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In a Bind: How Cancun Can Move Countries Towards Legally Binding Climate Targets

Many – but not all – of the qualities that we value when we call for legally binding targets are within negotiators’ reach.

For many countries and observers, legally binding targets and timetables to reduce greenhouse gas emissions have become the litmus test for a successful, near term outcome of climate change negotiations. However, the prospect for such an agreement in Cancun that covers all the world’s major emitters appears remote. Part of this can be explained by the lack of support within the United States, at the moment, for domestic climate legislation that would make U.S. participation in a legally binding agreement possible. Part of it can be explained by the reluctance of other major emitters to bind their emerging economies to specific outcomes. Indeed, without U.S. leadership, it seems unlikely that other major economies, including China, India and Brazil, would join. In this context, vesting high hopes in legally binding targets risks missing some crucial perspectives and points.

In an article in the most recent edition of Climate Policy, I argue that many – but not all -- of the qualities that we value when we call for legally binding targets are, nonetheless, within negotiators’ reach. There are four components of “bindingness”. These are the legal character of the treaty itself, the mandatory and specific nature of the commitments within the treaty, and the procedures and institutions that hold Parties accountable for these commitments.

Legally binding commitments would reflect the highest level of commitment a country can make. Once bound a country must comply with its obligations through thick and thin, even if the government in power changes. In most countries the process of ratifying a treaty entails putting in place domestic implementing legislation, enforceable by government agencies and the courts. Markets – whether in new technologies or in carbon permits - depend upon the stability provided by legally binding instruments.

However, in the absence of binding commitments, progress can still be made within the UNFCCC, itself a legally binding agreement, with regard to the specificity and ambition of the pledges made under the UNFCCC and the transparency and accountability mechanisms around those pledges. At and since the 2009 Copenhagen Climate Summit, 42 developed countries have pledged economy-wide emissions cuts within specific timeframes and 98 developing countries have pledged to put in place specific mitigation actions between now and 2020. They have also agreed that these commitments and actions would be subject to some form of measurement, reporting and verification.

This was an important political breakthrough for climate politics. But if the momentum generated by the Copenhagen COP is to carry through to an effective and legally binding agreement, what was pledged in Copenhagen must be formalized in Cancun, and improved upon as the negotiations move forward. This must be done in a way that respects the principle of common but differentiated responsibilities between developed and developing countries, and yet provides the international community – and in particular those most vulnerable to the impacts of climate change – assurances that pledges will tighten into targets, and that countries’ performance will be assessed against those targets.

Moreover, simply transforming the Copenhagen pledges into legally binding targets – which would then be difficult to amend – is a risky proposition. The Copenhagen Accord pledges were not negotiated; they were pledged unilaterally by each Party. While all developed country pledges have been made in the form of targets and a timetable, and all developing country pledges describe some action to mitigate emissions, they otherwise have little in common.

It is therefore vital that whatever option is chosen by Parties to formalize the pledges, there is a mechanism in place to clarify and strengthen the pledges as soon as possible and a formal science review put in place that is completed no later than 2015, optimally earlier.

The insistence that Cancun leads to legally binding commitments or be assessed a failure should not be allowed to lead to an impasse. Parties to both the UNFCCC and the Kyoto Protocol have made a great deal of progress at the domestic level in designing and preparing for climate policy. While the set back in U.S. federal policy is very serious, important leadership initiatives are emerging at the state and city level that will create pressure, again, for that country as whole to act. In the meantime, innovations in clean energy in India and China, in forestry in Brazil and Indonesia, and in carbon markets in the EU, China and Japan, will show how progress can be made in transitioning to a low carbon economy while enhancing rather than undermining economic competitiveness. This, combined with systems for measuring, reporting and verifying progress, should build knowledge and a platform for cooperation that will maintain momentum on mitigation even in the absence of a legally binding agreement in Cancun.

This is all not to say that an internationally legally binding agreement should be shelved and never attempted again. Quite the contrary, while countries should get moving on a set of decisions in Cancun to get some change happening on the ground, they should also create a process to discuss and decide the legal form of the agreement in the future. Optimally they should decide in Cancun that the end goal is a legally binding agreement and set up a process to define it more clearly.

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