Bodansky: Update from Barcelona Climate Change Negotiations

[Daniel Bodansky, University of Georgia School of Law and OJ guest blogger, sends this second 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.]

This week, the chair of the negotiations and the executive secretary of the UN climate change secretariat both confirmed what had been obvious to most knowledgeable observers for some time: the Copenhagen Conference in December will not be able to adopt a new climate change treaty. Instead, they suggested, as a goal, adopting a series of COP (conference of the parties) decisions, which would be “politically” but not legally “binding” and would form the basis for a treaty to be negotiated post-Copenhagen.

Although a political outcome in Copenhagen should be easier to achieve than a legal agreement, it will still be difficult and will require significant compromises by all sides. The basic elements of the Copenhagen outcome could include:

• A long-term goal, expressed as a limit to global temperature increase (e.g., 2 degrees), greenhouse gas concentrations (e.g., 450 parts per million) and/or long-term emission reductions (e.g., emission reductions of 50% by 2050) .
• Mid-term emission reduction targets for developed countries, expressed either as an absolute number (e.g., reductions of 20% by 2020) or as a range (e.g., 16-23%).
• Policies and measures by major developing countries such as China, India, Brazil, Indonesia and South Africa.
• Financial commitments/pledges by Western countries to assist mitigation and adaptation actions by developing countries.
• Decisions addressing adaptation, technology transfer, REDD (reductions in emissions from deforestation and degradation), mechanisms (possibly including new rules for the CDM and for land-use change), and capacity-building.

Given the current state of the negotiations (which remain bogged down), an outcome along these lines remains a very ambitious objective for Copenhagen, even if it is reflected “only” in COP decisions rather than in a new legal agreement.

How much does the legal status of the Copenhagen outcome matter? For years, academics have been debating the merits of “soft” vs. “hard” law. Now, this issue has moved front and center in the climate negotiations. Coming from academia, where some regard international law as a sham and many others question the benefits of hard law over soft law, it is touching to see the faith that climate negotiators have in the power of legal form. Indeed, virtually the only point on which all of the participants in the negotiating process seem to agree is that a legal agreement would be significantly stronger than a political outcome. On one side, developing countries think that it is essential that developed country emission targets be legally binding, as well as the financial commitments by OECD countries to provide assistance for mitigation and adaptation measures by developing countries. Conversely, developing countries remain adamant about not accepting legal commitments themselves. On the other side, developed countries are equally adamant that the “nationally appropriate mitigation actions” (NAMAs) of developing countries be “internationalized” as legal commitments.

In general, this belief in the importance of legal form is independent of the agreement’s compliance mechanism (although most agree that a compliance system would further strengthen the agreement’s force). The agreement’s legal status is itself seen as crucial in providing an assurance that countries will do what they say.

When I ask participants why they think legal form is so important, the answers vary. Many say that the legal status of the agreement is important in the domestic implementation process, providing a strong tool against domestic groups that want to water down a country’s policies. Along similar lines, some say that financial pledges, in particular, mean little, and that legal obligations are essential in persuading Treasury ministries to provide money. Many also believe that, if a country violates its commitment, it is important to be able to say that it has committed a legal violation rather than just failed to live up to a political pledge. In general, participants seem to have deeply internalized the belief that a legal agreement represents a much stronger form of commitment – which they take more seriously and need to consider more carefully – than a political statement or COP decision.

Although the Barcelona negotiations have continued in a business-as-usual fashion, with countries restating their positions and engaging in procedural ploys, my sense is that the Copenhagen Conference is “too big to fail” and that an outcome along the lines described above is still plausible, after a last minute frenzy of negotiating activity. This is not a good way of doing business, since a rushed, hastily-negotiated outcome, drafted at the last minute, is likely to be poorly drafted, with ambiguities, gaps, and even inconsistencies. Nevertheless, such an outcome represents what is likely to be the “best case” scenario for Copenhagen and would, in my view, be a significant achievement.