Climate change takes center stage in New York City two weeks from now when world leaders will attend the United Nations Climate Summit—a stepping stone along the path to a new global climate agreement to emerge in Paris in late 2015. Don’t expect a “kumbaya” moment at the summit. Rather, expect to see a very public display of country negotiating positions and an equally public display of reaction to those positions.
Summit organizers hope these leaders will unveil commitments to aggressively reduce future greenhouse gas emissions—commitments that would become the foundation for a new, legally binding Paris agreement. However, reflecting the ongoing international negotiations running up to Paris, one can expect each leader’s commitments to be vague, but also to see considerable specificity about the legally binding nature of the agreement. The European Union is advocating for an agreement whereby commitments would be binding under international law (a treaty), while the United States argues for legally binding domestic commitments absent a new treaty.
The European Union argues that only a legally binding treaty will provide the framework for countries to undertake the painful transition to emissions levels consistent with global climate protection. Voluntary reduction commitments (that is, commitments not part of a treaty obligation), argues the EU, will not be sufficient to attain the required reductions.
The US position opposing a new legally binding treaty rests on two foundations—one political and one practical. From a political perspective, the likelihood that the US Senate would ratify a new climate treaty is assumed to be very close to zero. Given the required 67 votes to ratify a treaty (two thirds of the Senate) and the highly partisan nature of the US Senate now and likely in the near future, an agreement that takes the form of a treaty would likely foreclose US participation—an outcome the Obama administration hopes to avoid.
From a practical perspective, a legally binding treaty does not assure commitments will be met. While the European Union argues to the contrary, the simple fact is that a country can walk away from a legally binding treaty when it believes the compliance obligations are no longer in the country’s self-interest. This is precisely the action Canada took in 2011, when it chose to withdraw from the Kyoto Protocol. All parties could agree to severe penalties for withdrawing from the new treaty that would inhibit actions like that taken by Canada. However, baring the use of coercive force, the only effective enforcement penalties would be trade sanctions. While not inconceivable, at this point in the negotiations, no one is talking seriously about trade sanctions.
This is not to say that the new agreement should discourage legally binding emissions policies—quite the opposite. Commitments to reduce emissions offered by each country should emanate from legally binding domestic policies that are capable of producing the reductions contained in the commitments. This moves commitments from aspirational to realizable. Although countries can change existing domestic policies, as Australia demonstrated by negating its carbon tax following a significant change in political leadership, one might argue domestic policies are more difficult to overturn than international agreements.
No matter how the legality of country commitments under the new agreement is treated—under international or domestic law—continued compliance with commitments and a willingness to increase the commitments over time will depend on each country’s internal assessment of the benefits it receives from remaining a party to the agreement.
