The death of the legally binding treaty?


The full implications of the deal that was struck on Friday will emerge over time as the many details still to be agreed are negotiated, but the first reactions have been of alarm and disappointment. Some of the initial disappointment was caused by President Obama’s description of the result as a separate deal between the United States, Brazil, India, South Africa and China. The alarm derives from the fear that this spells the end of the treaty led approach to combating climate change.  

It is, it is now clear, a wider agreement and has been introduced, though not without resistance, to the COP plenary deliberations. There are still though, some radical implications for the global climate regime.

On the positive side, a deal has been done that both China and the US have agreed to. On the negative side, the price of that agreement is likely to be the more ambitious mitigation effort.   

A key casualty of the last minute negotiations was the mandate given to a working group under the long term cooperative action track to propose a new architecture for 2013 that would take the form of a legally binding treaty. For the EU, which is already committed to legally binding caps, this was a central ambition. But when India proposed to remove it from the mandate, Chancellor Merkel of Germany failed to defend it and it was dropped from the mandate. Some EU officials now fear that the way is open for the abolition of the treaty-based, top down, binding caps that have been fundamental to the multilateral UN approach. 

It remains open to countries to run domestic cap and trade schemes, but it is hard to see cap and trade flourishing globally, the certainty on the carbon price that business has been asking for in order to plan and invest is unlikely in the near term and the need for more ambitious mitigation will not be served by this deal.

Why did this happen? According to diplomatic insiders, China played a key wrecking role. If Copenhagen was about getting the US into the deal, by 2020 China and India were likely to be under pressure to take on legally binding targets. Rather than see that happen, China preferred to destroy the architecture. 

A top down regime with ambitious targets is a stimulus to effort. The best that can be hoped for now is a much less challenging bottom up approach of incremental efficiency and aggregated emissions savings. The one thing that is undisputed as the delegates vacate the Bella Centre, is that this is not enough to keep global average temperature rise below 2 degrees centigrade.

For an analysis of lessons to be learned, see Simon Zadek’s latest post here