No Provision, No Problem: How Climate Efforts Function Without Explicit Enforcement

Scholars from the University of Pennsylvania are on the ground at COP27 in Sharm El-Sheikh, Egypt. Follow their updates from the climate conference and tune into a special podcast series from Energy Policy Now.

“Laws without enforcement are just good advice.”

These words, uttered by former U.S. President Abraham Lincoln, are a touchstone of any legal system; laws have penalties, which in turn incentivize constituents to comply with their requirements. The international legal system, for example, is held together by sets of treaties and customs that, in many cases, lead to jurisdiction to tribunals for violations of agreed-upon norms. When it comes to the international climate regime, and specifically COP27 currently taking place in Sharm El-Sheikh, we might ask: are laws without explicit enforcement truly no more than just “good advice?”

The structure of the climate regime highlights the importance of the question posited above. This regime is built upon, among others, the Stockholm Declaration, which laid out the earliest principles relating to engagement with the environment, the UNFCCC, a treaty that established the Conference of the Parties (COP) in order to make decisions “necessary to promote the effective implementation of the Convention,” and eventually, the Paris Agreement, a legally binding treaty that sets a long-term limit on global warming to below 2 degrees Celsius, but “preferably to 1.5 degrees.”

What is notably missing, however, is an “enforcement mechanism;” a provision to explicitly deter state parties to the UNFCCC from noncompliance through fines or jurisdiction to an international court like the International Court of Justice. Thus, in the face of unprecedented climate disasters in Pakistan, Florida, and Europe, one might understandably wonder whether stakeholders will be, or have been, incentivized to effectively band “together for implementation.”

The simple answer is: yes. Looking to COP27 and the recent year, the world has shown that the absence of an “enforcement mechanism” does not imply an absence of action. Non-state actors such as subnational governments, as well as civil society members and average citizens, have emerged outside of the negotiating room to face climate change head on, even without any explicit enforcement provision.

Cities, for example, are becoming key drivers in the push for meeting the requirements set by the Paris Agreement and beyond. This past week, the Local Governments and Municipal Authorities (LGMA) constituency, “which represents the voice of cities and regions in the UNFCCC negotiation process,” made a call toward “governments, financial organizations, the private sector, academic institutions, and NGOs” to provide support to the COP27 Presidency’s new multi-level climate governance plan, the Sustainable Urban Resilience for the Next Generation (SURGe) initiative.

Cities are not subject to an enforcement mechanism provision placed into a treaty signed by countries, but are still making the push because they face the brunt of the effects of climate change, and because they are also the largest contributors to greenhouse gas emissions.

Beyond cities, the people have not kept quiet in the absence of enforcement mechanism provisions. For example, loss and damage, including the establishment of a fund, is prominently on the agenda at COP27, which has never been the case at previous COPs. This addition is most likely driven by the voices of angry constituents in developing countries who have faced direct effects of climate change.

Even now, we find activists at COP demanding “a Loss and Damage Fund to compensate developing countries for the impacts of climate change.” The voices of those outside of the original system are beginning to be heard, not as a result of any sort of enforcement mechanism that incentivizes them to act, but because of lived experience and the motivation to reshape the regime while protecting the lives of millions.

These last few years have thus shown that the international climate regime elevates itself beyond mere “good advice,” as non-state actors have been incentivized to bring forth novel and effective proposals to combat the climate emergency. And although there is still a lot of ground to cover to reach many of the goals set by participating countries, whether that be filling in gaps or reaching funding targets, COP27 is showing us that new voices and new actions are a powerful force in the fight against climate change—a force that hopefully will move efforts forward even without stringent and explicit enforcement mechanism provisions.

Mostafa El-Harazi

Juris Doctor Student, Carey School of Law

Mostafa El-Harazi is a juris doctor student at the University of Pennsylvania Carey School of Law.

Noor Irshaidat

Juris Doctor Student, Carey School of Law

Noor Irshaidat is a juris doctor student at the University of Pennsylvania Carey School of Law.