in the Arctic and end oil leases in the Arctic National Wildlife Refuge. Moreover, the Environmental Protection Agency announced a phase-down in the production of hydrofluorocarbons in the US after decades of pressure from Greenpeace (Greenpeace).

In the United States, the Citizens’ Climate Lobby is another remarkable case: its main aim is to generate the political will necessary to tackle climate change by bringing crucial issues to the attention of individuals. In that sense, it has accomplished much at the national level through its grassroots supporters. For instance, it has played a role in enacting the Energy Innovation and Carbon Dividend Act (Citizens’ Climate Lobby).

Public Will and CCM

This last point leads to the final proposed solution: the will of the public. Public will can be defined as the shared recognition of a problem and determination to address it in a specific way through continuous collaborative activity. In the words of Anthony Leiserowitz, founder and director of the Yale University Program on Climate Change Communication, “one important influence on government leaders is engaged citizens who demand action” (1). In democratic countries, the ultimate political power comes from the citizenry – it is upon them to decide on the legitimacy of their government. Hence, the latter is influenced by the public’s actions and wishes. An example of public will mobilization is Fridays for Future. Inspired by Greta Thunberg, it is a student-led global strike movement that started in 2018 to raise awareness of the need for urgent action to be taken by governments all around (Fridays for Future). In four years, it has turned into one of the most significant strike movements in history. That, undoubtedly, captures the attention of policymakers.

It remains clear that actual change can only be achieved by consistent, demanding, and urgent state action. Therefore, states must fulfill their commitments to the Paris Agreement and strive for more ambitious goals. This is the greatest challenge. Support is needed to lobby for action in an international system that favors lack of enforcement. Non-governmental organizations and the public have great potential to influence the negotiation and implementation of climate policies that adapt to the international obligations that governments take upon. That, together with the mechanisms developed at the state level to either directly enforce or pressure states to cooperate, helps overcome the obstacle that the unenforced nature of International Law supposes. The existence of such mechanisms reveals an obvious need for reform: the International Legal System should be a direct tool of cooperation in issues as crucial as climate change mitigation, not an obstacle to achieve such collaboration.

Works Cited

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Rietig, Katharina. Public Pressure versus Lobbying -How Do Environmental NGOs Matter Most in Climate Negotiations? 2011, www.lse.ac.uk/granthaminstitute/wp-content/uploads/2014/02/WP70_environmental-NGOs-climate.pdf.

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