The Hyper Political Nature of International Environmental Law

The recent post by Daniel Bodansky and Suan Biniaz on the possible chilling effects of the ICJ’s advisory opinion on climate change, as well as the recent ruminations on the state of the world  and the implications this has for international law, present an opportunity to think about international environmental law more generally. Not because international environmental lawyers are not used to pondering the inherent challenges and faults of the discipline; in fact, there is a large body of critical literature discussing the failings of modern international environmental law (e.g. here). But because it is worthwhile thinking about the nature of international environmental law more generally and the context in which it and the recent advisory opinion operate.

Along these lines, Jorge Viňuales has, for example, recently observed that international environmental law is deep down split between trying to maintain an order of cooperation which facilitates environmental harmful activities whilst, at the same time, trying to prevent and minimize such harm. As a diagnostic account, I think this is largely correct. But I also think there is explanatory power gained from exploring why this might be and from considering another inherent tension in international environmental law: the tension between, on the one hand, salience and mobilization, and, on the other hand, lack of substantive and real results in response to this. This tension can be explained through the emerging prism of hyper politics. 

The hyper-political describes the context where an issue – here environmental matters – are high on the political agenda in a general sense but the direct consequences flowing from this increased attention remain elusive.  To some extent, the feature of being under-remedied has always been present in environmental law, domestically as well as internationally. Arguably, though, one feature of modern environmental law is the particularly high degree of salience afforded environmental law and governance in modern societies; environmental issues are today highly mainstreamed and found in every conceivable context. However, this high degree of salience, political attention and commitment to international environmental issues have preciously few results to show for it. Environmental challenges remain under-remedied; arguably more so than ever. This tension between salience and lack of result might usefully be described as the hyper political context of modern international environmental law. 

The Drivers of Salience

There are, on one reading, four drivers behind this tension that merit attention. First, the tension arises because international environmental law today is heavily institutionalized. The international arena is now rich with international organizations, treaty bodies, working groups, compliance committees, advisory committees and panels and institutes whose job it is to facilitate better understanding, deeper knowledge, and implementation and enforcement of international environmental law. This decade-long trend of institutionalization has been accompanied by equally strong growth in specialized non-state actors, international organizations, and environmental NGOs, who supervise, inspire, and influence the international environmental law discourse. As Koskenniemi observes: modern international environmental law grew out of a ‘specialization occupied by technical experts mirroring the functional order of domestic law.’ Modern environmental concerns were thus normalized in part by way of institutionalization.

Many of the modern international environmental law initiatives thus stand out as giving rise to a series of institutions and procedures that in themselves become the focal point for subsequent adoption of norms. Koskenniemi again: ‘to agree to a treaty is to agree to future negotiation, lifting functional expertise to a decisive position.’ Think for example of the UNFCCC regime and its subsequent agreements adopted through the Conference of the parties (COPs) but specifically the Kyoto Protocol, which famously stood out by reference to its limited commitment period, requiring the adoption of subsequent norms. Similarly, the Paris Agreement’s stand out feature is its requirement that contracting state parties regularly adopt and communicate nationally determined contributions (NDCs). That is, the Agreement pushes the adoption of its key normative instrument into the future and into domestic law, focusing instead on setting the institutional parameters of that adoption by reference to, amongst other points, common but differentiated responsibilities and levels of ambition. The increased and continuous institutionalization consequently takes place jointly at the international and the national level, affording multiple arenas for actors to influence the law and for international environmental law to present itself as a salient point of law.

Second, and related to this, is growth in technical expertise in international environmental law governance. One way in which this manifests itself is in the importance afforded to non-state actors in modern international environmental law. These organizations, on account of real and deep expertise and knowledge, perform a range of different roles and have resulted in, as Rajamani and Peel note, a diversification of actors in international environmental law. This connects with the feature of institutionalization in the context of the many conferences of the parties (COPs) that serve as the decision-making fora for key treaty regimes. These meetings have become the calling sign for thousands of non-state actors, some of whom have gained formal recognition as observers at the COP, who gather to try and influence the discourse and the official proceedings. At the first UNFCCC COP in 1995, 165 NGOs were registered whereas at COP 28 in 2024 more than 2000 NGOs were registered. This significant increase is indicative of a high and increasing degree of salience around the international treaty regimes governing, in this case, climate change.

Third, another related feature which contributes to the increase in salience and public discourse around international environmental law is the form that modern international environmental law itself takes. Here international environmental law, and environmental law in general, is increasingly more goal-focused. Take the aspirational Kunming-Montreal Global Biodiversity Framework (GBF), for example. A key feature of this is the so-called 30×30 pledge. Similarly, the key operative obligations in the Paris Agreement are shaped around the Agreement’s aspirational purpose of the 1.5C target. 

This focus on targets has the effect of making international environmental law increasingly easy to digest for the wider public. A numerical 30×30 target and an aspiration of avoiding a verifiable 1.5C increase in global average temperatures present a somewhat simple picture of what the law and its regulatory structures otherwise aim to achieve. Compared to other central international environmental law instruments, like the 1979 UNECE Convention on Long-Range Transboundary Air Pollution, which requires states to gradually phase out a range of different pollutants as these are subject to specific annexes to the original convention, the relative simplicity of focusing on numerical targets presents a body of law which at least appears straightforward (even if this is not the case) and likely also gives rise to a body of law that is increasingly performative. That is to say, international environmental law, because of the form and content of the law, has gradually contributed to a wider public understanding, which contributes to more salience. 

Fourth, modern mechanisms of enforcement of international environmental arguably also contribute to an increased salience. We have in the last couple of years witnessed an increase in so-called compliance committees established under specific treaty regimes whose job it is to secure implementation and compliance of a given treaty. In addition to the committee established under the Paris Agreement, another prominent committee is that established under the Aarhus Convention. Significantly, in the case of the Aarhus Convention, the Committee has jurisdiction to hear complaints from members of the public. 

Moreover, these Committees have few if any sanctioning powers or classic means of enforcement at their disposal. This is obviously a feature of design. The main tool of compliance for these committees is instead that of persuasion and publicity. In particular publicity becomes a central tool. This arguably contributes to an increased public awareness and discourse around state behaviour in the context of international environmental law. In other words, an increased public salience.

Hyper Political 

This then leads us to the conceptualization of modern international environmental law as operating in a high-salience discourse which does not translate into tangible outcomes.  This is where international environmental law moves towards the hyper-political. Hyper-politics signifies a high level of engagement with a matter but very little in the way of collective action and ultimate change. The term, coined by Anton Jäger, indicates that ‘today everything is again political and fervently so.’ Politics is everywhere from social media to entertainment to consumer choices to the thousands of participants in movements and non-state actors who attempt to shape the discourse around the international legal regime for climate change through participation in the COPs. As Jäger notes: 

‘from 2020 onward, millions marched against police violence, COVID policy or climate inaction, making frantic demands on their governments. In terms of turnout, these new movements could be impressive, and many of them affected unprecedented changes in public opinion.’

This increased mobilization, which international environmental law has contributed to itself, remains elusive in terms of securing a permanent imprint on policy. Jäger again 

‘On the policy front, however, the balance sheet of these political forms proved painfully ephemeral. Questions of race, climate, socioeconomic inequality, police violence and health policy remain under-remedied.’

The hyper-political discourse thus gives rise to a disconnect between the level of salience/ mobilization and the level of impact this has beyond the mobilization itself. Important environmental challenges remain under-remedied. In some sense, the increased salience of environmental issues results in disappointment with a lack of real, tangible results. 

Disappointment and Repetition 

It is in this environment that the ICJ’s recent advisory opinion emerges. This is because, if indeed the increased salience of international environmental law fails to register much of an impact, then it is reasonable to assume that this inevitably leads to disappointment. More people are invested in international environmental law than ever before but have less to show for it. Of course, the fact that the initial request for an advisory opinion succeeded, resulting in the opinion, may in the long run have significant implications and might be seen as a remarkable success in and of itself. 

In this, and in other recent claims, courts come to serve as substitutes or alternatives to legislation by clarifying and filling legislative gaps. But in this, it is important to also be alert to the risks highlighted by Bodansky and Biniaz as well as to the fact that courts often also end up conferring the status of winner or loser on the parties (at least as far as adversarial procedures go). This has the immediate effect of providing either relief and a narrative of victory or, the opposite, disillusionment and further disappointment. On this reading, the high degree of salience, leading to mobilization, disappointment and a search for alternative outlets, seem likely to continue and possibly to repeat itself. This does not mean, of course, that the present context of high salience is bad or indeed that lower or no salience is preferable. But it does raise questions about whether the hyper political result of a high degree of salience gives rise to a body of law which is, potentially, more likely to be performative.