In the final hours of the Paris Climate Change Conference negotiations, agreement was nearly derailed by a single word. The word “shall” appeared where negotiators had agreed the provision should start with “should.” For some countries, reverting “shall” back to “should” had legal implications with regard to their mitigation obligations. For those unfamiliar with the nuances of environmental law, the stand-off over these rather similar words might have seemed trivial, belying the nature of international negotiations. The reality is, however, that the carefully crafted language of multilateral environmental agreements (MEAs) matters, and has enormous implications on an agreement’s form and function.
MEAs are a primary vehicle used to tackle global environmental issues, and they have real implications at both the national and international levels. Yet, and in spite of their importance and scope, the complexity of their language and jargon (like why shall and should had very different implications in the climate accord) limits understanding of these agreements as well as the international law upon which they hinge. This constrains engagement with and use of this important form of environmental governance.
To address this issue, a new e-course on International Environmental Law from InforMEA, a project of the UN Environment Programme (UNEP) Information and Knowledge Management Initiative, offers a primer to improve understanding of the language and nature of MEAs, like that negotiated in Paris. This policy update considers how improving basic understanding of international environmental law and MEAs can help overcome the existing knowledge gap and support stakeholders’ engagement in MEA implementation.
International environmental law is a subset of international law. The e-course focuses on the sources of international law, featuring treaties as a principle way for countries to cooperate on environmental issues. The four sources of international law introduced by the e-course include international conventions, international customs, general principles of law and, to a lesser extent, judicial decisions. On treaties, the e-course refers to the Vienna Convention, a “treaty of treaties,” and provides a formal definition of a treaty, explaining that they can take multiple forms, from a convention or protocol to an accord or memorandum of understanding.
Understanding how various types of treaties function helps stakeholders recognize how these legal instruments may impact upon them. As the e-course explains, the terms used to describe a treaty often indicate differing degrees of political or practical significance. While an agreement often signifies an instrument that is less formal than a treaty and deals with a narrower range of subject matter, a protocol is narrower still, usually indicating an instrument that is subsidiary to a treaty (for example, the Montreal Protocol is subsidiary to the Vienna Convention for the Protection of the Ozone Layer). A convention is a common term used in environmental treaties, such as the UN Framework Convention on Climate Change, and is used for formal treaties with a broad range of parties and that are open to participation by a large number of states.
The clear explanation of such information supports stakeholders’ engagement in all elements of MEAs, from their initial creation through to their implementation. Understanding the intended depth and scope of participation in a given environmental treaty will help actors (from academics, to civil society representatives to government officials) more effectively participate in a negotiation process by informing the strategies best suited to the type of agreement under development. For example, for protocols with a narrower scope, negotiators may base their arguments on technical details rather than moral appeals that would be more appropriate for a larger-scope treaty.
Civil society organizations can also engage more effectively upon completion of negotiations because they will be equipped with a better understanding of the legal implications of the treaty. With an understanding of how compliance mechanisms operate, such as those reviewed by the e-course, and how legally-binding various provisions of a treaty are, civil society can hold states to account on their obligations. The e-course gives the example of the Non-Legally Binding Authoritative Statement for the Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Type of Forests (Forest Principles) to show how civil society activism can compel compliance. In this instance, society monitored and reported on the voluntary actions taken by states to improve compliance with a non-legally binding agreement.
The e-course also discusses the stages of negotiations, from setting the agenda, through to negotiations and ratification, which can inform how actors engage in international environmental treaty making. After the agenda is set, it is difficult for actors – be they states or civil society – to introduce new issues to negotiations. Civil society can mobilize domestically to build the case for a given country to ratify, which means a state formally consents to be bound by the treaty. The ratification process must follow domestic procedures; for example, the US ratified the Minamata Convention on Mercury by executive order. By understanding what happens at each stage of treaty development, actors can design the strategies to participate effectively at home, but also internationally.
Understanding the rules in a given treaty with regard to ratification and entry into force, can help civil society determine which countries to lobby with regard to action. The treaty’s provisions determine exactly when the treaty enters into force. The recently adopted Paris Agreement on Climate Change, for example, has a double threshold for entry into force – 55 states representing 55% of global greenhouse gas emissions must ratify the agreement for it to come into effect. This means that civil society efforts must focus on the major emitters, including China, the EU, India and the US, because without these countries, the agreement may never enter into effect.
Negotiators may dwell on details, such as specific words or concepts, but each of these has a deeper meaning within international law and has real implications for the outcomes and the effectiveness of MEAs. Becoming attuned to these nuances as well as overarching concepts, can help stakeholders engage in a treaty’s formation, entry into force and implementation. Demystifying international law, such as through this e-course, will promote better environmental governance overall.