Bodansky: Letter from the Barcelona Climate Change Talks

[Daniel Bodansky, University of Georgia School of Law and OJ guest blogger, sends this dispatch on the state of the Climate Change talks leading up to the Copenhagen Conference.  Professor Bodansky will also be blogging from Copenhagen here at Opinio Juris in December.]

Barcelona, 4 November 2009

The UN climate change negotiations resumed on Monday in Barcelona, after only a three week hiatus since the last round in Bangkok. Between the official negotiations, the parallel political meetings of the major economies forum (MEF), the Commonwealth, and APEC, the numerous bilaterals (including the upcoming Obama visit to China), and the off-line dialogues convened by Denmark, the negotiating process will essentially be non-stop between now and when the Copenhagen Conference begins on December 7.

But progress remains elusive at best. The disconnect between the political urgency surrounding the climate change issue among political leaders and the insular world of the UNFCCC negotiations is growing ever more striking.

On the one hand, most of the key countries or groups – the EU, Japan, China, Brazil, India, South Africa, Indonesia and Australia – have either adopted or appear near to adopting domestic climate change policies. And although enactment of climate change legislation by the United States remains in doubt, a major bill has already passed the House of Representatives and the Senate is now beginning its consideration of similar legislation. So, from the perspective of national climate change policies, prospects have never been brighter.

But capturing and reinforcing these national policies in an international agreement remains enormously difficult. Western countries have grown increasingly reluctant to sign onto a new agreement unless developing countries are willing to “internationalize” their national policies in some fashion. Developing countries, in return, are deeply suspicious of taking on anything that smells of an international commitment, particularly given the evident desire of Western countries to abandon the Kyoto Protocol, which enshrined a system of differentiation that developing countries love (since it unequivocally excluded them from any emissions targets). And everyone is waiting for Godot (i.e., the United States), which has perhaps over-learnt the lesson of Kyoto, and has been unwilling thus far to put forward any position on emissions targets or finance until Congress has first enacted legislation.

The Copenhagen negotiating process has two tracks: one to negotiate amendments to the Kyoto Protocol, including a second round of emissions targets for developed (“Annex B”) countries, addressing the period after 2012, when the Kyoto Protocol’s first commitment period ends (a negotiating track that doesn’t include the United States, since it is not a party to Kyoto); the other to reach a comprehensive outcome under the UN Framework Convention on Climate Change (UNFCCC), including mitigation commitments by developed countries and actions by developing countries, new financial arrangements, measures to address adaptation and technology transfer, and a system for measurement, reporting and review (MRV).

Describing the Copenhagen process thus far as a “negotiation” is a bit of a misnomer, because countries generally simply restate their positions rather than enter into an actual process of give-and-take. The negotiating text consists of a series of “non-papers” that compile all of the various national submissions, but are so long and unwieldy that it is difficult to see how they could provide a basis for actual negotiations.

Two significant developments occurred during the first days of the Barcelona meeting. First, the African group announced in the Kyoto Protocol track that it was unwilling to continue further negotiations on the Kyoto Protocol rules (for example, addressing credits for land-use activities), until the completion of work on new emissions targets for developed countries for post-2012. Since developed countries are unwilling to do so except as part of a final political deal in Copenhagen, the African group demand brought the Kyoto Protocol negotiations to a standstill. Why the African group would want to do so is difficult to understand, since African countries are highly vulnerable to climate change and are perhaps the group with the most to gain from a successful outcome in Copenhagen. Apparently, they hoped that by holding up the negotiations, they could focus attention on what they regard as the inadequate levels of emissions reductions offered by the EU and other developed countries. And, late Tuesday, the work stoppage was resolved by a decision to allocate more of the remaining time in the Kyoto Protocol negotiations to the Annex B emissions targets. But since many industrialized countries would just as soon see the Kyoto Protocol die (and be folded into a new comprehensive agreement), work slowdowns in the Kyoto negotiating track are, in my view, a poor means of exerting pressure on them to come forward with more stringent emissions targets.

Meanwhile, in the Framework Convention negotiating track, countries have moved directly into so-called “informals” – that is, closed meetings – rather than continue to meet in public “contact groups.” While this means that the many NGO and business observes here in Barcelona have nothing to observe, it paves the way for the beginning of actual negotiations, which are more likely in closed rather than open sessions. Whether the breakdown of the Kyoto Protocol process will be resolved, or will infect the Framework Convention track of the negotiations remains to be seen.

Under the best of circumstances, even the most optimistic observers think there’s little prospect for a legal agreement being completed in Copenhagen. At best, Copenhagen will produce a political agreement (or a set of COP decisions) on emission targets and finance, which would set the stage for the negotiation of a legal agreement. Even this will be a challenge, however, particularly if the United States remains unwilling to take specific positions prior to the enactment of domestic climate change legislation by Congress.