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Ricardo Lagos, Former President of Chile

Binding or Not Binding? That, is the Question

Four weeks ago the world waited in anticipation for the outcome of conversations between Presidents Obama and Hu Jintao: What, if anything, could they produce in terms of climate change negotiations? Would that meeting provide the impulse so urgently needed to unblock so many of the issues thwarting the success of the Copenhagen climate change summit?

The United Nations Framework Convention on Climate Change XVth Conference of the Parties - COP 15 - will be well underway by the time this article goes to print. Surely by then some of the suspense will already have begun to diminish. However, one of the keys to success -- whether or not the parties will sign a legally binding agreement -- will likely remain undefined when the summit concludes on December 18.

When Presidents Obama and Hu Jintao first announced that sealing a climate deal at Copenhagen would not be feasible, disappointment spread. Fortunately, this lasted a mere 48 hours for President Obama was quick to declare that the next round of climate talks necessarily had to cover all issues on the negotiating table with immediate operational effect. A week later the U.S. administration committed to a reduction “in the range of 17% below 2005 levels by 2020 and 83% by 2050.” China came right back and raised the stakes, announcing plans to reduce the intensity of carbon dioxide emissions per unit of GDP by 40 to 45 percent below 2005 by 2020.

Copenhagen, in short, was back on but numerous voices still counseled caution. Two crucial questions remain. Will a legally-binding accord on climate change —the type needed to ensure the sustainability of our world— be signed or not? Will it be global, or at least global enough?

The question of a legally binding accord vs. one that is merely politically binding has become the latest hurdle in the climate change challenge.  A legally binding framework is preferable for many reasons. To begin with, it would discourage the type of distrust that currently exists between Annex I Parties (industrialized countries and economies in transition that have the legal obligation to reduce greenhouse emissions) and non-Annex I countries (developing nations with no obligatory reduction targets). In some cases, this kind of  distrust surfaces due to the willingness of the former to fulfill financial and technology transfer commitments, and the reluctance amongst some of the latter to accept binding reduction targets with monitoring and verification systems.

A legally-binding agreement is all the more important considering that the various unilateral commitments aimed at reducing carbon emissions and announced thus far fall short of achieving the 2 degrees Celsius target sought  by 2100 - a maximum global warming level supported by the Intergovernmental Panel on Climate Change (IPCC). In fact, the renowned Vermont Sustainability Institute predicts that announced commitments would actually result in raising global temperature by at least 2.8 to 3.7 degrees Celsius by 2100.

Emission reduction commitments, high or low, will inevitably require private sector engagement. The private sector will have a crucial role in helping address the climate challenge, and it is unlikely to invest in green technologies and low carbon developments without predictable rules. Redirecting the economy to a low carbon path requires certainty in both targets and rules. This cannot be overemphasized.

So should we stand firm on moving only towards a legally binding agreement? After all, it might be better to spend a few more months negotiating and achieve a good agreement rather than rushing to sign a poor one. Here again two points remain unanswered: First, will the near future really usher in a scenario so significantly different from the current one as to reasonably expect Parties to be more willing to achieve the ambitious agreement we are all expecting? Second, if we continue postponing critical decisions, don’t we risk turning the climate negotiations into yet another Doha Round, now infamous for dragging on and on with unmet deadlines and important decisions never made? Moreover, the prospect of a potentially indefinite delay to a legal deal can only spur further distrust in the process.

Let’s now assume we seal an agreement. Clearly, it should be as global and as comprehensive as possible if we want it to render success. But how globalized can we truly expect reduction commitments to be? Consider, for starters, that non-Annex I Parties refuse to review this categorization and to have certain countries listed out of the category and, therefore, to be legally bound by commitments to reduce their greenhouse emissions. China is one of these countries.

The problem is that the Annex I and non-Annex I classifications made in Kyoto responded to a historical, economic and technological reality that has changed drastically over the last decade. The China, India and Brazil of today are not the China, India and Brazil of 12 years ago when the Kyoto Protocol was initially adopted and even less those of 1990, the year set as the benchmark to measure reductions. These countries are emerging economic giants. The non-Annex I category, thus, now includes major economies that share similar or even greater allowances than even the very vulnerable small island States. This is a situation that, although unjust and basically unacceptable, can be remedied in a way to satisfy the interests of all.

Imagine a system where non-Annex I countries commit to reducing a certain percentage of their national greenhouse emissions through existing Nationally Appropriate Mitigation Actions (NAMAs) and that —and here lies the key— once this is accepted and the financial resources needed to begin implementing the necessary actions have been allocated, the commitments become binding for the Party in question. This option could provide a reasonable and satisfactory meeting point among Parties.

Humankind faces a great challenge, possibly the most complex and comprehensive challenge it has ever faced. Climate Change poses an immense risk to all of humanity, particularly to the most vulnerable and to future generations. We will not be judged by the transitory difficulties of our times, but by the courage exercised in making commitments that echo in the future.