How the Language of Treaties Affects Climate Action

How the Language of Treaties Affects Climate Action

A view into the legalization of international relations and its impact on environmental law

November 10, 2022

6 min read; 1189 words

Tags: Energy Policy

Author: Serena Camici

It’s true that climate change knows no borders. It’s also true that developing countries experience the effects of the crisis more greatly than others, given inequalities in global wealth and geographical distribution. In 2019, the Global Climate Risk Index published the top 10 countries most affected by climate change. 9 out of those 10 were in the Global South. And yet, the Global North produces a carbon footprint 100 times that of the South.

While the South views climate change as a problem defined by the North-South divide which requires a dual-track approach, the North largely views it as a global problem which requires uniform global solutions. The South’s perspective on international climate regulation is defined by the North’s responsibility for the majority of carbon emissions per capita since the Industrial Revolution. Despite this, the South has borne the brunt of the consequences.

The rising global economy has also perpetuated the need for developing countries to “catch up” economically. In light of the growing global gap in GDP, the Global South sees that cutting emissions, especially through eliminating cheap energy like fossil fuels, would further slow economic growth, inhibiting their right to development.

So, what to do?

It is not the lack of awareness that has frustrated the race to climate solutions but rather the lack of imaginative policy with the capacity to actually enact change. Addressing the climate crisis starts with creating international policies that holistically take into account the economic, political, and social inequalities between nations and create binding frameworks to ensure state compliance.

It seems as if this has already happened. The legalization of international relations has risen significantly post-World War II, with the number of international multilateral agreements growing by nearly 5 times between 1950 and 1990. Major treaties include the Montreal Protocol, the UNFCCC, the Kyoto Protocol, and the Paris Agreement, which have garnered international recognition and support. However, compliance with most of these agreements is infamously low. Despite pledging to reduce temperature rise to 1.5 degrees Celsius by 2100 in the Paris Agreement, the UN reports that global average emissions are projected to rise 10.6% per year until 2030. Most, if not all, countries are nowhere near adhering to their climate goals.

What is it about these treaties that leads to noncompliance?

To answer this question, we must look to the way in which international law is crafted. The language of bilateral and multilateral treaties can be evaluated on a spectrum of three qualities: precision, obligation, and delegation.

Precision refers to the level of specificity in the language of the treaty and how detailed it is in providing a legal framework. It narrows the scope for interpretation by legal and political experts. For example, trade laws go into minute detail concerning the exportation and importation of specific goods and services, in an effort to limit any room for misinterpretation and bypassing laws. Other treaties provide only statements of principles and vague declarations.

Precision will in turn dictate the obligation level of a treaty and how much states are legally bound to it. Treaty obligation varies from nonlegal norms to binding rules dictated by jus cogens (peremptory norms). These are necessarily based on consent, under the concept of pacta sunt servanda (agreements must be observed).

Finally, the language of a treaty may also be evaluated on the level of delegation it allows. This is based on the degree to which states accept third party actors to interpret, adjudicate, or perform some aspect of the treaty in question. This can range from diplomacy to adjudication in international courts.

Precision, obligation, and delegation dictate varying levels of treaty compliance, when actual behavior correlates with prescribed behavior and treaties are translated into domestic law. However, depending on the contents of the treaty and varying state capacities to implement them, the needed combination of these three spectra to ensure compliance is difficult to ascertain.

This begs the question: is there a benefit to the accelerating legalization of climate goals even if compliance remains low?

In a perfect world, multilateral and bilateral agreements would include more precise language with greater levels of obligation. Rather than being vague and aspirational, these treaties would incorporate detailed, actionable measures that rethink the structure of the international and domestic economic system to ensure more sustainable practices. They would be backed up by monetary enforcement mechanisms such as raising the costs of defection for big emitters and rewarding compliance. Besides, the greater levels of legalization, the greater chance of states internalizing treaty stipulations as norm. Legalization is essentially the process of putting norms into words, which over time translate into customary international law. Customary international law is binding and thus generates high compliance.

Realistically, this would be difficult to achieve. States believe that the economic risk in cutting emissions and investing in renewable energy is too high. Unable to see past the short-term, big states are likely to defect or enter into treaties that already reflect their preexisting behaviors. Small states that need access to cheap energy will call upon reservations. The current geopolitical hierarchy is unlikely to change in time for completely fair negotiations to take place.

In addition, increasing the level of a treaty’s precision generates reluctance to ratify. The more precise a treaty, the more possibility that a state will enter in reservations about specific clauses it does not want or have the capacity to follow. States are more likely to argue over the finite details of a treaty’s language, and therefore it is less likely that they will accept the final product. Creating precise climate law is therefore a challenge. Ideally climate law would be incredibly detailed, rooted in climate science, and would highly monitor governmental practices regarding oil and gas companies and fossil fuel divestment.

It also remains that there is no international enforcer. No ultimate authority can legally compel high emitting states to stick to their word. And in the perspective of developing countries and smaller states, compliance pressure can feel like a perpetuation of hegemonic domination. Since newly independent states are at the greatest risk of climate change, complying with the stringent international order that they had no part in creating, as well as doing so under neoliberal economic presumptions, is perceived as disproportionate power politics.

But solutions do remain.

International bodies like the UN should incorporate civil society actors in the talks for crafting climate law. The law-making process has to shift focus away from state-centric decisions that become embroiled in political and economic power plays. This state-centrism only includes the voices of those represented by the political elite, limiting popular representation. Rather, by allowing a popular voice in the room, climate agreements can be better crafted to simultaneously tackle the economic, social, and humanitarian ills exacerbated by the climate crisis.

In addition, treaties should target emissions per capita rather than emissions overall, requiring the Global North to make the most effort in lowering emissions, especially since those states can shoulder the financial costs of renewing the energy grid.

As things stand, it might be a long road to seeing effective policy implementation, but there is no time like the present to get started.

Serena Camici is a sophomore at the University of Pennsylvania studying International Relations with a minor in Sustainability and Environmental Management.