From Stockholm to Paris: Navigating the Political Quagmire of Climate Law
Ahmad Kushay
6/16/20247 min read
Despite clear evidence of the harms of climate change and increasingly frequent adverse events it causes, political maneuvering and national interests have consistently obstructed the establishment of robust, binding legal obligations in the international legal framework to address this crisis. While there has been some progress and valuable lessons learned from the last century, significant issues persist, frustrating the international community’s potential to effectively combat climate change.
The Climate Crisis: An Urgent Call to Action
The Bonn Climate Change Conference is currently underway, where delegations from around the world gather to address one of humankind’s most significant existential challenges: climate change. According to the Intergovernmental Panel on Climate Change (IPCC), in a worst-case scenario, global temperatures are projected to rise by 4°C compared to their 1850-1900 levels by the end of the century. This rise will bring about calamitous consequences: 4 billion people are projected to experience water scarcity, the global burned area is projected to increase by 50% to 70%, and ~50% of tropical marine species may face extinction, among many other impacts.
For many communities, particularly those in the Global South, the menace of climate change is neither theoretical nor a mere inconvenience. Countless heart-wrenching stories attest to this: a community in Pakistan was documented preemptively digging mass graves in anticipation of loss of life from an upcoming heatwave, acknowledging their inability to prevent it and the subsequent deaths. Worsening this situation is the fact that these communities are the least responsible for causing the climate crisis; Least Developed Countries (LDCs) emit four times less per capita emissions compared to the global average.
However, despite coverage on the dangers of climate change in media, academic, and political circles, there remains a significant gap in the urgency and actionability of these discussions. This is particularly concerning given the international community’s obligations under myriads of international legal instruments, such as those under Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which include efforts to preserve the environment and protect it against climate change (see: the Human Rights Committee’s General Comment No. 36, para. 62), and Article 2(1) of the Paris Agreement, which aims to strengthen the global response to the threat of climate change by keeping this century’s global temperature rise below 2°C from pre-industrial levels. To address the gap between awareness and action, there is a need to examine the governance mechanisms that have been in place over the last century and draw lessons from their successes and failures.
The Struggle for Effective Climate Change Governance: Lessons from the Last Century
The journey to establish an international legal framework for addressing climate change within the last century has been consistently hindered by political challenges, limiting its potential to effectively mitigate the impacts of climate change. The proposal for the first international conference on environmental issues, the 1972 Stockholm Conference, did not emerge from a universal concern for global environmental preservation. Rather, it was driven by industrialized States’ worries about transboundary pollution affecting their national interests. The Conference itself faced significant hurdles: industrialized States attempted to curb environmental regulations that could harm their trade interests, Cold War tensions obstructed meaningful discussions, along with various other obstacles impeding progress.
Nevertheless, international cooperation prevailed, resulting in the Stockholm Declaration. Despite its groundbreaking nature, however, the Conference produced results that were normatively empty. The declaration, a diplomatic document, is not legally binding. Over time, only 2 out of 26 principles in the Stockholm Declaration have been recognized as customary international law: Principle 1, which asserts the fundamental right to a dignified life in a quality environment, and Principle 21, which mandates that activities within a State’s jurisdiction must not harm environments beyond national jurisdiction. It is important to note that these principles did not directly confer obligations related to mitigating climate change.
This theme, the adoption of agreements at the cost of heavy compromises, continues well into the century’s end. The subsequent major conference in Rio (1992) was more explicit in approaching climate change, recognizing it as “a common concern of humankind.” This conference also led to the establishment of the United Nations Framework Convention on Climate Change (UNFCCC), the world’s first international body specifically created to address climate change. Still, the goals prescribed in the Convention lacked binding targets nor timetables for any State. Five years later, the Kyoto Protocol emerged as the first legally binding treaty aimed at reducing greenhouse gas emissions, which suffered from the familiar issue of lacking strong sanctions for States that failed to fulfill their commitments (apart from imposing even more commitments on them). The achievement of targets set in the Protocol was also largely attributed to the historical accident of a major industrial State’s collapse, rather than the protocol itself. Ultimately, global greenhouse gas emissions remained substantially increasing since the Protocol’s inception.
While this shouldn’t discourage acknowledgements and celebrations of the progress made thus far, it is clear that the potential impact of these agreements could have been greater had political considerations been toned down and commitments intensified. This is evident in several ways:
Firstly, the Montreal Protocol serves as a compelling case study where stronger binding commitments led to more concrete changes. Unlike the Kyoto Protocol, the Montreal Protocol included binding commitments for developing countries, was ratified by major emitters such as the United States, and featured a more sophisticated enforcement mechanism (in comparison to Kyoto) which includes inter alia, trade restrictions of controlled substances to parties not showing compliance to the Protocol, and being the first environmental treaty under which the parties approved a formal noncompliance procedure. As a result of the Protocol, an estimated 99% of ozone-depleting substances have been reduced as of now, potentially preventing a global temperature increase of up to 1°C by the end of this century. Kofi Annan, former UN Secretary-General, hailed it as “the most successful international agreement to date”.
Secondly, despite the vague and lax nature of previous declarations due to the compromises, they still influenced the development of international law. Many of the Rio Declaration principles found their way into various trade deals and national legislations, such as Indonesia’s Law No. 32 of 2009 on Environmental Protection and Management, and had even been utilized by the Supreme Court in deciding a case. Interestingly, the principle employed was Principle 15, the so-called precautionary principle which posits that States should address threats of serious harms to the environment even in the absence of full scientific certainty. This principle remains contested in regards to its status as customary international law. Furthermore, scholars have also suggested that more of the principles in Rio might evolve into customary international law, one of the biggest hindrances being the little normative content in many of the principles, precisely because it is worded so vaguely. One can only imagine the heightened impact on both international law and the environment, had these agreements included more concrete rules and binding commitments.
Reflecting on the development of international law related to climate change over the last century, it is reasonable to expect that entities acting in good faith would seek to improve on the previous agreements’ shortcomings and build upon their successes in future agreements. This expectation is especially fair given the mounting evidence of worsening conditions and the increasing frequency of concrete adverse events (including, but not limited to; more frequent and severe heat waves, longer periods of drought, more intense wildfires and hurricanes, more severe coastal flooding and extreme rainfall events, disrupting lives and infrastructure worldwide). Unfortunately, as the following section will explain, this is not always the case.
Most Recent Developments: Have We Learned from Past Lessons?
The Paris Agreement stands as the most significant international treaty on combating climate change in the 21st century. Established under the framework of the UNFCCC, its significance lies in its quite ambitious goal to limit the global temperature rise to below 2°C above pre-industrial levels. Notably, it also secured participation from major emitters such as the United States and China, and included stronger accountability mechanisms, such as the “global stocktake,” which provides transparent, regular reports on States’ progress in meeting their pledges, in order to track the probability of meeting the Agreement’s goals.
The Paris Agreement is certainly groundbreaking, and to an extent, it does demonstrate lessons learned from the previous centuries’ agreements (i.e. the need for stronger accountability mechanisms). However, questions remain about whether these lessons are sufficient, as even until today, political issues continue to overshadow the formation of stringent rules that serve the international community's collective interests. These are two of the most notable examples:
First, the ambiguity surrounding the term “developing country”. The Paris Agreement differentiates “developed” and “developing” countries, with the former assigned more obligations, such as financial support and capacity-building pursuant to Articles 9 and 11 of the Agreement. This distinction follows the Common but Differentiated Responsibility (CBDR) principle from the Rio Declaration, which aims to prevent overburdening developing nations. However, unlike previous agreements like the Kyoto Protocol, which included specific lists of States with specific commitments, the Paris Agreement lacks a clear definition or list of “developed” countries, relying instead on self-identification.
This ambiguity is exploitable. China, the world’s largest greenhouse gas emitter and the second-largest economy by nominal GDP, is still classified as a developing country. Consequently, it is exempt from many obligations that would otherwise apply. Scholars have repeatedly called for stricter commitments for States like China, and thus far have largely gone unheeded.
Second, allegations of bad faith actions during recent climate summits. For example, at UNFCCC’s 28th Conference of Parties (COP28), there were reports that the forum was used to negotiate oil deals, an ironic and troubling fact given the summit’s focus on climate issues. Legally, this demonstrates a shortcoming in the current legal framework: the absence of procedures and explicit legal provisions under the UNFCCC to investigate and sanction such actions which flagrantly contradict the spirit of the Agreement. This gap in accountability mechanisms diminishes the credibility of the UNFCCC and undermines the collective efforts to combat climate change. Moreover, there has been consistent resistance to stronger language in declarations about transitioning away from fossil fuels, with debates over terms like “transition away” in place of “phasing out” or “phasing down”.
These issues are not exhaustive, as the age-old criticisms about the need for stronger enforcement mechanisms and many other concerns still persist. All in all, this demonstrates how until today, despite the increasing severity of the climate crisis, many stakeholders continue to prioritize their interests, reflecting a failure to fully learn from past lessons.
Epilogue
Coordinating around 200 nations with diverse histories and interests to combat a common threat is undeniably challenging. The complexity of climate change and the coordination required to address it are immense. However, given the urgency of the crisis, it is imperative to feel frustrated and to question if more can be done. The continued ethical violations and self-interested actions demonstrate that, despite progress, the international community still struggles to effectively implement the hard-earned lessons of the past century.
Competitive debating coach turned aspiring legal scholar, Ahmad Kushay previously obtained a degree in Chemistry from Institut Teknologi Bandung (ITB) before enrolling to Universitas Islam Indonesia (UII)’s law degree program. He plans to specialize in public international law, and is currently an assistant to Prof. Sri Wartini, UII’s Professor in international environmental law.
Featured image source: https://www.noaa.gov/education/resource-collections/climate/climate-change-impacts