LEGAL OBLIGATIONS OF STATES IN COMBATTING CLIMATE CHANGE

ABSTRACT

The environment is deteriorating rapidly at alarming rates. This puts focus on the legal obligation of states to combat climate change. There are international agreements, protocols, and treaties enacted for states to act and take necessary steps to reduce climate change. Fighting climate change requires collective efforts from states and effective strategies to safeguard countries. States face challenges ranging from over-dependence on fossil fuels, not fully utilizing renewable energy, lack of unity, and improper implementation of environment-friendly measures. In this article, the primary focus will be the obligation of states to fight climate change, the challenges faced by countries while combatting climate change, potential solutions to the problems, and the latest trends and role of non-state actors in protecting the environment.

Keywords

Climate Change, Paris Agreement, Pollution, Global Warming

INTRODUCTION

“Climate change is the environmental challenge of this generation, and it is imperative that we act before it’s too late”

– John Delaney

Climate change has rapidly emerged as a significant issue in the 21^st century as economies face hardships, ecosystems face erosion, and human lives are in great peril. This has forced the government to implement necessary measures to address the increasing danger of climate change. Environment and biodiversity do not have any borders, it is the same for everyone, everywhere in the world. Therefore, climate change is a ‘global challenge’ as everyone must protect it. Collective efforts and solidarity will help to maintain and preserve the environment.

States have various responsibilities in overcoming climate change, deriving from international treaties, customary international law, national laws, and domestic institutions. These obligations are global, national, or regional. In such situations, the law plays a critical role in mitigating climate change. The judiciary plays a fundamental role in ensuring that rights are recognized, increasing penalties for environmental violations, improving transparency, and ensuring climate change is a central consideration in development policies.

INTERNATIONAL LEGAL OBLIGATIONS

TREATIES AND AGREEMENTS–

“United Nations Framework Convention on Climate Change (UNFCCC)-

The UNFCCC is a global agreement between nations to address harmful human impacts on the climate system. It aims to stabilize greenhouse gas concentrations to prevent such interference”[1]. ‘The 2015 Paris Agreement is a treaty with legal obligation concerning climate change. It requires the government to restrict the concentration of greenhouse gases in the atmosphere. It requires countries to report and implement national mitigation measures[2].

Key provisions-

“Objective (Article 2) – To Stabilize greenhouse gas emissions and prevent climate degradation

Common but Differentiated Responsibilities -Article 3.1

Sustainable Development and Principle of Equity- Article 3.4

Commitments and targets set by countries to fight climate change- Article 4

Conference of Parties (CoP)- Article 7

Establishment of Financial Mechanisms- Article 11”

Kyoto Protocol-

‘The Kyoto Protocol implements the United Nations Framework Convention on Climate Change by obligating the developed nations and transitioning economies to restrict and lower greenhouse gas (GHG) emissions according to specified individual targets. The Convention only asks those countries to adopt policies and measures on mitigation and to report periodically’[3].

“The Kyoto Protocol is based on the principles and provisions of the Convention and follows its annex-based structure. It only binds developed countries and places a heavier burden on them under the principle of common but differentiated responsibility and respective capabilities, because it recognizes that they are largely responsible for the current high levels of GHG emissions in the atmosphere”[4].

Relevant articles-

“Binding Commitments by Countries- Article 3

Monitoring and Reporting by Countries – Articles 5,7, and 8

Joint Implementation (JI)- Article 6 – A country can invest in other countries in collaboration to fight climate change.

Clean Development Mechanism (CDM)- Article 12 – Develop countries help underdeveloped countries to get certified emissions reduction credit.

Compliance – Article 18

Amendment Process – Article 20”

Paris Agreement-

“The Paris Agreement is aninternational treaty on climate change that is legally binding. It was approved by 196 Parties during the UN Climate Change Conference (COP21) in Paris, France, on December 12, 2015.

The primary aim is to keep the rise in the global average temperature to significantly under 2°C above pre-industrial levels and strive to restrict the temperature increase to 1.5°C above pre-industrial levels as mentioned in Article 2.”[5]

“Executing the Paris Agreement necessitates economic and social change. The Paris Agreement operates on a five-year cycle of progressively more ambitious climate action strategies. Nations present their national climate strategies, referred to as Nationally Determined Contributions (NDCs”[6]).

Key sections-

“Nationally Determined Contribution (NDCs) and Mitigation Efforts – Article 4

Adaptation of the Agreement- Article 7

Recognizing loss and damage caused by Climate Impact- Article 8

Setting up of Climate Finance- Article 9

Transparency Framework- Article 13”

Montreal Protocol and Kigali Amendment-

‘The Montreal Protocol on Substances that Deplete the Ozone Layer is a significant multilateral environmental treaty that governs the production and use of almost 100 synthetic chemicals known as ozone-depleting substances (ODS)’[7].

‘The Kigali Amendment to the Montreal Protocol is a global pact aimed at gradually decreasing consumption and production of Hydrofluorocarbons (HFCs). It is a legally binding agreement designed to create rights and obligations in international law.’[8]

CUSTOMARY INTERNATIONAL LAW-

Precautionary principle-

‘It states that to protect the environment every state should apply the principle to the best of their abilities. When the potential for irreversible and severe harm exists, insufficient scientific evidence should not be justification for delaying punitive action.

When environmental and human health is at risk, precautionary action must be implemented even in the absence of complete scientific information.’[9]

“No-Harm Rule-

States must ensure that activities within their jurisdiction do not cause environmental harm to other states”[10].

Human rights treaties-

Currently, climate change is recognized as a human rights concern, countries are bound by agreements like the “International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)” to safeguard rights including life, health, and a reasonable standard of living.

REGIONAL FRAMEWORKS-

European Union Climate Law-

“The European Climate Law aims for the European Green Deal to ensure that Europe’s economy and society achieve climate neutrality by 2050. The legislation establishes an interim goal of cutting net greenhouse gas emissions by a minimum of 55% by 2030, relative to the level in the 1990s. It also implements emission trading systems and renewable energy goals”[11].

African Union Agenda 2063-

“The African Union’s Climate Change and Resilient Development Strategy serves as the strategic framework for achieving Africa’s aim for inclusion and sustainability. It represents a tangible example of Pan-African climate-resilient economies and the advancement of renewable energy”[12].

“ASEAN Agreement on Transboundary Haze Pollution (AATHP)-

The AATHP is the legally enforceable environmental pact established by the ASEAN Nations in 2002. Its object is to prevent, monitor, and mitigate land and forest fires to transboundary haze pollution through concerted national efforts, and regional, and international cooperation”[13].

Domestic Legal Obligations-

Constitutional provisions-

Numerous states have particular constitutional sections that require a government to safeguard the environment.

India- The Directive Principles of State Policies established to safeguard and maintain Climate. “Article 48-A says the state shall endeavor to protect and improve the environment”. Further citizens are granted fundamental rights under Article 21 for a ‘clean and healthy environment’. Fundamental Duties also enforce the obligation of citizens to preserve the environment [Article 51A(g)].

“India’s Nationally Determined Target under the Paris Agreement–

Reduce Carbon Emissions by 33-35% by 2030 from 2005 levels.
Achieve 50% non-fossil fuel-based electricity capacity by 2030.
Create an additional carbon sink of 2.5–3 billion tonnes of CO₂ equivalent through afforestation.”[14]

Legislative Measures-

Carbon Pricing (CO2 pricing)

‘Carbon pricing is a strategy employed by governments to address climate change, where a financial charge is imposed on greenhouse gas emissions. This is aimed at motivating polluters to decrease the burning of fossil fuels, the primary cause of climate change. Carbon pricing is a tool that accounts for the external costs associated with GHG emissions and links them to their origins via a price’[15]. “The EU Emission Trading Scheme”[16] is one such instance of carbon pricing.

Renewable Energy Laws-

These regulations require the adoption of renewable energy and provide incentives for environmentally friendly technology. India has consistently backed renewable energy sources. From Solar, wind, Hydrogen, and Biofuels India has been making massive strides on renewable energy.

Climate Action Plans-

Different nations have established climate action plans and strategies to address climate change, including the “UK’s Climate Change Act” or India’s “National Action Plan on Climate Change”[17].

Public Trust Doctrine-

‘The Public Trust Doctrine is a concept that ensures specific natural and cultural resources are maintained for public use. These assets including navigable waterways, wildfires, and land are maintained in trust by the government for the benefit of the people. States have a fiduciary duty to protect natural resources for public use and environmental sustainability’[18].

Procedural Obligations-

Environmental Impact Assessment-

“EIA is the official procedure employed to anticipate the environmental impacts (both beneficial and adverse) of a plan, policy, program, or project before deciding whether to move forward with the suggested action. UNEP describes Environmental Impact Assessment (EIA) as a mechanism for recognizing a project’s environmental, social, and economic effects before making decisions. Major projects must assess climate-related risks. It ensures transparency and public involvement in climate-related decision-making”[19].

Financial and Technological Obligations-

Rich states are required to provide funding to developing and underdeveloped countries to address climate change. Additionally, they must contribute to the Green Climate Fund to aid in the mitigation and adaptation of climate change. Further developed countries must transfer and give access to clean energy technologies under international frameworks.

OBSTACLES ENCOUNTERED BY GOVERNMENTS IN THEIR FIGHT AGAINST CLIMATE CHANGE

Countries encounter various difficulties in addressing climate because of its intricate, varied, and global implications. These obstacles can be institutional, economic, political, social, technological, and environmental.

Institutional Challenges-

Coordination among agencies-

Disjointed Governance- Climate Action often involves coordination among various government agencies for effective implementation. However, agencies may have overlapping or conflicting jurisdiction creating problems.

Incapacity– Many underdeveloped and developing lack the effective capacity to tackle climate change. Having robust mechanisms and technical expertise to implement climate policies effectively.

Weak Enforcement of Laws–

Countries make various policies, and laws to tackle climate change. Nevertheless, poor execution of these laws impacts the nations hardest. Regulations concerning environmental protection are weakly enforced particularly in developing economies, because of corruption, insufficient resources, and ineffective monitoring systems.

International Cooperation-

International agreements place a burden on developed countries to provide technical and financial assistance. However, non-cooperation and disagreements over burden-sharing impede collective action. Developing countries demand greater commitments from developed nations, citing historical emissions and equity principles.

Economic Challenges-

High Costs of Transition-

Transitioning from non-renewable to renewable energy sources, enhancing current infrastructure, and embracing green technologies require substantial initial investments that countries cannot finance. Decarbonization poses significant difficulties for economies that rely heavily on fossil fuels.

Economic disparity-

Developing states encounter the dual challenge of fighting poverty and attaining economic growth while fulfilling climate obligations. Reliance on developed nations for financial support frequently restricts the independence of developing countries in executing climate policies.

Less Fund-

Although the Green Climate Fund was established to support developing nations, it has demonstrated ineffectiveness. A substantial difference exists between promised and allocated funds. Governments frequently face difficulties in obtaining these because of bureaucratic obstacles.

Political Challenges-

Lack of Political Will-

Climate policies could encounter opposition from political figures who focus on immediate economic growth or electoral success instead of enduring environmental sustainability. Populist leaders like Donald Trump often downplay climate issues to appeal to vote bases.

The US and China are among the major emitters and they often engage in rivalry putting blame on each other, affecting the unifying global action.

Social Challenges-

Public Awareness and Behavior–

Individuals do not have a complete understanding of the difficulties posed by climate change. This dearth of awareness frequently leads to restricted public backing for mitigation efforts. Behavioral inertia and opposition to lifestyle modification obstruct the implementation of sustainable practices.

Disparities in Climate Effects-

Marginalized and vulnerable groups suffer the most from the effects of climate change impacts (floods, droughts) yet frequently lack the means to adapt. This disparity creates social tensions and demands for greater climate justice.

Opposition to Climate Policy Changes-

Policies like ‘carbon taxes or subsidy cuts’ on fossil fuels may face public resistance due to perceived economic burdens, especially in low-income households.

Technological Challenges-

Limited Access to Green Technologies-

Multiple countries, especially in the Global South, do not have access to advanced technologies for renewable energy, carbon sequestration, and climate resilience. Intellectual property laws frequently limit the sharing of eco-friendly technologies.

Significant Reliance on Fossil Fuels–

Nations such as India, continue to rely on Fossil fuels. Shifting away from fossil fuels presents technological and logistic challenges, particularly for countries with aging energy systems. Creating renewable energy storage and integrating it into the grid continues to be a technical challenge.

R&D deficiencies– Lack of adequate funding for research and development hinders progress in sustainable technology and climate-resilient farming.

Environmental Challenges-

Natural Vulnerabilities– Geographic factors make certain states more vulnerable to climate-related disasters. Recently California and Los Angeles have been suffering from forest fires.

Extreme Weather Events also affect the country. Natural phenomena like El-Nino and La Nina effects also cause climate change problems in countries. The rising frequency and severity of extreme weather events put pressure on state resources and infrastructure, obstructing long-term planning. Climate change intensifies the loss of biodiversity, undermining ecosystems that deliver vital services.

Legal and Policy Challenges-

Uncertainty International Law-

The lack of binding international agreements often backtracks the commitments from countries, allowing states to evade accountability. Many states lack comprehensive climate policies or frameworks, leaving gaps in mitigation and adaptation efforts.

Solutions –

Confronting the difficulties posed by climate change is a formidable challenge. Countries need to embrace a diverse strategy that includes policy changes, technological advancements, global collaboration, and involvement from local communities.

Institutional and Policy Reforms-

Strengthen Governance and Enforcement Mechanisms-

There is a need to establish centralized agencies for climate action to ensure coordination among various government departments. Improving the existing legal framework with clear penalties for non-compliance with environmental regulation can help in reducing offenses relating to degrading climate. Satellites and technology can be used to track and monitor emissions and ecological changes.

Integrate Climate Policy across various sectors-

The focus should be on including climate considerations and their impact on all policies including urban planning, transportation, agriculture, and energy. Necessary strategies must be made to support local communities and industries affected by the shift to a low-carbon economy.

Improve International Mutual Cooperation–

There is a lack of active involvement in UN initiatives such as the Paris Agreement, UNFCCC, and other international treaties. Developed nations hold developing countries responsible for not implementing essential measures while developing countries charge developed nations with failing to fulfill their responsibilities. Thus, only active participation and cooperation can result in mitigating climate change threats. Collaborating on cross-border sustainable projects can help everyone.

Financial Innovation-

Just like the World Bank and International Monetary Fund, establishing similar kinds of financial institutions for Climate Change can help developing countries to a great extent. Mobilizing climate action finance–

Recently, carbon pricing mechanisms have gained traction like carbon tax in the EU or cap-and-trade system to generate funds for green initiatives. Global institutes like the UN should establish green bonds and climate funds to finance renewable energy projects, reforestation, and climate-resilient infrastructure.

Public-Private Partnership (PPP Model)-

Encouraging private sector machinery through tax benefits, subsidies, and risk-sharing mechanisms for climate-friendly technologies can help the states reduce their burden on overcoming climate change.

Technological Solutions-

Advocating Green Technologies-

“Investing significantly in research and development in areas like renewable energy like wind, solar, tidal, etc can help countries to reduce dependence on fossil fuels. The focus should be on developing low carbon emissions technologies like carbon capture, utilization, and storage [CCUS]”[20] systems.

Digital Innovations-

Countries can use Blockchain technology for carbon credit trading and ensure transparency in climate finance. Utilizing big data and AI for predicting climate risks and designing adaptive solutions.

Sustainable Agriculture-

Most developing and underdeveloped countries still depend on agriculture for development. Even India is dependent on agriculture. Even today, conventional agricultural practices are taking a huge toll on the environment. Sustainable agriculture should be introduced. Practises like climate-smart farming techniques like agroforestry, precision agriculture, and drought-resistant crop variety should be promoted.

Social and Behavioural measures-

Public Awareness Campaigns-

Launch large-scale campaigns to educate citizens about climate change and educate about sustainable practices. People should understand the importance of energy reduction in consumption to tackle climate change.

Enhance Community engagement– public initiatives like planting trees, water, and resources conversation are only possible when an entire community works together. The government can provide incentives and help to adopt renewable energy solutions like rainwater harvesting and rooftop solar panels.

Transition into Renewable Energies-

The government[21] should invest in “creating an energy storage system to enhance the reliability of renewable energy sources. Encourage using Green Hydrogen as a clean energy alternative fuel for transportation and heavy industry”.

Electrification of transportation– The government ought to enhance the infrastructure for Electric Vehicles (EVs), such as charging stations and battery recycling centers. Encourage the utilization of public transportation and non-motorized transport like cycling. Further railways should avoid diesel or coal locomotives.

Resilience and Adaptations-

Build Climate Resilient Infrastructure-

Design buildings and infrastructure to withstand extreme weather events. Upgrade drainage systems and water management to cope with floods and droughts.
Develop early warning systems for natural disasters using satellite technology and AI. Communities should be trained in disaster response and recovery.
Promote Reforestation and Afforestation
Restore Ecosystems and Biodiversity Conservation

Certain Innovative Measures-

Providing Climate Insurance – Recently California has been experiencing massive natural fires, but many residential houses didn’t have insurance. Having climate insurance for such natural tragedies can help people.

Have Climate Responsive Urban Planning– green roofs, vertical gardens, and trees should be included.

Carbon Control Mechanism– industries must offset carbon through carbon removal mechanisms.

Latest Trends in Overcoming Climate Change –

Net-Zero Carbon Commitments by Countries-

Following the Paris Guidelines, many countries have set ambitious targets of achieving net zero carbon emissions. The US, the EU, and China have set 2060 to eliminate greenhouse gases. “India one of the largest emitters has set a target of 2070 to achieve net-zero carbon emissions”[22].

Carbon Pricing-

Many countries are increasingly implementing carbon pricing mechanisms like- Canada and Sweden lead with high carbon taxes. The EU Emissions Trading System and China National Carbon Market are leading examples.

Growth of Renewable Energy

Numerous nations are currently emphasizing renewable energy as a substitute for non-renewable resources. “Recently Indian Railways launched the World’s most powerful hydrogen engine having the potential to revolutionize public transport”[23]. Further “India has set an ambitious target of achieving 500 GW of non-fossil capacity by 2030”[24]. Nations such as Germany, Japan, and Saudi Arabia are putting resources into Green Hydrogen Technology. Britain and Sweden are experts in harnessing Offshore Wind energy.

Electrification of Vehicles-

China’s BYD and Tesla are pioneers in electric cars. Many states are promoting the use of EVs by giving subsidies, and infrastructure. India also has planned to phase out older petroleum cars, while some states have mandated zero-emission vehicles on the road.

Efforts taken by countries in combatting climate change-

Brazil is undertaking Amazon’s restoration programs
Indonesia’s initiatives to combat coastal erosion and rising sea levels and rising sea level
Singapore’s Green Buildings and water sensitive urban designs
Netherlands- extensive cycle network
Green Bonds issued by Germany and India to fund renewable and sustainable projects.

FUNCTION OF NON-STATE ENTITIES IN ASSISTING GOVERNMENTS IN THE STRUGGLE AGAINST CLIMATE CHANGE

Non-state entities such as private companies, NGOs, corporations, local authorities, and civil societies are vital in supporting state efforts to combat climate change.

Initiatives for Corporate Sustainability in the private sector-

Google and Apple aim to achieve carbon neutrality across their supply chains.
Businesses are investing in green technology, sustainable practices, and renewable energy like Tesla
Innovation and Technology- Microsoft’s investments in AI-powered climate modeling tools.
Campaigns and Awareness- Greenpeace campaigns against deforestation and fossil fuels.
Urban City Planning- India’s Smart City Mission is supported by business and private players by partnering for infrastructure projects.
Finance- The World Bank and IMF are driving Climate Finance with initiatives like the Net-Zero Banking Alliance commits financial institutions to align their portfolios with net-zero goals.
Climate Litigation- many NGOs and social groups are increasingly resorting to climate litigation to hold the government accountable for adhering to climate change.
Role of Climate Activists- Activists like Greta Thunberg are encouraging people to raise their voices against climate change and inspire millions of people to fight against the malpractices of government and businesses.

CONCLUSION

Tackling climate change demands a comprehensive strategy to confront these issues via global collaboration, creative policies, community involvement, and sustainable economic development. States must balance competing priorities while fostering global solidarity, and effectively tackle this existential threat, without these concrete efforts the fight against climate change will remain futile. Legal frameworks meant for curbing climate change have evolved significantly, with both judicial and legislative measures contributing to environmental protection and climate action. The fight against climate change will continue and be achieved only if collective efforts are taken. Sustainable development and preserving nature for future generations is the need of the hour. Careful vigilance, strict enforcement of policies, and strengthening tools will help in global climate governance.

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