The Soft Path to a Climate Agreement, From Lima to Paris

Dec 5, 2014 by


Thousands of negotiators, activists and lobbyists are gathering for this year's round of <a href="">climate treaty talks in Lima, Peru</a>.
Thousands of negotiators, activists and lobbyists are gathering for this year’s round of climate treaty talks in Lima, Peru.Credit

Needless to say, there’s been a big and promising shift in tone and some substance in global warming diplomacy of late — led by the paired pledges of China and the United States to intensify efforts to curtail heat-trapping carbon dioxide emissions. Other countries, including gas-rich Malaysia, have promised to act on climate.

No one should presume things will be easy in Lima, Peru, where negotiators are gathering through next week to shape a global climate agreement that could be finalized in Paris a year from now. There’s strong — and to a large extent justified – resistance to new carbon commitments in India, for example, where hundreds of millions of people lack access to any modern energy sources, let alone clean ones. And there will be intensifying demands for billions to flow from industrialized countries that spent decades building wealth burning fossil fuels to poor, vulnerable ones. Given continuing economic troubles in many developed countries, those demands will be hard to meet.

Still, there are plenty of signs that there’s room for a global accord to emerge, with every faction — from the poorest to the richest — finding a comfort zone thanks to the 24-year-old clause in the original climate treaty laying out nations’ “common but differentiated responsibilities” (here’s a great explainer from McGill’s Center for International Sustainable Development Law).

As long ago as 1991, there were calls to pursue “soft,” not internationally binding, steps toward a global climate treaty. Read these notes from a fascinating 1991 Harvard meeting on Negotiating a Global Climate Agreement to get the idea. (There are some excerpts below. I first wrote about that meeting in 2010.)

Talks are progressing now because this shift is in fact occurring.

John Upton has an informative piece on Climate Central that lays out the logic of non-binding success and also why some parties, particularly Europe, still resist:

As negotiators gather in Peru for a critical round of climate talks, U.S. delegates are straining to explain what they call a “counterintuitive” reality: For next year’s global climate agreement to be effective, commitments made under it must not be legally binding.

Such an outcome would disappoint many, including the European Union’s negotiating team, which says it will be pushing for binding commitments during the United Nations Framework Convention on Climate Change talks in Lima this week and next. America’s negotiators are pushing for voluntary commitments.

The success of the next climate agreement, which is due to be finalized during talks in Paris one year from now, may hinge on American negotiators winning in this latest spat in a long-simmering quarrel with their European counterparts.

It’s a pretty good bet that Europe will — excuse the term — soften, given the momentum built by the year-long process that produced the American announcement with China and particularly because failure in the heart of Europe is unimaginable.

The new emphasis on a soft approach is quite a contrast to the tone in the run-up to the tumultuous Copenhagen talks in 2009, when inflated “seal the deal” expectations — partially driven by the election of President Obama — led to the idea there could be new international, legally-binding gas limits like those tried in the 1997 Kyoto Protocol — which has proved a dead-end document.

Yvo de Boer, who held the chair in the climate talks through Copenhagen and now runs the Global Green Growth Institute, made the point this way in an interview with Bloomberg’s The Grid back in June:

Q: Is it still realistic for climate negotiators to want an “international, legally binding” treaty? Was it ever realistic if the U.S. always opposed one?

A: If a country enters into a legally-binding commitment and they back away from it, what do you do? Arrest the prime minister? “Nationally legally-binding” is much stronger. I think we’ve moved beyond Kyoto-style agreements. Hopefully in Paris we will see countries make ambitious pledges to limit or reduce emissions. [Read the rest.]

Debates will (and should) continue over how much of what’s being pledged is simply enshrining energy and pollution trends (both in the United States and countries like China) that are already being driven by other factors (cheap shale gas and growing energy efficiency here, smog concerns in China, etc.).

And much of what is being pledged, despite Yvo de Boer’s hope for legally-binding actions at the national level, is still much more like putty than steel, as Jack Goldsmith of Harvard Law School noted (in the context of United States law) on his Lawfare blog earlier this year. 

But momentum matters, as does the rising trust among parties as they split from a faction-against-faction approach (remember the Group of 77 plus China bloc?) to finding common threads, one on one.

The summary of that 1991 meeting on climate agreements, written by Henry Lee, who’s still at Harvard, have some relevant sections, including this one:

Perhaps the real problem is not agreeing on a treaty, but building nations’ confidence in other nations’ capacity and willingness to cut emissions. We are skeptical about whether Brazil will do it, and they are skeptical about us. And as in the recent U.S.-Japan decisions over Structural Impediments to trade, if we both can do it, we will both be better off.

Overcoming this blockage will either take an adjustment of our notion of sovereignty where implementation is concerned, or a focus on unilateral action. U.S. unilateral action could set an example for the world, and help to structure the international process so as to increase confidence. If the U.S., for example, significantly increased transportation fuel prices, then this action would both increase our influence in pushing for good international deals, and exempt us from charges of obstruction when we refuse to sign a bad one.

There is a lot of latent cooperativeness, looking for a structure in which to express itself. This is what international legal measures, soft or hard, should do — give an enabling structure to this latent willingness to help.

Obama has moved far more on power plants and auto efficiency than fuel prices (which are headed down of course), which simply shows that expectations and options evolve over time. But his administration’s domestic power plant rules and simultaneous interaction with China reflect how this dynamic can work.

There’s much more at the Harvard Project on Climate Agreements, including this new paper: “A Pre-Lima Scorecard for Evaluating which Countries are Doing Their Fair Share in Pledged Carbon Cuts.”

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