COP21: A la carte climate politics

Paris climate deal reflects the modern, less legalistic environment for international deal-making

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A diplomatic bang and a climate whimper? The efforts expanded over the Paris conference have resulted in an agreement – itself an achievement, given the need to reach consensus between 195 parties, something the previous climate conference in Copenhagen failed to deliver. But the actual results fall short of the main ambition that has been a basic principle of European action on the environment – as in many other areas of global governance: a legally binding result.

At the last minute, “shall” was replaced by “should” throughout the text. Indeed, the vocabulary of another type of international organisation won the day in Paris – that of APEC (Asia-Pacific Economic Cooperation), the regional economic pact that has as its guiding principle non-binding, voluntary and unilateral cooperation. Now, the only binding aspects of the text lie in the fact it is now part of the 1992 UN Convention, or with decisions concerning the process itself, and that focus on efforts rather than results.

The main take out is not the decision – announced in the annex of the agreement – to hold temperature rise to 2C, and possibly to 1.5C, since the main text realistically notes that nationally announced contributions so far fall short of that goal.

Nor is it the famous $100 billion fund committed by developed economies to help others achieve their objectives: the actual pledges have not been made. Positively on this front, an opening to voluntary contribution from “others” clearly challenges China, which clings to its “developing economy” status, to come forward and contribute on the side of developed economies.

The main positive result lies with the new and complex machinery towards more reporting and more transparency on emissions. It resides with the admission that losses incurred by the most fragile nations over natural disasters and rise in sea level can be tabulated – but as yet not compensated. A key provision where “shall” remains in place of “should” concerns the reporting by developing countries that have benefitted from funds to mitigate their emissions.

The international order is coming up against a dilemma familiar to European Union advocates: the choice between widening and deepening an international agreement

Overall, penalties are thoroughly absent from the agreement and escape clauses abound. National contributions and goals are mostly for 2025 – a date that is beyond the horizon of most currently elected politicians – although the French fought hard to include a review process of these contributions by 2020: again, without any binding obligation to adapt these contributions and goals. The envisaged, but not mandated peak for emissions is by 2050.

Should we therefore conclude cynically that the agreement is a dud?

Yes, if one thought the agreement might include compelling measures towards either increasing energy efficiency or speeding the transition from fossil fuels. Not for nothing were China and Saudi Arabia the last hold-outs. Not even carbon sinks or a carbon fund mechanism are mandated by the agreement.

And also yes, if one thought the most developed economies – and chiefly the United States, by far the worst emitter on a per capita basis – might lead by example in accepting legally binding commitments. That was made impossible by domestic politics. And this domestic failure provided the basis for consensus with China, but was a signal to other important parties, including India, that they could face down any imposed obligation. There is a paradox there: the Obama administration fights hard to pass through Congress its own ambitious national program of reduction in emissions, an important shift in US energy policy. But either to assuage China, or to lessen the risk of  Congress refusing ratification of the Paris agreement, it has constantly worked to exclude internationally binding clauses.

But no, if one considers the sheer novelty of an effort to cap global emissions and mitigate climate change. We have simply forgotten the magnitude and ambition of the task.

Once upon a time, the international order was largely about the diplomatic immunity of envoys – a prerequisite if nations were at all to talk to one another. Rules limiting warfare to combatants came in force with the Geneva Convention in 1864. New technical agreements also came along such as the international Postal Union in 1874, or the goal of registration of international trademarks in 1892. After the First World War, the order expanded to war and peace – the main activity of the League of Nations. While this did not work out, more defined and mutually binding agreements such as the banning of chemical and bacteriological weapons in 1925 were indeed the example of a well-defined and successful agreement.

International conventions are therefore moving away from being abstract legal concepts towards being à la carte agreements.

The ambitions for an international order expanded after 1945 – but they have exploded with the end of the Cold War. The inclusiveness of the United Nations has expanded to new areas – such as the Law of the Sea, the Outer Space Treaty, and the Climate Convention. Even international financial institutions, previously based on the principle of ownership and responsibility, now have a goal of international inclusiveness.

In the process, the international order is coming up against a dilemma familiar to the advocates of European integration: the choice between widening and deepening an international agreement. This is exactly where the issue of legally binding commitments vs. aspirational undertakings has defined the Paris agreement.

We are now at a crossroads. It is clear that the application of international law will not be easily expanded into new territories. Already, we have seen the downside of a Law of the Sea that has created a whole new area of international quarrels over the definition and rules for exclusive economic zones. The IMF’s wish for inclusiveness has led, in the case of taking in the Chinese Yuan as a reserve currency, to accepting the “free usage” of currency on a par with “free convertibility”, a clear dilution of previous IMF objectives. International conventions are therefore moving away from being abstract legal concepts towards being à la carte agreements.

Peer pressure, and naming and shaming, long the preserve of NGOs and concerned citizenry, are now necessary ingredients that might make the Paris agreement stick with its signatories. It is a tall order, particularly given the political expediency of short-term views based on growth, and the remaining attractiveness of cheap energy such as coal or even oil. Sometimes before the Paris conference met, the notion of peak oil died amidst a flurry of new discoveries. Scarcity of resources had been an engine of change ever since the Club of Rome convened. We can no longer rely on that constraint to induce change, and big energy shifts may now have to face down economic rationality.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.


ECFR Alumni · Director, Asia and China Programme
Senior Policy Fellow

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