Contemporary issue: barriers to achieving an international response to global environmental protection: HSC Legal Studies

What this dot point is asking

Barriers to achieving an international response to global environmental protection is the fourth contemporary issue that must be studied. You must identify and investigate what stops states from responding together, and evaluate the effectiveness of legal and non-legal responses to those barriers.

This issue pulls the option together. It is where the theme of state sovereignty is sharpest, and it explains why the law has succeeded against some threats and failed against others. The 2023 HSC asked "To what extent do legal processes address barriers to the protection of the global environment?", and NESA's feedback asked students to explain how legal processes address barriers (not just list treaties) and to explain and evidence sovereignty as a barrier.

The answer

Identifying the barriers

1. State sovereignty. The most fundamental barrier. A state is bound only by the treaties it accepts (Vienna Convention on the Law of Treaties art 34) and can withdraw from them. Examples:

• The United States never ratified Kyoto, is not a party to the Convention on Biological Diversity, and has now withdrawn from the Paris Agreement twice. Its latest withdrawal took effect on 27 January 2026, and on 27 February 2026 it notified its withdrawal from the UNFCCC, effective 27 February 2027; it will be the first state ever to leave the framework convention.
• Canada withdrew from Kyoto (effective 2012) rather than miss its target; Japan left the International Whaling Commission (2019) after losing in the ICJ.
• States control their natural resources (permanent sovereignty, UNGA resolution 1803), so the decision to open a coal mine or gas field is national.

2. Economic interests

Environmental protection has upfront costs, and its benefits are shared and long term. States whose economies depend on fossil fuels resist limits on production. In August 2025 the resumed plastics treaty negotiations in Geneva ended without agreement, largely because oil and plastic-producing states opposed caps on plastic production. In October 2025 members of the International Maritime Organization voted to adjourn adoption of a global net-zero framework for shipping for a year, amid open opposition from the United States. Governments also fear losing competitiveness if they act while others do not (carbon leakage).

3. The developed and developing divide

Developed states produced most historical emissions; developing states need energy for growth and are most exposed to harm. The principle of common but differentiated responsibilities (Rio Principle 7; UNFCCC art 3) recognises this, but disputes about finance, responsibility and compensation slow every negotiation. At COP29 (Baku, 2024) parties set a goal of at least USD 300 billion a year by 2035, which developing countries described as far too low; a loss and damage fund was agreed at COP27 and operationalised at COP28, but pledges are small compared with estimated losses.

4. Consensus decision-making

Most environmental negotiations proceed by consensus, giving every state a potential veto and producing lowest-common-denominator outcomes. At COP30 (Belém, 2025) a roadmap for transitioning away from fossil fuels, backed by more than 80 countries, could not achieve consensus and was left out of the formal decision; the Brazilian presidency promised to develop it outside the UN process.

5. Weak enforcement and compliance

International environmental law has no police force. The Paris Agreement's compliance committee is "facilitative" and "non-punitive" (art 15). The ICJ can only hear contentious cases between states that consent, and its advisory opinions are not binding. Even when a state loses a case, it may comply in form but not in substance, as Japan did after Whaling in the Antarctic (2014).

6. Political change, lobbying and misinformation

Commitments made by one government can be reversed by the next: the United States has joined and left Paris twice; Australia introduced a carbon price in 2012 and repealed it in 2014. Industry lobbying and misinformation about climate science weaken public support for costly action.

7. Geopolitics and scientific uncertainty

Conflicts and rivalry between major powers reduce cooperation, and uncertainty about impacts (for example in the deep sea) can be used to delay action, which is why the precautionary principle matters.

How legal processes address the barriers

Designing treaties for participation

The Paris Agreement responds to sovereignty by letting each state set its own NDC, in exchange for binding procedural obligations: communicate an NDC every five years, show progression, report through the enhanced transparency framework (art 13) and take part in the global stocktake (art 14). This achieved near-universal participation (194 parties), but at the cost of ambition: UNEP's Emissions Gap Report 2025 projects 2.3 to 2.5°C with full implementation.

Paying for compliance

The Montreal Protocol overcame economic and equity barriers with the Multilateral Fund, which pays developing countries' costs, and longer timetables for them. The climate regime has copied the idea through the Global Environment Facility, the Green Climate Fund, the COP29 finance goal and the loss and damage fund, though at a far smaller scale relative to need.

Using trade and incentives

Montreal restricted trade in controlled substances with non-parties, making it costly to stay out. The WTO Agreement on Fisheries Subsidies (in force 15 September 2025) uses binding trade rules to stop subsidies that drive overfishing.

Moving beyond consensus

Montreal Protocol adjustments to phase-out schedules can be adopted by a two-thirds majority and then bind all parties (art 2(9)), a rare exception to the consent rule. The IMO's vote in 2025 shows that majority voting cuts both ways.

Courts clarifying obligations

The ICJ advisory opinion (23 July 2025) addresses the non-participation barrier by finding that customary international law obliges every state to prevent significant harm to the climate system, whether or not it is a party to the climate treaties, and that failing to do so, including through fossil fuel production and subsidies, may be an internationally wrongful act. ITLOS (2024) found emissions are marine pollution under UNCLOS. These opinions are not binding, but they are authoritative and are being used in domestic litigation.

Domestic courts

National and regional courts enforce climate obligations against their own governments: Urgenda (Netherlands, 2019), KlimaSeniorinnen (European Court of Human Rights, 2024). In Australia, courts have been more cautious (Sharma, 2022; Pabai, 2025), leaving action to Parliament.

Institutions and transparency

UNEP, the IPCC and the UNFCCC secretariat keep the science and data public, which makes non-compliance visible and politically costly.

Non-legal responses

• Coalitions. Groups such as the Alliance of Small Island States and the High Ambition Coalition push for stronger outcomes; Vanuatu's coalition carried General Assembly resolution 77/276 by consensus.
• Sub-national and non-state action. States, provinces, cities and companies continue to act when national governments withdraw; many US states and cities kept climate policies after the federal withdrawal.
• NGOs and youth movements keep pressure on governments and expose misinformation and greenwashing; Pacific students began the ICJ case.
• Media can build or erode public support; misinformation is itself a barrier.
• Diplomacy. Arrangements such as Australia and Türkiye sharing COP31 roles (Antalya, November 2026) keep negotiations moving.

Evaluating the responses

Judgement. Legal processes address the barriers to an international response to a limited extent. They have been most successful at overcoming economic and equity barriers where the costs were manageable and money and trade incentives were available, which is why the Montreal Protocol worked. Treaty design (Paris) has overcome the participation barrier, and courts (the ICJ in 2025) have narrowed the enforcement gap by clarifying that obligations are legal. But no legal process can override state sovereignty: states still decide their own targets, can block consensus, and can walk away, as the United States has done in 2026. In practice, legal processes reduce the barriers rather than remove them, and non-legal pressure from coalitions, NGOs, the media and sub-national governments is needed to keep the response moving.

In one sentence

The barriers to an international environmental response are sovereignty, economic interests, the divide between rich and poor states, consensus rules, weak enforcement and political instability, and although legal processes such as funded treaties, flexible Paris-style commitments and the ICJ's 2025 opinion reduce those barriers, none can override a sovereign state's choice to set weak targets, block agreement or withdraw.

Try this

Q1. Identify THREE barriers to achieving an international response to global environmental protection. (3 marks)

• What the marker wants. Three distinct barriers, for example sovereignty, economic interests and consensus decision-making.

Q2. Explain how the Montreal Protocol overcame barriers to international cooperation. (6 marks)

• What the marker wants. Multilateral Fund, differentiated timetables, trade measures, two-thirds adjustments, and the result.

Q3. To what extent has the United States' withdrawal from the Paris Agreement shown that sovereignty is the main barrier to global environmental protection? (15 marks)

• What the marker wants. The withdrawals (2026 and 2027), other barriers, the legal responses (customary duties, ICJ opinion, sub-national action), and a judgement.