Prospects for a legally-binding international climate deal

With the glacial pace of the international climate change negotiations, it is easy to conclude that nothing ever changes. But a look back a few years suggests a different conclusion: things are moving, and the prospects for a medium to long-term legally-binding outcome in the UNFCCC process are now better than ever. Just don’t expect too much from the next COP in Durban.

Here are some of the bigger shifts. First, the prospects for a wide, inclusive ‘second commitment period’ (CP2) of the Kyoto Protocol – necessary after the first one runs out at the end of 2012 – have diminished considerably. Japan, Canada and Russia have stated definitively that they will stay out of any new Kyoto round, and there isn’t the slightest chance that the US will join. That leaves only the EU in the Kyoto-enthusiast camp, with Australia and New Zealand less enthusiastic but still prepared to consider a CP2 if other ‘big emitters’ take parallel action. However, this leaves Kyoto itself covering less than a fifth of global CO2 emissions with binding targets. Clearly something else is needed to control climate change.

This undeniable arithmetic brings us to the second point. Over the past few years it has become steadily more acceptable to talk about legally binding targets of some form for developing countries – those that, as ‘Non-Annex 1 parties’, were left out of the First Commitment period of Kyoto, which applied only to industrialised ‘Annex 1’ nations. The G77 + China group of developing countries still typically insists that a Kyoto CP2 is a precondition for moving forward on their own possible targets, but the rhetoric has been increasingly moderate of late, as the focus of the negotiations shifts away from Kyoto and back to the climate Convention, which includes all parties.

I have just returned from a meeting of the Cartagena Dialogue countries in Samoa, where perhaps the central topic was that of ‘legal form’ – the eventual shape of a treaty or combination of treaties which will cover everyone in one way or another. As well as a commitment to high ambition, this desire to craft a treaty which is as legally binding as possible is the main issue which unites the Cartagena Dialogue countries (which numbers about 40 nations, from various EU countries to Mexico, Colombia, Bangladesh, Maldives and Indonesia, from the G77 camp). And make no mistake: the prospects for keeping climate change within tolerable bounds depend on this more than anything else. There really is no alternative to united international action within a legally-binding framework.

The desire to get around the ‘Kyoto or bust’ impasse has led to some increasingly creative proposals. One that has particularly caught my attention comes from some EU parties, which are trying to find a constructive way to keep Kyoto alive whilst still making progress on the ‘Long-Term Cooperative Action’ (LCA) track under the Convention, which will eventually bring China, the US and everyone else into a more united framework. The idea is basically to take a longer-term view: a second commitment period would be launched only on the understanding that it would be the last (there will be no third commitment period, in other words) and that it should be seen as a transition process towards a single-treaty outcome from 2018-20 which will include everyone – Annex 1 and non-Annex 1 parties together.

It is already too late to prevent there being a Kyoto gap after 2012, so we urgently need to find some legal stop-gap measures to keep the treaty in force, and protect its useful mechanisms and accounting rules from disappearing. But the new idea is that the adoption of a Kyoto CP2 would need to be linked with the agreement of a formal mandate (plus a timeline) in Durban for a new round of negotiations towards a legal instrument that would include all parties. At last we can begin to look towards the day when the ‘Berlin Wall’ division between rich and poor countries, formalised first at the signing of the Climate Convention in 1992 but today increasingly an anachronism, becomes largely irrelevant. This does not mean getting rid of the vital ‘common but differentiated responsibilities’ principle, but it will allow for greater flexibility in rapidly changing times where the focus of emissions is shifting geographically as once-poor countries take their great economic leap forwards.

This will all take time, and 2020 is a long way away. But there is plenty to be getting on with, in terms of operationalising the Cancun decisions, and making progress on important accounting issues like MRV (monitoring, reporting and verification) of emissions, and implementing the pledges of emissions reductions that have already been made by almost all parties – even though these are not yet legally binding. There is also the matter of the Review of the Global Goal, due to be completed by 2015, which keeps alive the possibility of a much stronger ambition for mitigation (limiting temperature rises to 1.5C rather than 2C). Everyone knows that the window for actually achieving this is closing, however, given that global emissions must peak in the next few years to have anything but a slim chance of keeping warming to 1.5C. So the global goal negotiations can be an important driver of increased ambition even as the formal legal nature of the eventual regime remains undecided.

In conclusion, the political landscape is very different from the depressing situation the world faced at Copenhagen. There is much to do, and no-one should be complacent. But increasing numbers of developing countries are going straight for low-carbon development, and there seems to be a gradual shift in the climate narrative from mitigation being seen a burden to it being recognised as an opportunity. As China surges ahead in clean-tech options, the pressure on the US to follow suit can only increase. And in the process we can look forward to the day when the two leading global emitters join a legal framework which mandates them both to transition towards eventual carbon neutrality.


  1. Karl-Friedrich Lenz

    The Kyoto negotiations are not the only ones stuck. The WTO is in a “Doha” round since 2001, without any agreement in sight.

    What people are doing in international trade is go the way of bilateral agreements. A free trade agreement of the EU with Korea has come into force in July, and the EU and Japan have agreed to start negotiations.

    That agreement with Korea also contains a section on climate change, though only rudimentary, in Article 13.5:

    “3. The Parties reaffirm their commitment to reaching the ultimate objective of the United Nations Framework Convention on Climate Change and its Kyoto Protocol. They commit to cooperating on the development of the future international climate change framework in accordance with the Bali Action Plan2.”

    That one paragraph is all in this FTA, but there is nothing to keep the EU and Japan to sign on to a more ambitious text when negotiating their FTA.

  2. Karl-Friedrich Lenz

    That should have been

    “keep the EU and Japan from signing on”

    in the last sentence there.

  3. Tom Blees

    I wish I could be optimistic about these agreements, but the people who play a major role in developing them are often the same ones who are reflexively anti-nuclear and insist on nuclear power not being part of the solution. Thus we’re left with fantasy-based energy visions and emissions targets that are as vacuous as ever. The targets will only have any real punch when there are credible methods of reaching them that are being implemented by all the parties involved.

    There’s a good discussion going on (as there often is) at Barry Brook’s regarding Germany’s situation. That country has most definitely decided to be the global guinea pig when it comes to an all-renewable non-nuclear future. So far the results are far from promising.

    The road to hell is paved with good intentions.

  4. framo

    The pre-occupation with legal form is a mistake, I think, for a couple of reasons. (1) in the absence of credible sanctions it isn’t very meaningful, and the absence of credible sanctions is a prerequisite for countries agreeing to bear a legal burden; (2) the Annex/non-Annex dichotomy is an anachronism, but the emerging economies that really hold the ace in the pack aren’t going to agree to legally binding targets; (3) my suspicion is that developed countries find it way more electorally palatable to present climate policy as a piece of piece of philanthropy than as an obligation.

    On this last point, consider how people view their charitable donations vs their tax obligations: A gives B £10k per year; if it’s charitable giving then A gets to feel good about his largesse; if it’s a tax payment then he hasn’t done anything more worthy than merrely discharging his legal obligations, and B can claim it was “owed” to him. The whole psychology changes when something moves from being voluntary to being compulsory, even if you were going to do it anyway, since the move alienates the donor from the moral act of giving.

  5. Grace Joubarne

    “Over the past few years it has become steadily more acceptable to talk about legally binding targets of some form for developing countries – those that, as ‘Non-Annex 1 parties’, were left out of the First Commitment period of Kyoto, which applied only to industrialised ‘Annex 1′ nations.”

    As a lay person very concerned about this issue, it seems to me that it is already over-burdened with complexity, complication and power broker machinations to have any real impact in time.

    I do not like the idea, but it seems that the only thing that will motivate the politicians will be ongoing, devastating, shocking climate catastrophes… and that once those start it will be too late.

    The citizens of this planet must take this decision away from the companies and the politicians through small actions like voting with our wallets… The powers that be have shown that they are unmotivated and unwilling to threaten the status quo.

  6. Shaheer

    A new report by David Wasdell show that climate sensitivity may be far higher than expected. Both Charney and Hansen sensitivity may be grossly underestimated. I haven’t read over the report fully since it’s late, but it seems interesting.

    “A multi-disciplinary approach, independent of any climate model, and supported by a specially designed Graphic Simulator, identifies a (minimum) value for the Earth System Sensitivity of 7.8ºC for the equilibrium outcome of doubling the concentration of atmospheric CO2. That is an Amplification Factor of 6.5 times the effect of the CO2 on its own. The new value has a much higher degree of certainty than the Charney Sensitivity and indicates that the current conservative estimate of climate sensitivity falls far short of reality and must be increased by a factor of just over 2½ times. This new value of the Earth System Sensitivity (ESS) should now replace the Charney Sensitivity.”


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