With the highly-anticipated United Nations Climate Change Conference in Paris (COP-21) lurking on the horizon, it’s safe to say things are heating up, in a good way. In a historic encyclical released by the Vatican on Thursday, Pope Francis pulls no punches in his call to mobilize for climate action. Back in the United States, Republican presidential candidates like Senator Lindsey Graham (R-SC) and major donors like businessman Jay Faison are attempting to shake up GOP attitudes on climate change. As the momentum heading into Paris accelerates, the pressure for international leaders to strike a meaningful deal there—an agreement to reverse the trend in man-made greenhouse gas (GHG) emissions—is mounting. But despite the elevated discourse, the reality is that on the ground, negotiators have significant work to do in order to reconcile disparities in many key debates. A series of climate meetings is taking place ahead of the Paris conference to give negotiators more opportunities to resolve difficult issues. The Bonn Climate Change Conference, held from June 1 to 11 in Germany, was one such meeting.

Translating urgency to act on climate into a single document that nearly 200 countries will sign off on is, well, difficult. The draft of the proposed agreement for COP-21 has grown messy and lengthy. Two weeks of U.N. climate talks in Bonn sought to shrink the 90-page draft to a more manageable length, and found some success, trimming five pages by the time negotiators wrapped up on June 11. Yet optimism about the modest slim-down overlooks glaring, unresolved issues that negotiators have yet to seriously address. Developing countries have demanded substantial funding from developed countries to support their climate action, and though developed countries have already pledged to provide it, few developing countries are convinced the promised money is forthcoming. Additionally, some experts are doubtful that the deal being crafted in Paris will be sufficient over the long-term to prevent potentially catastrophic temperature rise. Many countries propose that any emissions targets agreed upon at COP-21 be revisited frequently, but others are weary of ongoing, obligatory summits. And of all the unsettled disputes that threaten to derail an agreement this December, there is perhaps one that reigns supreme: what should be the legal nature of the deal?

The European Union would like the agreement to be binding. A binding agreement would carry legal force, so that countries would have to live up to their climate commitments or face repercussions from a prescribed enforcement body. Without a binding deal, proponents argue, countries will be able to skimp on their pledges without consequence, compromising the whole process and failing to adequately cut emissions. However, as was demonstrated in the “binding” Kyoto Agreement, countries can still renege on their commitments by withdrawing from the treaty, as Canada did in 2011.

The United States has made clear their position that the deal must be non-binding, as the Administration does not believe a binding treaty would obtain the necessary two-thirds support in the Senate . The United States has agreed to a binding emissions agreement before. In 1998, it signed the Kyoto Protocol, which, among other provisions, included binding commitments for industrialized nations, including the United States, to reduce GHG emissions. These countries, grouped as “Annex I Parties,” would have to meet the designated targets over the course of “commitment periods,” the first lasting from 2008-2012. But after playing an active role in the discussions, the United States failed to ratify the Kyoto Protocol.

Because of the binding language in the treaty, many countries needed to ratify Kyoto internally in order for it to take effect. The vast majority of nations did ratify the treaty into law, but in the United States, it was dead on arrival. The overwhelming view of the Senate was that the United States could not subject itself to a binding international agreement unless developing nations also pledged sufficient emissions reductions. In the end, the largest GHG-emitter of the era became absent from the global climate agreement.

Given the present make-up of Congress, conventional wisdom suggests a binding agreement signed in Paris might face a similar, dead-upon-arrival fate in the United States. Drawing lessons from the failures of past negotiations, some leaders—even within the European Union—are shifting strategies. “We know the politics in the U.S.,” French Foreign Minister and COP-21 President Laurent Fabius said earlier this month. “Whether we like it or not, if it comes to the Congress, they will refuse.” Therefore, Fabius and others are speaking out against a legally-binding treaty, citing the importance of U.S. participation.

And the United States is not the only country hesitant about an enforceable agreement. Significantly, China—now the largest emitter of GHG—has been somewhat ambiguous about its stance on legally binding targets.

But many are persuaded that a legal enforcement framework is the only way to get countries to comply with their pledges. In the European Union and elsewhere, the call for legally-binding targets remains strong. Perhaps nowhere is the push more intense than in small, low-lying island nations in the Pacific and Indian Oceans, such as the Marshall Islands or the Maldives, where the rise in sea levels caused by climate change threatens to submerge entire countries.

It seems negotiators are unwilling to tackle the legal aspects of the Paris deal until they absolutely have to. And when that time comes, it’s difficult to see how the clashing sides will reach a compromise, since their positions seem irreconcilable. The United Nations may need to think outside the box for ways to ensure compliance.


Author: Billy Lee