The "Efficacy" of International Law in meeting its stated goals

Abstract

The "efficacy" (Hans Kelsen's term of art for determining the unifying norm of a legal system) of international law is analysed using SDG's as a framework. Content Analysis is used as a research method to analyse Conference of Party decisions of UNFCCC COP's 26th and 27th, and Kyoto Protocol's COP serving as the meeting of parties' 15th and 16th sessions.

Full text

THE EFFICACY OF INTERNATIONAL ENVIRONMENTAL LAW
IN MEETING ITS STATED GOALS
By Sankalp Srivastava
Independent Legal Researcher

Table of Contents
Slides 3-6 : Introduction
Slides 7-16 : Content Analysis
Slides 17-22 : Contextualisation of the findings
Slide 23: Conclusion

Introduction
Compliance Theory
International law – “soft law” with enforcement sui generis
Different mechanisms – Managerial – facilitative, Philippe Sands,
Montreal Protocol,
Managerial category : reporting, planning and target-setting,
consequently with the emphasis on institutional assistance
Sanction-based: Penal mechanism, withholding of access
(Kyoto Protocol)

Philippe Sands’ categorisation

Categorisation by the Montreal Convention
Implementation Committee
Reporting, monitoring, verification and
implementation review
Participation through membership in non-
compliance bodies and their processes.
Triggering of the non-compliance procedure.
Decision-making and consequences of non-
compliance.
Role of the secretariat.

Necessity for contextualisation
“Treaty congestion”
Efforts by COP of framework
conventions such as
UNFCCC, CBD to review
progress
SDG’s – all encompassing,
product of international
diplomacy, provides yardstick

“Efficacy” measurement
Hans Kelsen’s Pure Theory
of Law – role of legal experts
in scientific study of the law
International law as a distinct
subject with the submission
to international law and
SDG’s as grundnorm
Gap Report by the U.N.
Secretary General utilised
Grundnor
m
D
E
R
I
V
E
D
Other
fields
Other
fields
Multidi
sciplin
aric
analys
is
Multidi
sciplin
aric
analys
is
Multi
disciplinary
analysis

Content Analysis - Introduction
Samples
Meaning units – texts derived
from decisions of COPs
Codes – on the basis of
codebook, rules
Categorisation – automatic result
of coding in most cases
Frequency analysis
Relational analysis
Picking decision texts
Green Climate Fund,
Contribution by developed countries,
Indigenous communities
Climate Finance,
Assistance to Developing Countries,
Involving stakeholders
Institutional,
Party,
Substantive

Limitations
Pre judgment, knowledge, experience
Researcher bias in coding
Linked and cited documents cannot be studied with the same
depth as the primary COP decisions
Lesser congruity amongst administrative decisionmaking of
international law bodies

Coding categories – obligations wise

Coding categories – bifurcation
Kelsen’s “is” and “ought”
HLA Hart’s primary and secondary rules
SDG Gap Report
Difference between working towards, and working on a
substantive goal
E.g., “stakeholder engagement”, “invites the non-Party
stakeholders”

Results – Category frequencies
Institutional obligations
Party obligations
Substantive obligations
0 100 200 300 400 500 600 700 800 900 1000
Frequency

Results – Code Frequency

Results – attributes of codes
Majority of positive codes in
review of past actions
COVID-19 mostly seen as a
limiting factor in adaptation
Thresholds of climate change
occur more frequently in
UNFCCC’s COP 27 decisions
than in COP 26

Relational analysis
Stakeholder participation
(substantive method)
Converge around the building
of capacity and transparency
and information provision.
Engaging non-Party
stakeholders is considered
crucial in these areas.
Transparency and information provision
Capacity building
Inclusivity of indigenous peoples
Gender affirmation
Adaptation
0
1
2
3
4
5
6
7
8
Frequency

Relational analysis
Inst. Obligations Party Obligations Subst. Obligations
0
5
10
15
20
25
30
Overlapping codes - "Contributions to and by
Funds"
Aims
Methods
The COP’s have been
generally pre-occupied with
ensuring that funds are
directed towards appropriate
aims
The administration of funds
remains a chief component
of institutional obligations

Contextualisation of the findings
Alignment with SDG’s
COVID-19’s impact on SDG
indicators has been outlined in
Glasgow Climate Pact primarily,
and then in subsequent SDG
Reports
Hence, parties’ capacities
needed to be addressed more
than it was in the sample
Trends of addressing the
concerns outlined in SDG
Reports – e.g., food security
While SDG report, 2018
identified adaptation finance
as a compelling requirement,
the 15th COP of Kyoto
Protocol gave impetus to the
same as a method.

Alignment with Nationally Determined
Contributions
Indicators of intent behind national
policymaking to combat climate change
sustainably
Separate regime of UNCLOS and niche
legal mechanisms
Nevertheless, local community
involvement is an area of enhancement
So is the Technology Development and
labour protections to decarbonise which
is mentioned, although sparsely in the
26th and 27th COPs of the UNFCCC

Alignment with Convention on Biological
Diversity
Relatively unsuccessful convention (Aichi
Targets unmet)
Compliance mechanism :
Managerial/Facilitative
Countries are made to adopt and
implement NBSAPs (National Biodiversity
Strategies and Action Plans)
The central role to national plans across
the UNFCCC and the Kyoto Protocol
additionally underscores the importance
of ambition in adopting and implementing
them.

Alignment with insights from environmental
psychology
Focus theory of normative conduct
– social norms need to be activated
Information and transparency plays
a big role in effecting compliance
Also finds significant mention in the
entire institutional obligation
mechanism due to emphasis on
past review, reports and secretarial
arrangements

Alignment with environmental economics
Rational choice theory
Net benefits outweigh net
losses
Coase theorem
is applicable to state actions,
which denotes the
economism in their decisions

Alignment with environmental economics (2)
Socio-behavioural paradigm
Social pressures
Preferences
Managerial
Investor
Employee
Dynamic role of institutions with regards to facilitation involves many human
to human interactions
Institutional arrangements constitutes bulk of institutional obligations

Conclusion
The managerial approach imposes most facilitative obligations on
institutions and its bodies that administer the agreements
Exercise of discretion plays a role in the outcome
Efficacy of international law is a “socially useful” field of study in as
much as this addresses concerns raised by the SDG Reports of past
years
Looking forward when implementing Global Stocktake, past learnings
from international law’s compliance mechanisms must be taken into
account