Lessons for COP30: 3 Reasons Why Environmental Treaties Consistently Fail

Environmental treaties consistently fail to translate into concrete action because of poor clarity, excessive breadth, and a lack of depth. Two decades after the Kyoto Protocol and 10 years after the Paris Agreement came into effect, climate change is continuing to worsen. COP30 offers a key opportunity for the global community to discuss the future of international environmental law. But will it succeed?

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For decades, countries around the world have drawn up and participated in multilateral and international environmental agreements to address the climate crisis. However, the effectiveness of environmental agreements has been consistently called into question.

Multilateral and international environmental treaties have largely failed at preventing or mitigating environmental damage. A notable exception is the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), which succeeded in phasing out 98% of ozone-depleting substances globally.

But treaties made to combat greenhouse emissions and protect biological diversity have been weak and ineffective, with global emissions constantly on the rise and biodiversity dwindling.

A 2022 analysis of 250,000 agreements found that most have failed to produce their intended effects. In this article, Earth.Org looks at three main reasons behind their ineffectiveness.

1. Lack of Clarity

A treaty should be designed with clarity to ensure that its signatories can understand and comply with their obligations.

From the outset, it must be acknowledged that all legal drafting presents a degree of ambiguity as courts must be able to apply and interpret documents that are limited in scope and content onto near unlimited and unpredictable scenarios. Subjective terms such as “reasonable”, “ordinarily” and “proportionate” are found all throughout statute, case law and regulation. In spite of this, international treaties are notoriously ambiguous.

Some of this ambiguity is strategic and intentional, designed to facilitate ease of entry, enabling broader participation and shortening the time taken to form a treaty. As a result, an ambiguous treaty has the advantage of reducing the “start-up” cost of signing and ratifying it. Nonetheless, the ongoing implementation becomes more expensive when terms are vague, as it leads to disagreements and misunderstandings. Consequently, the downstream regulation required to implement a treaty can become ineffective.

An example of how poor clarity in treaties can hinder an effective implementation of environmental law is in the European Union’s Water Framework Directive. The water framework directive, in its list of recitals, recognizes various treaties and aims to further their objectives. However, the directive ends up borrowing the vague terms of those treaties, such as “best available techniques” from the OSPAR Convention or the disputed “precautionary principle” from the Helsinki Protocol, leading to its poor implementation. 

Other ambiguous terms in the EU directive are found in an exemption where states can soften their environmental objectives where strict compliance is “disproportionate[ly] expensive”, effectively undermining water conservation.

2. Inappropriate Treaty Breadth

Treaty breadth refers to the broadness of the treaty’s subject matter as well as the potential number of states or organizations that can become members to it.

Treaty breadth based on geography

A treaty can be broad or narrow based on geography. Treaties like the UN Convention to Combat Desertification are global and open to all countries, whereas treaties like the Barcelona Convention have a regional focus – in this case, Mediterranean countries and the EU. 

While climate change is a global and multifaceted issue, there is strong evidence showing that regional treaties are more effective and more likely to be ratified and implemented than global treaties. This is due to a number of factors, such as a higher, common denominator interest between regional parties, as well as similar social and economic systems that enable ease of co-operation.

Thus, unless absolutely necessary, a treaty should be designed to be restricted in geographical scope. Where global treaties are necessary, they must be supplemented by regional treaties to carry out region-specific environmental goals that curb climate change. 

Treaty breadth based on interest 

Another approach to designing a broad treaty is to enable any states with a real interest in its objectives to participate. 

The UN Fish Stocks Agreement, for example, allows any state party with a “real interest” to partake in fisheries treaties. A stronger argument can be made for this form of breadth as there may be states that are geographically disconnected yet motivated by shared interest to cooperate to resolve an environmental or climate change issue. Overall, a treaty designed for broad participation increases the scope of action with potentially greater environmental outcomes and benefits. 

However, the breadth of design can also water down an agreement. For example, the Paris Agreement’s obligations are based on Nationally Determined Contributions, national climate plans that allow each participating nation to set its own targets, no matter how weak or strong. 

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Another example lies in the Kyoto Protocol, where the division of parties into Annex I and Non-Annex I enabled large emitters such as India and China to be exempt from binding targets. Hence, it is evident that there is a trade-off between breadth of participation and depth of obligation in environmental treaties.

3. Insufficient Treaty Depth

The depth of a treaty has a significant effect on its effectiveness. Depth is a function of two variables: stringency and strength. 

The stringency of a commitment is the “extent to which it requires states to depart from what they would have done in its absence.” An example of moderate stringency is the Kyoto protocol in its obligation towards Annex I Parties (developed countries) to reduce their greenhouse gas emissions to a level that was 5% lower in 2008-2012 when compared to 1990. 

Strength, on the other hand, is a metric of the intensity of a state’s obligation, typically measured by the cost of non-compliance. Article 18 of the Kyoto Protocol calls on the Conference of the Parties (COP) to address non-compliance and develop a so-called “list of consequences”. To accomplish this task, the COP established a compliance mechanism: if a member country emits more than its allowed amount, it must not only cover the excess but also reduce its future emissions by an additional 30%.

Benefits of greater strength and stringency

Greater strength and stringency would mean that states are bound to invest more into an environmental cause. They also decrease the likelihood that states disregard their obligations under the treaty and environmental concerns. 

Greater stringency and strength, however, can also increase the costs of an agreement. A strong and stringent environmental treaty may require participating nations to sacrifice other interests, such as energy supply by restricting non-renewables, or by subjecting themselves to stricter non-compliance costs, such as emissions penalties. Political capital and a favorable public opinion are thus typically needed to engage in such treaties. 

Enforcement mechanisms are a primary means of increasing the strength of a treaty, making it deeper and more substantive. A meta-analysis showed that enforcement mechanisms are the most statistically significant factor in determining the effectiveness of a treaty, and that environmental treaties with enforcement mechanisms were significantly more effective than ones that did not have any.

It is therefore vital that treaties are strengthened and made deeper by including enforcement mechanisms and increasing the costs of breaching the treaty. 

Looking Towards COP30

COP30 is an opportunity to move forward in addressing global environmental concerns or continue the path of the past in regress or, at best, stagnation. 

The weakness of international environmental treaties have rendered efforts to combat climate change largely unsuccessful. As nations come together, only a decision to learn from the past by embracing the cost of ambition and precision in developing international environmental law will lay the foundation for a successful deal. 

Featured image: UNClimateChange/Flickr.