Negotiating teams representing countries from around the world have converged this week in Doha, Qatar, for the 18th conference of parties to the United Nations Framework Convention on Climate Change, the legal mechanism tasked with coordinating the international response to climate change.
At the conference this week, the United Nations Environment Programme delivered a sobering report on the possibility of accelerated greenhouse gas release from melting permafrost in the high latitudes of the northern hemisphere. Indeed 2012 has been punctuated by reports from reputable national and international organisations making increasingly dire predictions about the climate change threat to ecology, economy and society.
Many scientists are pessimistic about the ability of the UNFCCC to deliver and claim loudly that the time for incremental climate mitigation is over. Some social scientists favour minilateralism, a streamlining of the UNFCCC negotiating process to accelerate decision making by reducing the number of negotiating parties. As the negotiating teams get busy in Doha, let us now consider whether the international community can deliver on a concerted, integrated response that matches the gravity of the climate predicament.
Why Are Negotiations So Difficult?
Why is the UNFCCC process so slow and tortuous? The United Nations Framework Convention on Climate Change was established in 1992 after over a century of knowledge accretion in climate science and international recognition of the problem during the 1980s. As an instrument of international law, it is captive to the norms and procedures that characterise international legal cooperation.
International law is different from domestic law because its primary actors—states—enjoy sovereignty in an international system that is anarchic; in the absence of a higher governing power, states comply with international law by consent and not by compulsion. State sovereignty is maintained because states accede to international law by choice.
In general, international law functions quite smoothly. It’s often said that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” Compliance takes place across many different sectors and areas of cooperation, and is enforced between states through reciprocity and legal responsibility. States abide by their legal obligations because they want other states to do the same, which in turn makes international interactions more predictable, stable and efficient.
International cooperation is often facilitated by legal instruments called treaties, which are written agreements among states creating rights and obligations for signatory countries. They create binding rules only for those states that become parties to them and then only where the treaty’s entry-into-force requirements have been met.
A state that signs a multilateral treaty is not immediately bound by the treaty. First, the country’s governing institutions must ratify the treaty to confirm its willingness to be legally bound. A treaty comes into force when a pre-determined number of states have ratified the text.
Treaties don’t have to be legally binding (in part or at all). The difference between binding and non-binding law is known as hard and soft law. Hard law generally consists of legally binding obligations that are precise and that delegate authority for interpreting and implementing the law. Conversely, soft law provisions are often vague and flexible, giving the signatories wiggle room in their obligations. The vagueness of soft law provisions leaves it up to states whether to implement a provision, an ambiguity which is required in order to obtain as many signatories as possible.
Often treaties will contain a mixture of hard and soft law provisions. Framework conventions are a type of treaty that are usually legally binding but do not specific rules for straightforward implementation. They provide the shell within which hard law provisions can crystallise over time, often through the negotiation of protocols. Protocols typically provide rules and mechanisms that are very specific, often amending or adding additional provisions to a previous international convention.
The United Nations Framework Convention on Climate Change (UNFCCC) is an example of the convention-protocol treaty model. The UNFCCC established a framework for the development of binding greenhouse gas emission limits, while the later Kyoto Protocol contained specific provisions and regulations adding to the UNFCCC. Further additions to the hard law component of the UNFCCC regime are negotiated annually at the conference of parties meetings (COPs).
The Two-Level Game
The politics of international relations adds an additional layer of complexity to the difficult process of negotiating international law. The politics of international negotiations can be conceived of as a two-level game, where national policy makers are required to make decisions that will satisfy both domestic and international objectives and audiences.
At the national level, domestic groups pursue their interests by pressuring the government to adopt favourable policies, and politicians seek power by constructing coalitions among those groups. The domestic dimension of the two-level game is complicated by the personalities and worldviews of political leaders, political and bureaucratic processes, public pressure, and the structure of national economies.
At the international level, national governments seek to maximize benefits in line with the preferences of key domestic constituents, while minimizing the adverse consequences of foreign developments. To execute a successful negotiation, negotiators can only promise or concede as much as their domestic constituents will allow.
Negotiating bilateral treaties between two countries on single issues is difficult enough, so imagine the complexity of nearly 200 countries attempting to agree on a binding treaty covering a multitude of issues that touch on nearly every dimension of public policy and human experience.
Because of this complexity, countries tend to coalesce into negotiating blocs consisting of states with broadly common interests, who negotiate together as a group to maximise their bargaining leverage. There are eight primary groupings in the COP process at present…
- Group of 77 + China (133 countries from developing world + China).
- BASIC (India, Brazil, South Africa, China – most advanced members of G77).
- European Union.
- Alliance of Small Island States (AOSIS) – 43 countries.
- Umbrella Group (Japan, the US, Switzerland, Canada, Australia, Norway and New Zealand; Iceland, Mexico, South Korea as observers).
- Least Developed Countries (LDCs – 48 states).
- African Group (53 African states).
- Environmental Integrity Group (Mexico, Switzerland, South Korea – countries not formally in any other bloc).
With the international legal process, the two-level game and inter-state alliance politics all at play, we can see that negotiations already messy before parties even start talking!
By the 1980s, climate change was recognised as a problem of sufficient gravity to warrant concerted international action. In 1988, UN General Assembly Resolution 43/53 declared climate change as “a common concern of mankind” and established the Intergovernmental Panel on Climate Change (IPCC). The IPCC’s role was and remains to regularly update and synthesise the scientific understanding climate change for policy-makers around the world.
The IPCC produced its First Assessment Report on the state of climate change science in 1990, warning that, although there were many uncertainties, human activity was leading to increased atmospheric CO2 concentrations and rising temperatures.
The IPCC First Assessment Report formed the background to the November 1990 Ministerial Declaration of the Second World Climate Conference, which recommended the urgent negotiation of a framework climate convention. In addition to the publication of the IPCC First Assessment, political momentum for an international legal mechanism to combat greenhouse gas pollution gained impetus from the adoption of ambiguous national GHG reduction targets by a number of OECD countries and concurrent preparations for the forthcoming Earth Summit (UNCED) in Rio de Janeiro—the Rio Earth Summit.
This instrument was a treaty called the United Nations Framework Convention on Climate Change (UNFCCC). Its final text was adopted in May 1992 and was formally opened for signature at the Rio Earth Summit in June of that year. The Convention entered into force on 21 March 1994 after reaching its entry-into-force requirement of 50 ratifications.
The UNFCCC is a framework of soft law non-binding commitments and guiding principles, with the long-term objective of solidifying emissions reduction commitments into binding hard law. Under the Convention, governments agreed to collect and disseminate information on greenhouse gas emissions, national policies and best practices, launch national emissions abatement strategies, and cooperate in preparing for adaptation to climate change impacts.
The Convention divides signatory countries into three main groups: First come the Annex I Parties, which include the industrialized countries that were members of the OECD in 1992, plus countries of the former Soviet Union designated as “economies in transition.” Second come the Annex II Parties, comprising the OECD members of Annex I, but not the economies in transition’ countries. The third group are the Non-Annex I Parties, which are mostly developing countries or countries recognized as being especially vulnerable to adverse climate impacts. Annex II parties are required to assist Non-Annex I and economy-in-transition countries with financial and technological resources to undertake emissions reduction activities and adapt to adverse climate impacts. This division enshrined the concept of “common but differentiated responsibilities,” which is enshrined in Article 3.1 of the convention…
“The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.”
The Kyoto Protocol
Under the UNFCCC, an annual “Conference of Parties” (COP) meets to negotiate the strengthening of the UNFCCC principles (see Article 3 of the convention).
The first conference of parties took place in Berlin in 1995. This conference adopted the Berlin Mandate, a plan to guide a two-year negotiating process with the aim of achieving a legal instrument to address emissions reductions for Annex I states, the developed countries, within the UNFCCC. The Berlin Mandate reaffirmed the doctrine of ‘common but differentiated responsibilities’ and on this basis, after heated debate, concluded that only the developed Annex I countries should take on binding emissions reduction targets in the initial commitment period.
The specifics of these commitments were to be the focus of the legal instrument to be negotiated over the following two years. The two-year negotiating period initiated at COP-01 in Berlin culminated at COP-03 in Kyoto, Japan, in 1997.
Intensive, divisive and protracted negotiations resulted in the Kyoto Protocol, which outlined the emissions reduction obligations for Annex I countries, along with additional schemes including emissions trading, clean development mechanisms and joint implementation to help facilitate emissions reductions.
Most Annex I countries agreed to emissions reductions in the range of 6-8% below 1990 levels, during the first emissions budget period from 2008–2012. It was left to individual countries to choose their own method for achieving their targets. Non-Annex I countries took on no obligations under the Kyoto Protocol.
Australia negotiated a controversial emissions target of 8% above 1990 levels, arguing that it’s resource-intensive economy entitled it to pursue different targets from its Annex I counterparts. Incidentally, it was my displeasure with Australia’s line at Kyoto as a young undergrad student that led me to take a more active interest in the international politics of climate change.
Although it has its detractors, the Kyoto Protocol is widely regarded as an unprecedented achievement in international law, given the number of parties involved, the complexity of the issues, and the enormity of the challenges facing the negotiators.
Its main criticisms were the non-binding nature of the emissions reduction commitments, the modesty of those commitments and the lack of enforcement mechanisms. The Protocol’s non-ratification by the United States, the world’s then-largest gross polluter, and Australia, one of the world’s largest per capita polluters, was a further drawback.
Nonetheless, given the strong temptation for many states not to comply with their targets, accepting modest initial targets was seen as a superior outcome to no mandatory targets, or no agreement at all. The initial targets were understood merely as a first step in a permanent process of negotiation to strengthen the UNFCCC during the twenty-first century.
Kyoto’s False Start
The COP was to finalise the operational details of the Kyoto Protocol at COP4 in Buenos Aires in 1998, but negotiations continued until COP7 in the Moroccan city of Marrakech in 2001.
Two inter-related issues were the main stumbling blocks to progress: flexibility in meeting CO2 reduction targets and the inclusion of carbon sinks as a substitute for emissions reduction. These were advocated strongly by several developed countries, including Australia, to allow them to meet their reduction targets while minimizing harm to their national economies. These ideas were incorporated into an amended Kyoto text negotiated at COP-07 in Marrakech in 2001, known as the Marrakech Accords. After the Accords were negotiated, several more countries agreed to sign the treaty, the most notable exceptions being the US and Australia.
COP-07 in Marrakesh also saw the emergence of a two-track process within the UNFCCC. The first track—Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP)—featured continuing efforts to strengthen the Kyoto Protocol for its initial compliance period between 2008 and 2012. The second track—Ad Hoc Working Group on Long-term Cooperative Action Under the Convention (AWG-LCA)—focussed on producing a post-2012 successor agreement to succeed the Kyoto Protocol after the expiry of its initial compliance period.
The two-track process came about because of nagging problems with the Kyoto Protocol itself. The protocol does not include the US and China, the largest gross polluters, and up until 2007, one of the largest per capita polluters in Australia. It emerged that less than 20 countries were on track to meet their Kyoto targets, twelve of which were post-communist countries who scraped under their targets because of economic contraction, rather than concerted mitigation efforts.
Three major cleavages developed within the UNFCCC process. Developed and developing countries continued to disagree over the specifics of “common but differentiated responsibilities.” This disagreement was highlighted most starkly by the diverging positions of the United States and China. Despite not having ratified the Kyoto Protocol, the US consistently argued that the price of its ratification would be the inclusion of binding targets for newly-industrialised Non-Annex I countries including China and India. The Chinese argued for differential non-binding targets, in line with “common but differentiated responsibilities.”
In addition, a rift developed between the US and the EU, who lobbied strongly for the US to ratify the protocol and adopt a stronger unilateral emissions reduction position, independent of the inclusion of Non-Annex I countries.
The Bali Roadmap and the Copenhagen Hype
COP-13 in Bali produced the Bali Roadmap, a significant outcome for the advancement of the climate regime. The conference dragged on an extra day and reached a dramatic conclusion when the Papua New Guinea delegation pointedly criticised the American position, leading the US delegation to make an abrupt about-face and join the consensus.
The Bali Roadmap was established in wake of the US back flip. Under the Bali Roadmap, all Parties confirmed their intention to proceed with the Kyoto Protocol negotiations and institutionalise the parallel negotiating track to formalise a successor agreement to the protocol. Together, the two negotiating tracks under the Bali Roadmap ensured that 100% of global emissions would be covered through the negotiation of mitigation commitments for all countries.
More importantly, the roadmap sign-posted COP-15 in Copenhagen in 2009 as the deadline for producing a binding post-Kyoto international emissions reduction treaty, merging the two parallel negotiating tracks. This is why COP-15 in Copenhagen was built up as such a momentous event.
The long-awaited Copenhagen conference culminated two years of intense negotiations launched with the 2007 Bali Roadmap. Yet from its outset, COP-15 was characterised by a lack of trust, bitter divisions, confusion and setbacks. In addition to the long-standing US-China, US-EU and Global North-Global South divisions, the conference was shaken by the leaking of a draft text that was unacceptable to Non-Annex I countries, who were effectively frozen out of the negotiating process.
The conference also saw open squabbling among the typically unified developing countries in the Group of 77. Many developing countries were now uncomfortable with China’s leadership role of the Group of 77, arguing that as an economic powerhouse, China’s interests no longer coincided with their own.
The basic terms of an agreement called the Copenhagen Accord were brokered directly by President Obama and a handful of key developing country leaders from the BASIC bloc on the final day of the conference, capping two weeks of harsh rhetoric and procedural warfare.
The Copenhagen Accord provided for explicit emission reduction pledges by all the major economies – including, for the first time, China and other major developing countries – but charted no clear path toward a treaty with binding commitments.
Under the accord, Annex I countries committed to implement economy-wide emissions targets by 2020 and jointly mobilise US$100 billion a year to facilitate technology transfer and capacity building in Non-Annex I countries. For their part, Non-Annex I countries vaguely committed to “implement mitigation actions.”
We should note that the Copenhagen Accord was a political, as opposed to a legal, agreement. Formal decisions under the UNFCCC are taken by consensus. Because many countries opposed the accord, the Conference of the Parties only “took note” of the accord and did not technically accept the text.
Overall, COP-15 was a great disappointment. The lofty expectations built up since COP-13 in Bali were deflated by the Copenhagen Accord, which fell well short of the binding agreement envisaged by the Bali Roadmap.
The episode led many observers to question the prospects for significant further progress within the UNFCCC process. In Australia, this disappointment contributed to the failure of the government’s Carbon Pollution Reduction Scheme legislation, and led to the downfall of both Prime Minister Kevin Rudd and Opposition Leader Malcolm Turnbull as leaders of their respective parties.
Picking Up the Pieces After Copenhagen
COP-16 in Cancun, Mexico, was a stark contrast to the drama, animosity and bitter disappointment of COP-15 in Copenhagen. Chastened by the prospect that another failure could cripple the UNFCCC process, countries were willing to accept incremental outcomes falling well short of their initial default positions.
The tone of negotiations was more cooperative. As hosts, the Mexican government worked diligently to keep the negotiating process open and inclusive. The United States and China avoided any open bickering and India emerged as a key broker between the two.
At issue was the imperative of incorporating the essential elements of the Copenhagen Accord into the UNFCCC, remembering that the Copenhagen Accord had not been officially endorsed at COP-15. In order to achieve this, substantive questions about if, when and in what form binding emissions targets would take were delayed in order to institutionalise the spirit of the Copenhagen Accords.
The Cancún Agreements, as the final text is known, include the actions pledged under the Copenhagen Accord, marking the first time that all major economies have pledged explicit actions under the UNFCCC, since its launch nearly two decades ago.
While faith was temporarily restored in the UNFCCC process, the key players could not continue massaging over the vital details indefinitely. COP-17 in Durban took place amid great uncertainty, with several parties to the Kyoto Protocol, including Canada, Russia and Japan, refusing outright to undertake a second commitment period in the lead-up to the conference. The Durban conference also took place amid the unfolding European debt crisis, adding to the improbability of further progress in negotiations.
For most of the conference, the dubious prospect of progress was palpable among observers and participants. Yet despite some strong malaise during the negotiations which ran almost two days overtime, the summit produced the Durban Platform for Advanced Action, which delivered limited progress in three key areas:
First, the platform indicates an intent to negotiate a single, legally binding agreement by 2015 covering all major carbon pollution emitters, including China, India and the United States, uniting the Kyoto Protocol and post-Kyoto parallel negotiating tracks.
Second, it established the Green Climate Fund, building on the commitment made in Cancún to raise US$100 billion a year to help the world’s poorest nations invest in clean energy and climate impact mitigation.
Third, it documented a commitment from all countries to increase the level of ambition of their national efforts to reduce pollution, building on the formal recognition that existing commitments are not enough to keep global warming below the critical threshold of 2°C above pre-industrial levels.
Durban also saw further implementation of the Cancún Agreements in the areas of pollution reductions for both developed and developing countries, transparency and adaptation, and resolved the long-standing question over the future of the Kyoto Protocol.
Nonetheless, these incremental breakthroughs still fell well short of the binding agreement envisaged by the Bali Roadmap. With the signing of a new agreement delayed until 2015 and implementation until 2020, the binding commitments intended to be finalised at COP15 in Copenhagen have been further delayed.
No More Low-hanging Fruit
For twenty years, developed countries have attempted to simultaneously negotiate reductions in carbon emissions and preserve economic competitiveness. To this point, no countries have been willing to make substantive sacrifices to achieve a binding international agreement.
Now that the structural foundations to a binding agreement covering all parties has been laid in Durban, further progress in the UNFCCC process will require countries to make real sacrifices to meet their climate mitigation objectives. Whether this is politically feasible at the domestic level, given the array of special interests lined up against strong climate action and the ongoing uncertainty in the global financial and monetary systems is another matter.
Nonetheless, the scientific evidence pointing to an unfolding climate tragedy is clear. While the international community grinds its way through the tortuous UNFCCC process, the clock is ticking down on the increasingly narrow time window available to human society to avert disaster.
The implications of the two-level game of international negotiations for us as concerned citizens are clear. We need to maximise pressure on our governments to adopt strong emissions reduction targets while simultaneously minimising the relative power of recalcitrant sectional interests over the policy-making process.
As stated above, national negotiating teams can only go as far as their domestic constituencies allow. Altering the balance of power among domestic constituents is pivotal to altering the balance of possibilities in the UNFCCC process.