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Wednesday, November 18, 2009

"Legally Binding" versus "Politically Binding" Climate Deal

The big news out of the APEC meeting in Singapore last weekend was the lowering of expectations for the upcoming climate change summit in Copenhagen.   APEC leaders, including President Obama, endorsed the proposal by Danish Prime Minister Lars Lokke Rasmussen for a “politically binding” agreement on major principles that would be finalized as a “legally binding” treaty in 2010.


Then, speaking yesterday in China, President Obama said the aim should not be “a partial accord or a political declaration” but rather “an accord that covers all of the issues in the negotiations and one that has immediate operational effect.”


Do these semantic distinctions make a difference?  Bloggers have jumped all over the phrase “politically binding,” arguing that it is meaningless and a sell-out worth no more than a politician’s promise.   It seems to refer to a document that would not be a formal treaty open for signature at the conference, but rather a short statement of agreement on several core issues.  Such a statement would not have “immediate operational effect” in a legal sense, but perhaps President Obama is suggesting that countries should immediately and voluntarily implement the commitments made at Copenhagen, prior to negotiating a formal treaty. 


No doubt, the failure to conclude a formal "legally binding" treaty at Copenhagen is a set-back.  After all, the Copenhagen summit was planned five years ago, and the necessary preliminary political agreements were supposed to have been concluded in 2008 and 2009, in accordance with the Bali Roadmap.   Time is rapidly running out for global action, and we can't afford yet another roadmap that leads to years of protracted negotiations.

However, the lowered expectations at Copenhagen may ultimately save a larger climate deal.  If the summit were to collapse under expectations that a "legally binding" treaty is the measure of its success, both international negotiations and domestic climate change legislation could go down in flames.

Given where we are, three weeks away from Copenhagen, with conflicts over most of the major issues in a future treaty, the real issue is not the distinction between politically binding and legally binding, but the substance of what can be agreed to at Copenhagen.  

A strong “political” accord that has the tacit or formal assent of world leaders is better than a weak and hastily-concluded treaty that has little chance of ratification or entry into force.


At Copenhagen, the Big Three issues on which we need consensus are: 1) Levels of financing by developed countries to fund adaptation and climate mitigation in developing countries; 2) The level of binding emissions caps for developed countries; and 3) the low-carbon policy measures, if any, that developing countries will be obligated to take (major developing countries are adamantly opposed to binding emissions caps).


Resolving the Big Three in a document that contains hard numbers and commitments would be a strong outcome from Copenhagen.   If that document is followed up within months (rather than years) by a formal treaty, Copenhagen might still be considered a success.

Posted by Noah Sachs on November 18, 2009 at 11:44 AM | Permalink


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