Leave room for legal ambition in the Paris Agreement

A picture taken on January 14, 2015 shows the logo of the upcoming UN Climate Change Conference, the Cop 21 summit in Paris, on January 14, 2015. AFP PHOTO /JACQUES DEMARTHONThe Paris climate agreement expected in December should include the option for countries to take on legally binding targets, even if no country is willing to enlist initially

The phrase “changing global realities” is heard often in sustainable development negotiations these days. It is usually used by developed countries as an argument to obliterate the distinction between “developed” and “developing” countries, agreed under the principle of common but differentiated responsibilities at the 1992 UN Conference on Environment and Development.

Global realities have indeed changed since the 1990s. But in the climate change negotiations and in the run up to the Paris conference later this year, it would seem that plus ça change, plus c’est la même chose – the more things change, the more they stay the same. For those of us who witnessed the negotiations for the Kyoto Protocol, the power dynamics at play today are very similar to those that sank ambition to rock bottom in 1997.

We now appear to be ready to flag off another race to the bottom in Paris. Unless we learn from our Kyoto experience, the continued lack of ambition and leadership from some countries will continue to hold us down, and cost humanity dearly.

What happened at Kyoto?

This story is part of climate folklore – the following brief version serves to refresh our collective memories.

The EU arrived in Kyoto with the most ambition (a 15-20% reduction in emissions below 1990 levels by 2010). They were not willing to take on this reduction on their own, however, and wanted comparable targets for other industrialised countries.

The US was only willing to stabilise emissions to 1990 levels by 2010. Along with the rest of JUSSCANNZ (which in Kyoto included Japan, US, Switzerland, Canada, Australia, Norway and New Zealand), the US also insisted on “meaningful participation” from developing countries. This was not part of the Berlin Mandate, which explicitly stated that there should be no new commitments for developing countries.

In the run up to Kyoto and at the Conference, the US was treated with kid gloves. Nothing too ambitious could be put on the table for fear of scaring the Americans away, and the world bent over backwards to offer all sorts of concessions. Even among the NGO community, words like “equity”, “justice” and “fairness” were verboten. The world’s largest emitter had to be on board the agreement, no matter what the cost.

This was selective blindness on part of the international community. To those of us who wanted the US on board but not at any cost, it was very clear that all the good will and flexibility in the world would not buy Clinton and Gore support from the Senate, which had passed the infamous “Byrd-Hagel resolution” earlier that year.

The way we saw it in the South, the EU and the rest of the developed world hid behind the US’ lack of ambition. Kyoto became all about killing, instead of encouraging, ambition. The EU’s target was negotiated down to 8%. The US agreed to a 7% reduction during the same period, and every conceivable flexibility was built into the Protocol to lessen the pain further for the world’s rich countries.

The US had worked overtime to kill ambition in the Protocol. Yet, Bush Junior ultimately rejected even the watered-down treaty. Instead of ratifying it, the Americans simply upped and left.

This was a nasty game played on the planet and its people, particularly on the poor. The rest of the world was complicit: we deliberately refused to see the signs.

What is expected to happen in Paris?

This time round, we have meaningful participation from developing countries. This is the changing global reality. What remains the same is the zero sum game that the US is still playing, with other countries still hiding behind its petticoats.

With the largest Republican majority in the US Congress since 1929 still denying human influence on climate change and still unwilling to support any “disparity in treatment” between the US and developing countries, President Barack Obama still cannot obtain a two-thirds majority to support a strong climate regime with legally binding emission cuts, determined fairly in the context of an overall global temperature goal. “[O]ur politics is going through a particularly broken period,” Obama said in an interview on climate change to Rolling Stone magazine. “Congress has trouble passing a transportation bill, much less solving big problems like this.”

Instead, the US has been pushing for a à la carte approach in the global negotiations, where countries decide their own targets, under flexible rules that are applicable to all countries. It is becoming clearer every day that this approach, adopted at the 2013 Warsaw Conference to appease the US, will not result in the sort of ambitious emission cuts needed to keep global temperature rise to below 2°C. The “Intended Nationally Determined Contributions” (INDCs) do not rise to necessary level of ambition.

Moreover, what is the legal certainty that even these unambitious “contributions” will be met?

The US plans to deliver its INDC through Presidential executive orders. These have limitations – they can be reversed by future administrations, and the Congress can pass a law to cut funding for the order’s implementation. The saber-rattling has already begun. “Our international partners should proceed with caution before entering into a binding, unattainable deal,” Republican Senator Mitch McConnell, a critic of the Obama administration’s plan to address climate change, is quoted as saying in The New York Times. He warns that two-thirds of the US federal government not yet signed off on to the plan, and 13 states have pledged to fight it. Another Republican Senator, Roy Blunt, has put together legislation to nullify Obama’s international climate change agreements, which Republican leaders may try to add as an amendment to must-pass legislation, according to the NYT story.

Despite the massive uncertainty surrounding the US position, the EU has rather hastily abandoned its attempt at leadership – at the 2014 Lima Conference, the Union had in fact called for legally binding cuts for all. But this proposal is no longer on the table.

So the world has in effect already given up internationally determined reduction targets and legal ambition to keep the US in the game. The race to the bottom is well underway.

Is legal ambition still possible in Paris?

“[T]he key for Paris is just to make sure that everybody is locked in,” Obama said in the interview. “Once we get [the structure right], then we can turn the dials.”

The design of the Paris Agreement must, in that case, include dials that can be turned up later to ratchet up ambition levels. Can this be done in the context of legal ambition?

It is certainly still possible to build in the flexibility of a separate list, where countries can choose to be listed if they wish to make their contributions legally binding. In fact, even if no country chooses to enlist in Paris, they should have the flexibility to so at a later stage. Why should the international community kill even “intended nationally determined” legal ambition?

It is not yet clear where the INDCs will be housed – whether they will be part of the Agreement itself as an Annex, or whether they will be referred to in the Agreement and housed separately.

It has been argued that the Kyoto Protocol’s Annexes actually limited the longevity of the Protocol – the entire Protocol had to be amended and re-ratified when Annex B expired. It could actually make the Paris Agreement more durable if country contributions are referred to in the Agreement, but are themselves part of decisions outside the Agreement. As long as there is no backsliding, this could allow countries the flexibility of later “turning the dials” to ratchet up the ambition of their INDCs.

Likewise, a list for “nationally determined legal ambition” could be housed outside the Agreement. Instead of ratification, countries could perhaps take up the option of treating them as Unilateral Declarations. As long as these Declarations are public, and manifest the country’s will to be bound, they are considered legally binding. This option may even allow the US to sign on – as it did to avoid a breakdown of the second Strategic Arms Limitation Talks (Salt II).

Such an arrangement would certainly give the international community more assurance. But why would a country choose to be legally bound under the Paris Agreement, if it doesn’t have to be?

The answer, quite simply, is that it would afford more domestic political certainty, preventing future administrations from reversing commitments or contributions; and provide sought-after certainty to the private sector, so they can confidently scale up their investments in clean technologies.

“The global business community needs certainty to bring climate solutions to scale,” Google Executive Chairman Eric Schmidt wrote recently. “We need the world’s political leaders to confirm that investments in clean energy are sound, and that the laws and policies meant to enable such investment will be designed for the long term and rooted in what science tells us needs to be done.”

Solving the climate change problem “is going to require that our politics catches up with the facts,” Obama said in his interview in Rolling Stone. It would be a pity if politics catches up during the lifetime of the Paris Agreement, but the room for increasing legal ambition simply doesn’t exist.

Equally, it would be a shame if “changing global realities” only meant more responsibility and flexibility from developing countries, while developed countries continue with business as usual.

This entry was posted in Climate change, climate change and poverty, COP21 UNFCCC, Global governance, INDCs, Paris Climate Conference, Poverty, Sustainable Development Goals and tagged , , , , , , . Bookmark the permalink.

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