Diplomats have barely started arriving in Durban, South Africa for the annual UN climate talks, but their deliberations are already at an impasse. Two years after the debacle in Copenhagen, they are still fighting over a fundamental question: should their central goal be a legally binding climate treaty? Most major powers, including the US and China, appear sceptical, but most European leaders remain enthusiastic. They have been demanding that others agree at this year's talks to conclude a legally binding treaty by some set future deadline – perhaps in 2015 or 2016 – as a condition for moving forward on other fronts.
This drive is well intentioned – European leaders appear to believe that a global treaty is essential to address climate change effectively – but it is ultimately misguided. By insisting on a global climate treaty, Europe may be making genuine climate progress more difficult.
The case for a legally binding agreement is superficially compelling. Climate change is a global problem that cannot be solved by any country acting alone; actions to cut emissions by any one country are worthwhile only if they are matched by similar steps from others. A legally binding agreement that requires ambitious efforts from all can reassure nations that their individual contributions will matter. It thus makes sense to seek a binding treaty for everyone.
But this logic is flawed. Countries enter binding international agreements with an eye to ensuring that they will be able to comply with their commitments. The legally binding nature of an international deal can thus deter national ambition in the first place. It is near-certain, for example, that China would not have pledged in Copenhagen to cut its emissions intensity to well below current levels had it been required to embed that in a treaty. The same is true for the absolute emissions' cuts pledged by the US. It is similarly unlikely that India, China and others would have accepted formal international scrutiny of their emissions cutting efforts had that been made part of a system for enforcing legal obligations. Even the faint shadow of future legal constraints can cause problems today, as countries seek to avoid setting unilateral goals or making soft commitments that might become binding obligations in the near future. None of this precludes seeking a legally binding deal, but it should temper single-minded pursuit of such an agreement.
There may be other casualties of obsessively seeking to conclude a legally binding international deal. Diplomats in Durban are wrangling with a host of difficult issues: they are crafting rules for a climate fund, hammering out protocols for auditing national emissions cuts, and trying to create a network of centres to promote the development and diffusion of low-carbon technologies. Progress on these matters would have immediate effects on the ground – yet it may be held hostage in the fight over whether to pursue a legally binding deal. Diverting the scarce time of high-level negotiators from such practical and constructive matters to a more divisive debate would not only be a problem in Durban: a new mandate to seek a legally binding deal four or five years down the road would divert diplomats' attention indefinitely.
And that may be the prettier part of the picture. In practice, the European fixation on a legally binding deal could blow up the talks. European leaders insist on setting a deadline for such a deal as a condition for signing up to a new set of emissions targets under the Kyoto protocol, something most developing countries have demanded of them. But if China or India balk at committing to a legally binding agreement – they have been deeply opposed to such obligations thus far – the talks could melt down entirely. If, on the other hand, Europe placates them by focusing its demands for legal commitments disproportionately on developed countries, the US, possibly along with Japan, Canada and others, will probably reject the deal.
Some may secretly wish for this outcome, which would discredit the UN talks, and, some might hope, allow another, more productive forum to rise in its place. The experience of Copenhagen, though, suggests that chaos and acrimony are not enough to kill the enterprise. The real choice nations face is whether to use the forum constructively or not. Setting aside the goal of a legally binding treaty would give negotiators the space they need to make real progress.
The writer is a senior fellow for energy and the environment at the Council on Foreign Relations
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