Legal Commentary

I'm in Copenhagen for the UN climate conference this whole week.  Below is a cross-post of something I wrote for Grist, and I'll be posting more here as we hit the final days of the conference.  If you're interested in more details, the New York Times just posted this story about the current play of negotiations.

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As 120 heads of state arrive at the Bella Center in Copenhagen, there?s amazingly little direction on just what exactly they are negotiating.  Is this going to be an extension of the Kyoto Protocol (a second commitment period), or will the Kyoto Protocol be buried, with some brand new treaty rising from its ashes?  Will the agreement be legally binding or just a declaration of principles?

Here at the ?climate café? lunchroom at the Bella Center, there?s a lot of talk about the proper ?architecture? of an agreement, so let?s look at some building styles that might come out of Copenhagen:

Negotiating a full-blown treaty was the original intent for COP15 in Copenhagen, according to the 2007 Bali Roadmap,  A full treaty would include emissions targets for developed countries, compliance mechanisms, possible new commitments by developing countries, and detailed provisions on ratification and entry into force.  Lowering expectations, the U.S. and other developed nations signaled weeks ago that there is simply not enough time to hammer out a formal treaty, but many developing states and NGOs are still pushing for the Taj to be built in the next two days.

Heads of state from 120 countries don?t fly in here just to have a photo op.  There?s personal and national prestige on the line to solidify some written agreement in Copenhagen.  Conceivably, the agreement could contain hard numbers for emissions targets and financing by developed nations, as well as pledges by developing countries to take some low-carbon policy measures (in COP-speak, ?Nationally Appropriate Mitigation Actions?).  Imagine that many of the crucial blanks are filled in a draft agreement on long-term cooperation released this morning, and that the document is then completed as a treaty in 2010.

This is what lead architect Barack Obama said he wanted to build when he gets to Copenhagen: an accord that will have ?immediate operational effect? in the sense that national commitments at Copenhagen could be implemented while a formal treaty is drawn up.  But the parties are very far apart even on the basics, like the future status of the Kyoto Protocol, levels of emissions reductions, baseline years (1990 or 2005), financing commitments, and whether the goal of the whole thing should be limiting global temperature increases to 2 degrees or 1.5 degrees.  If a foundation for a future treaty is going to be laid at Copenhagen, the concrete commitments better get solidified soon.

There?s only about 60 hours left in this conference.  Walkouts and deadlock have already plagued the negotiations.  There?s a real possibility that despite years of lead-up, the only thing the parties will agree to in Copenhagen is a face-saving document to protect them from political flack.  This document would note general areas of agreement (such as the need to finance adaptation in the least developed countries and continuing the Clean Development Mechanism) and it might provide a roadmap for further negotiations in 2010.

The fallout would be immediate.  The COP would be called a failure, and the prospects for a treaty in 2010 would not be pretty.  After all, if the parties can?t agree now, with the involvement of heads of state and the attention of the world, why would they be able to resolve their differences in August or September, in the run-up to the next COP in Mexico City?  U.S. cap-and-trade legislation would also be jeopardized if a flimsy deal gets patched together in Copenhagen and carries the taint of failure.

The stakes are high, and time is running very short here.  I?m pretty sure a global climate architecture will get built?eventually.  But we need a roof over our heads now.