Accountability of States at COP26: The Primary Issue of International Environmental Law

In the first two weeks of November, world leaders and national negotiators met in Scotland to discuss the ever-growing issue of “Climate Change.”[1] The dialogue addressing the origin of the Conference of the Parties (COP) commenced in the year 1992 when States decided to draw up an international treaty called the United Nations Framework Convention on Climate Change [“UNFCCC”], which enumerated certain accepted standards for global cooperation on fighting climate change. Over the years, the  convention saw essential modifications including the Paris Agreement of 2015 [2], wherein the contracting States agreed to set the goal of limiting global warming to well below 2 degrees celsius (preferably to 1.5 degrees celsius). To give an impetus to this collective effort the Conference of Parties to the UNFCCC convened COP26.

The Glasgow Climate Pact (the outcome of negotiation conducted in COP26) is the first-ever climate deal that explicitly plans to reduce coal, the worst fossil fuel for greenhouse gases.[3] Furthermore, the said deal has also emphasized the urgent need for emission cuts and an increase in the amount payable to the developing countries, to assist them to adapt and mitigate climate change. However, the sad truth is that the pledges undertaken by the States do not go far enough to limit temperature rise to 1.5 C. For example: In the earlier negotiations of the COP, the plan was to phase out coal. However, at the last moment, India and China backed out. The Climate Minister of India stated that:

“how developing countries could promise to phase out coal and fossil fuel subsidies when they have still to deal with their development agendas and poverty eradication.” 6

The stance taken by the Indian Minister seems reasonable enough. Developing countries like India and China have a legitimate reason to exploit resources that may adversely impact the environment to improve the socio-economic condition; however, the said decision to back out at the last minute may lead to adverse climate conditions. A failed promise is another factor that exemplifies the failure of COP’s failure. In 2009, developed countries undertook a pledge to provide $100 Billion to emerging economies, to assist developing nations in adapting to climate effects and making the transition to clean energy. The said transaction was set to progress in 2020, however, the same stands unfulfilled. In COP26[4], to mollify the delegates of the developing, it has been stated that around $500 Billion would be mobilized by the year 2025,[5] however, no one is sure such amount would be mobilized or not.

Rarely have States been held responsible for their actions that harm the environment. This article would explore the accountability of states, the challenges, and probable solutions to this issue of international environmental law.

 

State Accountability vis-a-vis International  Environmental Law

The aspect of accountability (or State Responsibility) of States in international law for their acts, omissions, and the subsequent consequence holds significance in Public International Law.[6] However, the accountability of States in international environmental law remains a problematic issue to deal with. Barring a few exceptions, states usually do not consider the question of accountability in international environmental treaties. Moreover, the International Courts have not adjudicated cases dealing with the accountability of States in environmental matters.[7]

State Responsibility refers to the accountability of a State wherein the State has violated international law by an act or omission which can be constituted as “Intentionally Wrongful Act.”[8] Furthermore, this “Internationally Wrongful Act” must be attributed to a State. An act or omission can be constituted as an “Internationally Wrongful Act” only when the said act or omission breaches an international legal obligation established by a treaty law (bilateral or multilateral environmental treaties) or customary international law (prohibition on environmental harm).

 

Challenges to hold States Accountable for “Environmental harm”

There are a plethora of challenges to make States accountable for environmental harm. These challenges pose great difficulty as there is no easy solution to resolve the imposed issues.

Challenge of Casualty 

The reason for environmental harm is usually a complex interplay of various factors. Sometimes, a single factor/State is responsible for environmental harm. However, for the most part, multiple factors/States are involved (often for a long time) in harming the environment. Therefore, establishing cause becomes a difficult challenge. Furthermore, the entities affected by the environmental harm can range from a single individual to groups, communities, regions, Single State, Multiple States. Moreover, it is indeed a fact that it is not productive to raise concerns to mitigate the environmental harm, as the multiplicity of polluters and victims would likely pose insurmountable evidentiary difficulties. This raises questions of standing, invocation of State Responsibility and the “injured states”.[9]

Challenge of Conflict

The act or omission that causes environmental harm are often lawful. They are often perceived to be essential for the socio-economic condition of the State. A blanket prohibition to questionable environmental acts does not seem feasible to many developing nations; the question turns to allowable thresholds and appropriate standards of conduct, which are often difficult to define. This challenge can be related to the concern of India and China at COP26, where the development of the nation and environmental concern comes into conflict.[10]

Challenge of Definition 

Defining environmental damage is one of the most challenging tasks. What amount must be compensated? How the amount of compensation should be calculated? Raises complicated economic, political, and philosophical questions.[11]

Challenge of Prevention

The most critical point is the stakes involved in environmental harm. It is much better to prevent damage rather than seek reparations (Aftermath/Ex Post). For example, in case of irreparable environmental damage, the State Responsibility/Accountability aspect will not hold much relevance; thus, missing the whole point of addressing global environmental problems.

Challenge of Diplomacy

The last challenge relates to the diplomatic aspect of international environmental law. As rightly pointed out by Dr. Christina Voigt, recourse to state accountability could potentially adversely affect the success of cooperative efforts to address environmental problems. The potential benefits of relying on State accountability must be balanced against the potential disruptions an adjudicative approach could cause to the multilateral effort in designing a treaty-based, diplomatic solution. For seeking an advisory opinion on the question of responsibility for climate change, it has been warned that:

“the potential benefits of an advisory opinion do not justify risks of a ruling that complicates efforts to reach a political solution. Such a ruling could distract from international negotiations, make them more difficult, or lessen pressure on states to change their behaviour by letting them off the hook legally.”[12]

The 2015 Paris Agreement came close to the accountability aspect as it contains a provision on “loss and damage associated with the adverse effects of climate change”, however, the decision adopting the Paris Agreement notes that the said provision “does not involve or provide a basis for any liability or compensation.” Thus, the issue with Paris Agreement relates to one of the significant contentions that the terms of accountability are constituted by the States who will be subjected to such accountability standards, ultimately giving the States power to manipulate their respective liability.

 

Solutions

Public Accountabillity 

Teresa Kramarz and Susan Park observed that one example of the failure to integrate accountability is the displacement of resource-dependent communities in the name of conservation, without any accountability to these populations for the decisions that produced their marginalisation.[13] Hence, “Public Accountability” comes into the picture.

It is indeed a fact that States are the primarily responsible authority. “Public Accountability” must be the default setting for deliberation on responsibility and answerability for environmental harm. A call from “Public Accountability” is “to express a belief that persons with public responsibilities should be answerable to ‘the people for the performance of their duties”,[14] The State representatives are accountable to people; democratic elections and bureaucratic procedures maintain the required checks and balances on public officials (however, it is also true that these checks and balances have their own problem).[15] Elected representatives positively respond to the people’s demands for mitigating environmental harm and for adhering to the legislation and international agreements. Additionally, the state as a willing accomplice in this broad realm of accountability dialogue is expected to render internal mechanism to also make it structurally ammeneable to social accountibility. 

Therefore, “Public Accountability” holds much relevance when making a State responsible for its environmentally harmful act. Teresa Kramarz and Susan Park have devised six accountability questions that must be in Public Accountability to ensure that States are held responsible for their action. The six-question are as follows:[16]

  1. What is the primary purpose? [Answer: To represent.]
  2. Who is held to account? [Answer: Elected officials and civil servants.]
  3. To whom is accountability owed? [Answer: Responding to regulatory demands, upholding, and obeying the law, not abusing powers, serving the public interest.]
  4. What process demonstrates accountability? [Answer: Transparency of deliberative process, disclosure of information, open access to information, public consultations, report card, participatory audits, budget reviews.]
  5. What standards demonstrate accountability? [Answer: Legislation, treaties, conventions, protocols, enforcement, monitoring.]
  6. What sanctions are available? [Answer: Removal from office, legal action through the courts, fines, loss of trust.

Human Rights Aspect

Another strategy that has gained traction over the years is broadening the scope of States’ human rights obligations to solve the accountability gap in international environmental law, as it would assist in facilitating some justice to environmental issues. Recent cases regarding climate change have witnessed a human rights approach. A significant number of cases filed before various Courts rely on the human rights violation argument by displaying a connection between human rights and environmental harm. The hundred above cases regarding climate change/ climate law have been witnessed in a recent database.[17] Therefore, the idea of relating human rights with international environmental law seems promising to make States accountable for environmental harm.

Human rights are a powerful mechanism of advocacy as they provide a platform for the aggrieved to redress their fundamental problems. They also assist in protecting vital individual interests against overriding economic concerns, and at their best, human rights can be transformative and subversive of the very systems that created them. Cases regarding human rights-based climate claims have brought significant successes, For Example, The Dutch Urgenda case,[18]the German Bundesver fassungsgericht’s decision in Neubauer [19]and Endorois. Human rights assist in realizing environmentally friendly policies so as to achieve climate justice. Communication [20]case decided by African Commission on Human Rights as early as 2009 are essential examples. Thus, human rights have a significant role in making the State accountable for their questionable environmental action, which assists in addressing the political issue involved in climate.

 

The Bottom Line

 We must realize the fact that “Accountability” per se is a limited tool for improving the environment. As correctly observed by Teresa Kramarz and Susan Park, accountability remains a weak tool for environmental action because it is conceived as monitoring, compliance, and enforcement device that is applied, as an appendage, to the execution of particular interventions. This is the case when consultations with stakeholders of environmental problems take place after public, private, or voluntary governors have already drawn the constitutive boundaries of what is possible,[21] as observed earlier, this gives the States an arbitrary power to manipulate the accountability process, ultimately making no one responsible for the environmental harm.

When it comes to the stance taken by India and China at COP26, it makes it difficult to hold them accountable for their respective decision even though their decision may have catastrophic consequences, as the said decision does not formally violate any set standards, moreover, the decision does not lead to any sanction. However, it does not mean that there is nothing to do about it.

When it comes to accountability, we must realize that making a State environmentally accountable does not only mean to make a State responsible and answerable to their respective action. It also means to make the State responsible and answerable for protecting the environment and the relevant stakeholders. “Public Accountability” and “Human Rights Aspect” are two critical tools to make the State liable for inflicting environmental harm; even though they are not as effective as a treaty or custom.

References: 

[1] Glasgow Climate Change Conference – October-November 2021, UNFCCC, https://unfccc.int/conference/glasgow- climate-change-conference-october-november-2021.

[2] Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, TIAS. No. 16-1104. [“Paris Agreement”].

[3] Paul Rincon, COP26: New global climate deal struck in Glasgow, BBC, 14 Nov. 2021, HTTP://

www.bbc.com/news world-59277788.

[4] Ibid.

[5] Ibid.

[6] J. Crawford and J. Watkins, “International Responsibility” in The Philosophy of International Law 293 (J. Tasioulas and S. Besson eds., Oxford Uni. Press, 2010).

[7] A. Boyle and J. Harrison, Judicial Settlement of International Environmental Disputes: Current Problems, 4 J INT DISPUTE SETTL 2, 245–276 (2013).

[8] Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, YB Int’l L. Comm’n Vol. II art. 2,(2001) UN Doc. A/56/10 4(1).

[9] Dr. Christina Voigt, International Environmental Responsibility and Liability, University of Oslo, 3 (2021).

[10] Ibid.

[11] Ibid.

[12] Ibid. at 4; D. Bodansky, Ask the experts: Climate change and international law, PBS, 10 Aug., 2012, HTTP:// www.pbs.org/wnet/need-to-know/uncategorized/ask-the-experts/14420.

[13] Teresa Kramarz and Susan Park, Accountability in Global Environmental Governance: A Meaningful Tool for Action?

[14] Glob. Environ. Politics 2, 2 (2016). Michael W. Dowdle, Public Accountability: Designs, Dilemmas and Experiences 3 (Cambridge University Press, 2006).

[15] Edward Rubin, The Myth of Non-Bureaucratic Accountability and the Anti-Administrative Impulse, In Public Accountability: Designs, Dilemmas and Experiences 52–82 (Michael D. Dowdle ed., Cambridge Uni. Press, 2006).

[16] Kramarz and Susan Park, supra note 15 , at 11.

[17] Global trends in climate change litigation: 2021 snapshot, CCCEP, The Grantham Research Institute on Climate Change and the Environment, Jul. 2021, https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global- trends-in-climate-change-litigation_2021-snapshot.pdf.

[18] Urgenda Case, Jan. 13, 2020, https://www.urgenda.nl/wp-content/uploads/ENG-Dutch-Supreme-Court-Urgenda-v- Netherlands-20-12-2019.pdf.

[19]Neubauer Case, Bundesverfassungsgericht, 24 Mar., 2021, https://www.bundesverfassungsgericht.de/SharedDocs/ E n t s c h e i d u n g e n / E N / 2 0 2 1 / 0 3 / rs20210324_1bvr265618en.html;jsessionid=D38FD0544ED179F72DE526FB80436112.2_cid377.

[20] Endorois Communication Case, African Commission on Human and Peoples’ Rights, Nov. 25, 2009, HTTP://

www.achpr.org/sessions/descions?id=193.

[21] Kramarz and Susan Park, supra note 15, at 19.

Image Credits:  Photo by Gerd Altmann from Pixabay 

When it comes to addressing accountability, we must realize that making a State environmentally accountable does not only mean to make a State responsible and answerable to their respective action. It also means to make the State responsible and answerable for protecting the environment and the relevant stakeholders.

POST A COMMENT

Leave a Reply

Your email address will not be published.