Raaga Kodali
Edited by Aida Alyasin, Sahith Mochalra, and Jia Lin
Introduction
2024 has been a record-breaking year for the planet–although not in a celebratory way. Heatwaves exceeding 50 degrees Celsius in India, wildfires ravaging homes and land in Chile, and hurricanes destroying infrastructure and lives in the United States are merely fragments of the greater devastation that climate change has caused within the environment and mankind. Despite six Intergovernmental Panel on Climate Change (IPCC) reports, 28 Conference of the Parties (COP) meetings, and tens of thousands of scientific papers simultaneously urging policymakers and the public to reduce carbon emissions and prevent global temperatures from rising further, the world has struggled to make sufficient progress forward. We are heading in the wrong direction, with marginalized, impoverished countries and communities paying the price for the world’s largest carbon emitters, namely China, the United States (U.S.), and India [1]. That is not to say that global cooperation has failed, however.
Global efforts to mitigate the detriment of climate change have been pursued for decades. The first notable international accord on the climate was the 1992 Kyoto Protocol United Nations Framework Convention on Climate Change, where the first greenhouse gas emissions restriction was passed, followed by dozens of negotiations to further understand the scope of rising temperatures and how to curb its effects [2]. A little over two decades later, in 2015, the Paris Agreement (PA) was organized as a “legally-binding” international treaty on climate change to limit global warming to 1.5 degrees Celsius, and 196 parties adopted the agreement at COP21 in Paris. Some of the agreement’s key features include nationally determined contributions (NDCs) required by nations to outline tangible actions they will commit to in-line with the PA’s goals; a framework to provide financial, technology, and capacity-building support to developing nations implementing climate policies; and long-term strategies that encourage countries to formulate a vision for decades of sustainable development [3].
Symbolically, the PA represents a revolutionary international effort to make tangible progress towards eliminating greenhouse gas emissions. However, its legacy thus far is as a symbol of ineffectual policy rather than tangible change . Although promoted as a legally-binding treaty that mandates signatories to commit to climate policy, the PA contains more discretionary conditions than requirements and is, thus, not entirely enforceable by law. There are two primary flaws with the treaty from a legal standpoint that undermine its authority and enforcement, demonstrating why the PA cannot–alone–stem the rising tide of climate change:
The PA contains a combination of hard, soft, and non-obligation provisions that are noncompulsory and legally unenforceable.
The PA is not isolated from the unpredictability of nations in complying with its provisions due to changing governments and ideologies.
The PA is Too Soft
The first legal flaw of the PA is that the parties negotiated three kinds of provisions: hard laws, soft laws, and non-obligations. Hard laws are defined as provisions that “create rights and obligations for Parties, set standards and lend themselves to assessments of compliance/non-compliance,” containing clear, mandatory conditions denoted with the word shall [4]. On the other hand, soft laws “identify actors, set standards…with qualifying and discretionary elements,” often utilizing the words should or encourage [5]. Lastly, non-obligations are described as “lacking in normative content that capture understandings between Parties, provide context, or offer a narrative” [6].
In terms of soft laws and non-obligations, Article 4 Section 4 of the treaty states that “developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets,” and Article 7 Section 10 notes that “each party should, as appropriate, submit and update periodically an adaptation communication, which may include its priorities, implementation and support needs, plans and actions, without creating any additional burden for developing country Parties” [7]. The consequence of employing recommendatory terminology implies that pursuing emission reduction and transparent communication about commitments towards climate action plans are voluntary–not binding–thereby contradicting the goal of the accord and minimizing its impact on tangible efforts towards mitigating climate change.
This non-binding nature of the conditions that define the PA can be attributed to disagreements and tension between developing and developed nations when negotiating the treaty, with each participating nation having not only different resources and infrastructure, but also vastly varied priorities and developmental stages–making consistent across the board climate regulations difficult to pass and feasibly implement. As a result, different countries adjudicate and prioritize different issues at the conference. The conflict revolving around a lack of equity at the international scale also lends itself to varying interpretations on the sense of responsibility and accountability outlined in the agreement, therefore causing the PA to contain hard, legally-binding provisions on mitigation and transparency and soft, non-obligatory provisions on all other (typically regulatory) aspects of curbing emissions [8].
Countries Face no Legal Accountability
Aside from lack of mandated provisions, another critical flaw of the PA is its failure to account for the volatility of nations in fulfilling their climate-related obligations. Despite being a leader in organizing critical negotiations that enabled the treaty’s success, the U.S. is a prime example of a nation where political discord threatened its ability to carry out its commitments under the agreement. In 2015, President Obama accepted the agreement on behalf of the U.S. through an executive order without officially ratifying it through Congress. As a result, his actions were easily mitigated in 2017 when Republicans took the White House and President Trump withdrew from the agreement due to his denial of climate change’s adverse impacts and concerns about lowered reliability of domestic energy production, ultimately making America the first country to formally exit the accord [9].
However, President Biden reentered the PA in 2021 in an American presidency that has prioritized climate change policy at a far greater scale than previous administrations [10]. Considering that the U.S.–one of the most advanced, developed, and democratic nations across the world–has experienced uncertainty with its ability to abide by its climate-related obligations, it is plausible to imagine that less developed countries may be unable to follow through on their own commitments. In addition to not being independent from the instability of national politics, in Article 4 Section 11, the PA states that “a Party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition” [11]. Although it is encouraged for parties to improve their NDCs over time, the soft language on this provision renders it non-compulsory, which has been taken advantage of by numerous countries. According to the World Resources Institute, which tracks the progress of nations on implementing their NDCs, only 61% of countries that signed the PA followed through on their commitments to update or submit a new NDC in 2024 with reduced total emissions according to the five year cyclical check-in period constructed by the accord [12]. This concerning statistic indicates that just under half of all signatories have not made tangible progress towards cutting their emissions since signing the agreement almost a decade ago; therefore, it represents how encouraging each signatory to take ownership of their domestic contributions to global warming has not been entirely successful due in large part to the volatility of nations.
Conclusion
Ultimately, the issues described above coalesce around one central flaw of the PA: its inability to enforce its conditions due to a flexible structure derived from prioritizing a successful negotiation across numerous parties with different perspectives on climate policy over mandating urgent action. Therefore, it has minimal substantial legal force to hold countries accountable to committing to their NDCs and lowering their emissions, meaning that the Paris Agreement alone cannot save us from climate change. It serves as a forum for nations to become transparent in their progress towards combating global warming instead of legally enforcing mitigation efforts at an international scale, so relying on the treaty as the sole solution necessary for the world to address climate change is extremely dangerous. Unless stronger enforcement mechanisms are developed to incentivize countries to decrease their emissions with a sense of conviction and urgency, climate change will continue to cost more lives, infrastructure, and loss before the planet reaches an irreversible state of devastation. Thus, it is the responsibility of newer generations to engage in creative legal thinking and policymaking to take the future of the earth, and humankind, into their own hands.
[1] William J Ripple et al., The 2024 State of the Climate Report: Perilous Times on Planet Earth, BioScience biae087 (2024), https://academic.oup.com/bioscience/advance-article/doi/10.1093/biosci/biae087/7808595 (last visited Oct 25, 2024).
[2] Paris Agreement to the United Nations Framework Convention on Climate Change, December 12, 2015, T.I.A.S. No 16-1104, 3156 U.N.T.S. 54113.
[3] William J Ripple et al., The 2024 State of the Climate Report: Perilous Times on Planet Earth, BioScience biae087 (2024), https://academic.oup.com/bioscience/advance-article/doi/10.1093/biosci/biae087/7808595 (last visited Oct 25, 2024).
[4] Lavanya Rajamani, The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations, 28 Journal of Environmental Law 337 (2016), https://www.jstor.org/stable/26168923 (last visited Oct 25, 2024).
[5] Lavanya Rajamani, The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations, 28 Journal of Environmental Law 337 (2016), https://www.jstor.org/stable/26168923 (last visited Oct 25, 2024).
[6] Lavanya Rajamani, The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations, 28 Journal of Environmental Law 337 (2016), https://www.jstor.org/stable/26168923 (last visited Oct 25, 2024).
[7] Lavanya Rajamani, The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations, 28 Journal of Environmental Law 337 (2016), https://www.jstor.org/stable/26168923 (last visited Oct 25, 2024).
[8] Lavanya Rajamani, The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations, 28 Journal of Environmental Law 337 (2016), https://www.jstor.org/stable/26168923 (last visited Oct 25, 2024).
[9] Richard K Lattanzio et al., U.S. Climate Change Policy Congressional Research Service, https://crsreports.congress.gov/ (last visited Oct 25, 2024).
[10] Richard K Lattanzio et al., U.S. Climate Change Policy Congressional Research Service, https://crsreports.congress.gov/ (last visited Oct 25, 2024).
[11] Paris Agreement to the United Nations Framework Convention on Climate Change, December 12, 2015, T.I.A.S. No 16-1104, 3156 U.N.T.S. 54113.
[12] Tracking Progress of Countries’ Nationally Determined Contributions | World Resources Institute, https://www.wri.org/ndcs/tracking-progress (last visited Oct 25, 2024).
[13] Jen Iris Allan, Dangerous Incrementalism of the Paris Agreement, 19 Global Environmental Politics 4 (2019), https://direct.mit.edu/glep/article/19/1/4-11/15032 (last visited Oct 25, 2024).
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