The most obvious limitation of International Law is the lack of an international ‘sovereign’ -some form of international government. The rules are unclear and there is no international parliament or a congress, no international police force, international courts are weaker than domestic courts, and there is hardly any system to ensure there is compliance with judicial decisions. The very first time the conversation or discussion on resource depletion that took place in the UN was in 1949 in the UN Scientific Conference, from there to Stolkholm to Kyoto and Paris, a lot has happened. These events have highlighted the weak stature of international cooperation and law on the issue of climate change. There is a strong consensus on the applicability of law based on the appropriate enforcement that is available for that law. Even with the Marrakesh Accords that sets a detailed compliance system for the Kyoto Protocol along with a very innovative Enforcement Branch that has the power to take punitive action against participating states, however, Scott Barret points out that the compliance of these protocols are difficult because they are not legally binding and to make them binding parties must pass the amendment with a striking three-fourths majority after which each party must ratify the said amendment in their respective parliaments. It is because of these challenges within the fine print of such protocols and international declarations that the law in itself is poorly enforced and does not reflect well in the ground level policy implementations that are taking place in the member states.
Public policy is very difficult to sway with the force of international law. Each country pledges to comply with the UN rules and regulations, however the lack of punitive damages or no particular enforcing body, these pledges often remain unattained or poorly executed. There has been a definite change in peoples perception of the climate crisis and their respective domestic action thereafter, for this you have the UN, in specific the UNFCCC to thank. This change can be noted in domestic legal adoptions as well. For instance, post the Stockholm Conference in 1972 many countries adopted domestic laws for the conservation of natural resources and human environment. In India, the conference became a major reason for Article 48A added by Prime Minister Indira Gandhi in 1977 that dealt with the protection and conservation of forests and resources and further the establishment of the Department of Environment in 1980 and then changing it to a full-fledged Ministry in 1985. In the wake of the Bhopal Gas Tragedy and international shame, the Indian National Congress party also enacted the Environment Protection Act, 1986; an umbrella legislation to take action against firms and individuals harming the environment. In spite of the change, India has not been able to live up to many international climate-related commitments. Evidence shows that post the Kyoto Protocol era, India has still seen an increase in CO2 emissions with increased economic growth having an inverted U-shaped relation. Thus, the inference is that international law can guide nations and governments towards a positive change dealing with climate change, the benefits will only come as results when there is mutual cooperation between participating states.
Let us talk about the International Court of Justice and climate change, many have observed the need for the ICJ to be more proactive in the functioning of strategic climate litigation that is to say to develop a legal regime in favour of climate conservation and resource restoration. But in this situation, one must draw attention to the ‘Optional Clause’, Article 36(2) of the Statute as there is a deliberate absence of jurisdiction related clauses in most international climate change instruments that keep the states away from the need to come in front of the Hague Court. Even if one looks at the multiple efforts of the UN to integrate the Sustainable Goals Development Framework with day to day business and production practices, very little action can be seen in that regard. Take for example, the implementation of the framework in private businesses are happening only on a partnership basis (like the UN Global Compact in Partnership with Accenture and SAP), There is very little room for policy implementation as the consideration of these policies depend largely on the private entity.
In the regard of policy and international law, we must research and study on the integration of international treaties in a bottom to top approach that will compensate entities and government in a way that is deemed fit for each. Such a complex conundrum has to be solved politically, as the issue of climate change, with the rise of the developed versus the developing debate, has risen to be a political deadlock in many ways. The political solution can lead to great advances in reach of international law in global policy impact on climate change.
