As the first week of formal negotiations at the Copenhagen Climate Summit comes to a close, the United States and China are exchanging barbs and little progress is being made … but behind the scene many negotiators remain confident that at least some form of a political agreement can be reached that will move global climate governance significantly forward.
Beginning on Sunday I will join fellow CPR Member Victor Flatt (see his preview on offsets and adaptation) as a credentialed non-governmental observer at the Copenhagen negotiations. I and six of my students from the American University Washington College of Law will be supporting the work of the Center for International Environmental Law and the Climate Law Policy Project, as well as other organizations. We will be looking at issues relating to the future financial architecture for responding to climate change; the reduction of emissions from deforestation and forest degradation (REDD); measurement, reporting and verification requirements; and implications of the climate regime on other sustainable development goals such as human rights and the conservation of biological diversity.
The general framework of a likely “political” agreement emerging from Copenhagen began to take shape in the days leading up to the negotiations, and has been largely reflected in the so-called “Danish” draft released on the second day of the negotiations.
In general, the United States has signaled its willingness to accept an overall economy-wide target that is consistent with House-passed legislation of 17% reduction from 2005 levels by 2020 and 80% reductions by 2050. China and India have both indicated the acceptance of voluntary energy intensity (that's carbon emissions per GDP) targets (40-45% and 20-25% by 2020, respectively) that will allow their overall emissions to grow, even as they improve the efficiency of their economies. China, Brazil and some other large developing countries may also be willing to pledge a diversity of voluntary, sector-specific approaches chosen to fit their specific national priorities. In this way, the United States will join the other industrialized countries in accepting overall economy-wide caps while most developing countries can identify their own nationally appropriate mitigation actions.
These medium-term steps will be made in the context of an overall “shared vision for long-term cooperative action” as called for under the Bali Action Plan. The shared vision reflects a global commitment by all parties to take steps now and in the future to limit global warming to no more than 2° C. That global commitment, in turn, implies an explicit promise to cap overall emissions in the long-term (most probably to achieve 50% overall reductions from 1990 levels by 2050).
So far, so good. But the devil is still in the many details not yet resolved, and the ultimate “success” of Copenhagen may depend as much on how we define success as on the outcome of the final agreement.
To be sure, reliance on a “political agreement” is a significant setback when viewed against the expectations leading up to the Copenhagen negotiations. The Obama Administration’s interest in circumventing the need for Senate ratification is understandable (making another binding international commitment that the Senate does not approve would be a debacle), but the movement away from a binding treaty or protocol is still a regrettable setback for climate governance and international law more generally. The Danish draft hints, as do some negotiators, that a political agreement is just a way to buy more time for negotiations while allowing some outcome that can be heralded from Copenhagen. A subsequent legal agreement, we are led to believe, will be reached with two or three more years of negotiations—but in that respect we are just kicking the can down the street from Bali to Copenhagen to the next major stop on the negotiations tour.
The proposed political agreement is also likely to reflect less a negotiation of mutual commitments than an announcement by key countries of what they are willing to do. The United States, China, and India, for example, simply made announcements of what they intend to pledge during the negotiations.
The unilateral nature of such a system of voluntary pledges is hard to square with a long-term global commitment to limiting global warming to 2° C. It will just be fortuity, not cooperative planning, if the aggregation of all unilateral, voluntary commitments achieves our long-term objectives. Moreover, a system of unilateral pledges will strip climate negotiations of one of the most important driving forces of international negotiations—the ability to isolate reluctant countries and pressure them into joining a global consensus. Just in the past few years, for example, the fear of global isolation and ridicule has moved both the United States (in agreeing to the Bali action plan) and China (in agreeing under the Montreal Protocol to accelerate the phase-out of HCFCs). Such critical shifts by reluctant countries are unlikely to occur in a system that cannot effectively shed light on their isolated stances.
Still, the system of voluntary commitments could emerge from Copenhagen with some muscularity. Remaining to be worked out is the extent to which such voluntarily pledges will be subject to international measurement, reporting and verification (MRV) requirements. Financial support for developing country implementation of their voluntary pledges may be conditioned on stronger MRV requirements. To the extent the MRV requirements become more robust, the “softness” of the voluntary pledges may be less evident over time.
The same uncertainty remains with most of the significant portions of the negotiating agenda. Although there is an emerging consensus that a new climate fund must be created under the auspices of the UNFCCC parties, the scale, focus, membership and operating procedures of such a fund are still taking shape. Still to be decided, for example, are how much public funding will be made available, which countries will be donors and which recipients, and for what purposes will the money be available. The Danish text hints at a new “Technology Mechanism” to support the implementation of “technology action plans”, but little detail is available on how we will accelerate large-scale transfers of technology while protecting the “legitimate interests of public and private innovators”. So it goes as well with respect to forests, the regulation of aviation and maritime shipping, the future of the offset markets, and adaptation. We know they are part of the “political agreement,” but we wait for details—and it is only those details that will determine whether Copenhagen meets any definition of success.
David Hunter, CPR Member Scholar; Associate Professor of Law, American University Washington College of Law. Bio.
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