How we got here and what to watch forAs the preparations for the global climate change conference in Paris in December heat up in parallel with the planet, negotiators in the United Nations climate talks recently released a proposed skeleton agreement. The draft includes the key pieces of a legal agreement that are meant to be finalized by nearly 200 countries in Paris.The text is very much an early draft, littered with alternative wordings and unsettled provisions, but it provides the clearest illustration to date of what kind of agreement countries are heading toward. The documents also bring to light the many politically sensitive issues negotiators will need to grapple with in Paris.
Why Paris is different Typically, global environmental treaties, including earlier ones on climate change from 1992 and 1997, set out comprehensive legal commitments – a cornerstone of international law. But the ill-fated Copenhagen meeting in 2009 showed in spectacular fashion that this approach is no longer possible on climate change. There, the United States, China, India and other leading countries outside the European Union sharply rejected the idea that each country in the United Nations process should take on negotiated, legally binding targets for reducing greenhouse gas emissions.
Instead, the hastily scrambled together Copenhagen Accord ended up a political document, merely encouraging countries to submit voluntary, and widely varying, greenhouse gas targets for 2020. Since then, the leaders of China, the United States and other countries have voiced support for more concerted action, but many still prefer to keep any national targets voluntary. In typically awkward U.N.-speak, these are called Intended Nationally Determined Contributions (INDCs).
Consequently, countries in Paris will seek to develop a new hybrid approach. The intent is to establish a universal legal agreement that lays out basic provisions, but each countries’ INDCs are submitted separately, and implementation issues are intended to be addressed in political decisions adopted separately at the Paris meeting.
Defenders of international law often prefer treaties because binding commitments are legally strong. Countries sometimes violate legal obligations, but most countries follow most international law most of the time. Countries also often think twice before violating their legal obligations, because international law creates stability and predictability. And countries that renege on legal commitments risk losing one of the most priced commodities in international relations – other countries’ trust that may be needed in future cooperation.
But not all analysts believe that legal obligations are always superior to more political approaches. Because countries tend to respect international law, they may simply elect to not sign up to rules they cannot (or do not want to) abide to. In that case, the choice is between a legal treaty with only a few members, and a legally weaker agreement with more members. With the top 10 emitting countries responsible for two-thirds of global emissions, leaving any of these countries standing on the sidelines would be highly problematic to any multinational climate agreement.
Since Copenhagen, the international political scales on climate change have tipped away from the traditional treaty system to one that embraces a higher degree of voluntarism. This has paid some dividends in the form of greater participation. Among those that have already submitted their INDCs for 2030 are China, the United States, the European Union and Japan.
How solid is U.S. commitment?
But despite this political buy-in from leading emitters, there are several potential pitfalls ahead.
International legal agreements depend on countries’ willingness to incorporate them into national law and to implement and enforce their obligations through domestic institutions. Once international commitments are enshrined in domestic law, there is a significant hurdle for political leaders to backtrack, which would have both national and international implications.
Yet in some instances, countries may more actively follow through on voluntary promises to cut greenhouse gas emissions by, for example, expanding renewable energy generation and improving energy efficiency. This is in large part because what countries set out to do in their INDC is often already national policy and/or measures they are confident will be adopted later. In other words, countries are prone to only submit INDCs that are clearly within reach.
But all of this is dependent on one critical aspect: that future national political leaders honor political promises made by today’s leaders in Paris. This is true for all countries, but uncertainties about the future path of the United States, in particular, stand out.
The Obama administration favors voluntary INDCs partly because the US contribution was formulated within the executive branch and so does not require congressional approval. The Obama administration this month released the Environmental Protection Agency (EPA) Clean Power Plan that sets limits on carbon emissions from power plants. That mandate along with fuel efficiency standards for vehicles and other measures are the primary methods for meeting the US emissions reductions pledge.
However, this means that the next White House occupant is free to decide U.S. international climate change policy. Here, the very large differences between presidential candidates on climate change can have substantial national and foreign policy ramifications, as countries and trading partners will expect the U.S. to fulfill earlier promises.
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