Environmental Law and Global Legal Challenges

Confronting Environmental Law’s Limitations in the Face of Global Ecological Threats

Environmental law both in its municipal and international avatars has emerged as a dynamic legal discipline aimed at reconciling the imperatives of ecological preservation with the complexities of modern development. It establishes a juridical architecture to regulate anthropogenic conduct that threatens the integrity of the biosphere. Yet, despite the proliferation of environmental norms and institutions, the planet faces escalating ecological crises indicative of a widening chasm between normative aspirations and enforceable commitments in global environmental governance.

Domestic and International Legal Frameworks: Evolution and Fragmentation

At the domestic plane, environmental statutes have expanded significantly, reflecting a state’s parents patriae duty to safeguard natural resources. In India, for instance, the Environment (Protection) Act, 1986, enacted under Article 253 of the Constitution following the Bhopal disaster, vests plenary powers in the central government to promulgate subordinate legislation for environmental protection.[1] Jurisprudential developments, such as the recognition of the right to a wholesome environment under Article 21 of the Indian Constitution in Subhash Kumar v State of Bihar, underscore the constitutionalising of environmental rights.[2] Similarly, the United States’ Clean Air Act and Clean Water Act demonstrate regulatory ambition to mitigate pollution at source through command-and-control instruments.

On the international plane, environmental law is constituted by a constellation of treaties, customary norms, soft law instruments, and institutional mechanisms. The Stockholm Declaration of 1972 articulated for the first time the principle that “man bears a solemn responsibility to protect and improve the environment.”[3] It laid the groundwork for the Rio Declaration (1992), which codified foundational precepts such as sustainable development, precautionary principle, intergenerational equity, and the polluter-pays principle.[4] The Paris Agreement (2015), hailed as a diplomatic triumph, seeks to limit global temperature rise to well below 2°C above pre-industrial levels.[5] However, its reliance on nationally determined contributions (NDCs) and lack of justiciable obligations exposes the architecture of international climate law to criticism for being normatively persuasive yet legally impotent.

Global Legal Challenges: Between Normativity and Enforcement

1. The Compliance Conundrum in Climate Governance: -One of the most intractable challenges of international environmental law is its deficit in enforceability. The Paris Agreement, though aspirational, imposes no punitive measures for non-compliance, rendering it susceptible to political withdrawal and weak implementation[6]. This phenomenon, referred to as “soft law entrapment,” undermines the efficacy of treaty-based climate action and emboldens states to act opportunistically without legal repercussions.[7]
2. Sovereignty v. Supranationalism: The Jurisdictional Tension: –The principle of state sovereignty, enshrined in Article 2(1) of the UN Charter, often conflicts with the transboundary nature of environmental harms. While ecological degradation does not respect territorial boundaries, the enforcement of global environmental norms is often resisted on grounds of domestic primacy and non-intervention. The Amazon deforestation issue exemplifies this dilemma, where Brazil invokes national development prerogatives while the global community asserts ecological stewardship obligations[8]. Such conflicts reveal the absence of coercive supranational authority in environmental adjudication.
3. Trade-Environment Nexus: Normative Discord in WTO Law: – Tensions between trade liberalisation and environmental regulation present another legal impasse. Measures aimed at environmental protection such as eco-labelling or carbon border taxes are often challenged as non-tariff barriers under WTO law. In US–Shrimp, the WTO initially struck down a U.S. import restriction intended to protect endangered sea turtles, only to later validate it under the Article XX(g) environmental exception.[9] This case typifies the jurisprudential balancing required between GATT obligations and sovereign environmental measures.
4. Inequity and the Elusive Climate Justice: – A key fault line in international environmental law lies in the ongoing divide between the Global North and South. While the principle of Common but Differentiated Responsibilities (CBDR) aims to address this imbalance, it often falls short in practice. Developed nations, largely responsible for historical emissions, frequently neglect their obligations on climate finance and technology transfer.

This shortfall leaves developing countries highly exposed to climate-related disasters, with inadequate legal and financial support. Consequently, the global legal order appears structurally biased against the Global South. Despite its foundational principles, the current environmental law regime remains fragmented, weak in enforcement, and procedurally limited undermining its ability to tackle transboundary issues like climate change, biodiversity loss, and environmental displacement.

Balancing State Sovereignty and Global Environmental Obligations”

The ongoing tension between state sovereignty and global environmental duties remains a core challenge in international environmental law. While issues like climate change require collective action, states still control their domestic policies and treaty obligations. This paper examines how international law navigates this conflict through key doctrines, treaties, case law, and state practice. It argues for a reimagined sovereignty one that supports shared responsibility and legal accountability without compromising national interests.

Traditionally, sovereignty gave states full control over internal matters. However, global environmental crises have weakened this notion, as international law increasingly demands action to prevent cross-border harm. This study evaluates whether existing legal frameworks effectively balance these competing demands.

Sovereignty in International Law: A Foundational Principle

Sovereignty, as outlined in the Montevideo Convention (1933), includes legal independence, territorial authority, and the ability to engage in international relations. The UN Charter (Articles 2(1) and 2(7)) explains the principles of sovereign equality and non-intervention. However, sovereignty is not absolute. Under international law, obligations erga omnes like the prohibition of genocide or transboundary environmental harm override strict notions of sovereignty. In the Corfu Channel Case (UK v Albania, 1949), the ICJ affirmed that states must not permit their territory to be used in ways that harm other states, a principle now extended to environmental protection.

Environmental Obligations under International Law

Customary Norms and General Principles

The principle of “sic utere tuo ut alienum non laedas” (use your property so as not to harm others) underpins environmental responsibilities. As articulated in the Trail Smelter Arbitration (1938/1941), states are liable for transboundary pollution caused from within their territory.

The no-harm rule, reaffirmed in Principle 21 of the Stockholm Declaration (1972) and Principle 2 of the Rio Declaration (1992), allows states to exploit their resources pursuant to their environmental policies but requires them to avoid causing damage beyond their borders.

• Legal Tension: Sovereignty vs. Environmental Commitments
• Procedural Sovereignty vs. Substantive Obligations

Treaties like the Paris Agreement uphold procedural sovereignty by allowing states to self-determine NDCs. However, they also establish binding procedural duties, including transparent reporting under the Enhanced Transparency Framework (Art. 13). Thus, states must account for their actions even if outcomes remain non-binding.

Withdrawal and Non-Compliance

The ability of states to withdraw or fail to comply undermines the effectiveness of global obligations. The United States’ withdrawal from the Paris Agreement (2017–2021) underlined how sovereignty could be invoked to avoid compliance. Similarly, Canada’s withdrawal from the Kyoto Protocol (2011) demonstrated the absence of legal sanctions for treaty non-performance.

Sovereign Inequality and Common But Differentiated Responsibilities (CBDR)

CBDR, as endorsed in Principle 7 of the Rio Declaration and codified in Article 3(1) of the UNFCCC, reflects that developing states have different capabilities and responsibilities. However, this principle also fuels disputes, with developed countries demanding stricter uniform standards and developing countries asserting sovereign developmental rights.

• Jurisprudence and Judicial Enforcement
• Urgenda Foundation v. State of Netherlands (2015, 2019)

In a landmark case, the Dutch Supreme Court held that the state had a duty under Articles 2 and 8 of the European Convention on Human Rights (ECHR) to reduce greenhouse gas emissions. It established that human rights can create justiciable environmental obligations, effectively limiting sovereign discretion in environmental matters.

Greenpeace Southeast Asia v. Carbon Majors (Philippines Human Rights Commission)

This case investigated corporate and state accountability for climate change under international human rights law. Though not a court, the Commission’s recognition that climate change could violate fundamental rights suggests a growing trend of environmental judicialization across jurisdictions.

• Reconciling Sovereignty and Environmental Governance
• Concept of Sovereignty as Responsibility

The Responsibility to Protect (R2P) doctrine, though primarily applied to humanitarian crises, supports a reinterpretation of sovereignty as responsibility rather than privilege. Applying this logic, states must protect not only their citizens but also the global environment.

Environmental Procedural Rights

The Aarhus Convention (1998) embeds public rights of access to information, participation, and justice in environmental matters. It reflects a shift from state-centric sovereignty to inclusive environmental governance.

Role of International Courts and Tribunals

Although the ICJ has shown restraint in environmental adjudication, advisory opinions and regional courts such as the Inter-American Court of Human Rights (Advisory Opinion OC-23/17) increasingly link environmental degradation with human rights, thereby constraining arbitrary sovereign conduct.

The traditional Westphalian notion of absolute sovereignty is incompatible with the realities of environmental interdependence. While respecting the legitimate concerns of national autonomy, international environmental law must evolve toward a cooperative model of shared responsibility. The balance lies not in weakening sovereignty, but in reformulating it through legal obligations that prioritize collective survival and ecological justice.

Climate Commitments, Empty Promises: Rconstructing Global Environmental Accountability Through Legal Obligations and Enforcement Mechanisms

International environmental law has developed through treaties, soft law, and principles like sustainable development and CBDR. Yet, the ongoing ecological crisis reveals a gap between legal promises and real action. This paper critiques IEL’s reliance on voluntary commitments and weak enforcement, using examples like the UNFCCC, Paris Agreement, and cases such as Urgenda v Netherlands. It advocates for stronger, binding obligations and greater judicial oversight. Emerging tools like ESG norms, intergenerational litigation, and advisory roles of international courts are explored to enhance accountability. The paper calls for a shift toward a rights-based, enforceable, and globally monitored environmental legal system.

Legal Architecture of International Environmental Law: Normative Evolution or Legal Evasion?

The development of international environmental law began with the 1972 Stockholm Declaration, followed by instruments like the 1982 World Charter for Nature and the 1992 Rio Declaration, which promoted key principles such as sustainable development and CBDR. However, these largely fall under soft law, offering guidance without legal force. Even the Paris Agreement, while procedurally binding in aspects like NDC reporting, lacks enforceable emission targets. Its provisions, such as Article 4(2), require parties to commit to efforts but impose no penalties for non-compliance, weakening its effectiveness in achieving climate goals.

Structural and Doctrinal Challenges in Environmental Enforcement

The weaknesses of the existing IEL framework stem from multiple, interconnected legal and structural impediments:

Soft Law Hegemony-The widespread use of soft law in international environmental law, seen in instruments like the Rio Principles, SDG goals, and core aspects of the Paris Agreement, illustrates the outcome of political bargaining and compromise. This reliance on non-binding norms highlights the challenges of achieving consensus in a system driven by diverse state interests.[10]

State Sovereignty and Non-Intervention– The traditional doctrine of sovereignty remains the bedrock of international law, often obstructing the supranational enforcement of environmental obligations. The principle of non-intervention inhibits international bodies from coercively monitoring or correcting state conduct in the environmental domain.[11] This sovereignty-first approach results in legal pluralism, regulatory inconsistency, and a chronic implementation gap.

Absence of Compulsory Jurisdiction-There is no centralised international tribunal with compulsory jurisdiction over environmental disputes. While bodies like the ICJ and ITLOS can provide advisory opinions or adjudicate inter-state claims, access is limited and their jurisdiction is not automatic.[12] Similarly, environmental treaty bodies lack coercive authority, with compliance often assessed through peer-review mechanisms or voluntary reporting procedures.

Treaty Exit and Political Opportunism:-The United States’ withdrawal from the Paris Agreement in 2017 and its re-entry in 2021 illustrate the precariousness of international environmental commitments. Under Article 28 of the Paris Agreement, parties may withdraw without facing legal consequences, thereby undermining the durability and credibility of the regime.[13]

Legal Innovations and Judicial Interventions: Case Studies and Emerging Practices

Urgenda Foundation v. State of the Netherlands (2019):In a groundbreaking ruling, the Supreme Court of the Netherlands affirmed that the government has a legal duty to reduce greenhouse gas emissions, grounding this obligation in Articles 2 and 8 of the European Convention on Human Rights. The court held that failing to take adequate climate action endangers the right to life and the right to private and family life. This judgment set a powerful precedent, demonstrating how human rights law can be used to hold states accountable for environmental harm and climate inaction.

National Green Tribunal (India)The National Green Tribunal Act, 2010,:-

The National Green Tribunal, created under the National Green Tribunal Act, 2010, serves as a dedicated forum for environmental litigation, empowered to award relief and compensation for ecological harm. Drawing upon an expansive interpretation of Article 21 of the Indian Constitution, NGT has recognised the right to a clean and healthy environment as an essential component of the fundamental right to life.

The Tribunal has delivered several landmark rulings such as those targeting illegal mining and water pollution. However, its effectiveness is frequently limited by administrative delays, weak compliance by authorities, and insufficient enforcement mechanisms.

International Advisory Proceedings and Soft Judicialisation:- In recent years, there has been a renewed push for seeking advisory opinions from the ICJ and ITLOS on the legal obligations of states in relation to climate change.[14] These proceedings, while not binding, have the potential to clarify legal norms, elevate customary international law standards, and exert persuasive authority on domestic courts and arbitral tribunals.

Conclusion:

Despite the expansion of international environmental norms, the global ecological crisis worsens highlighting a major flaw in international environmental law (IEL): its dependence on soft law, voluntary action, and political will. Agreements like the Paris Accord lack enforceable commitments, allowing non-compliance without consequences.

This paper identifies the absence of binding targets, sanctions, and centralized enforcement as key weaknesses. Political resistance and sovereignty concern further dilute treaty effectiveness. However, cases like Urgenda v. Netherlands and institutions like India’s NGT reflect a growing judicial push toward accountability through environmental rights and public trust principles.

To address the climate emergency, IEL must adopt binding norms, create adjudicatory bodies, and redefine sovereignty as collective ecological responsibility. Enhancing corporate ESG duties and integrating environmental rights with human rights are essential reforms. Ultimately, IEL’s credibility depends on shifting from voluntary frameworks to enforceable legal mechanisms.

Reference(S):

[1] Environment (Protection) Act 1986 (India), s 3; Constitution of India, art 253.

[2]  Subhash Kumar v State of Bihar AIR 1991 SC 420 (SC).

[3] Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972) UN Doc A/CONF.48/14/Rev.1.

[4] N Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ (14 June 1992) UN Doc A/CONF.151/26 (Vol. I).

[5] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UNTS No. I-54113

[6] Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press 2010) 232.

[7] Lavanya Rajamani, ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics’ (2016) 65(2) International and Comparative Law Quarterly 493.

[8] Peter H Sand, ‘Sovereignty Bounded: Public Trusteeship for Common Pool Resources?’ (2004) 4 Global Environmental Politics 47.

[9] United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (WTO Appellate Body Report, 6 November 1998).

[10] Alan Boyle and Christine Chinkin, The Making of International Law (OUP 2007) 211–13.

[11] case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7, para 85.

[12] Jorge E Viñuales, ‘The Contribution of the International Court of Justice to the Development of International Environmental Law’ (2013) 32(3) Fordham ILJ 232.

[13] Paris Agreement, Art 28.

[14] Request for Advisory Opinion submitted to ITLOS by the Commission of Small Island States on Climate Change and International Law (2022)