To bind or not to bind?

No, it’s not a bondage thing. For those who follow the climate change negotiations, the current dustup in the media is about whether the treaty will be “legally binding” or not. The US says no; the EU says yes. France just caved — or did it? As with most things, Shakespeare comes to the rescue: is this, perhaps Much Ado About Nothing?

The problem, as usual, starts in the US. Ever since the debacle of Kyoto, when the US Senate preemptively voted 95–0 to not ratify the Kyoto Protocol before it was even drafted, we have known that the chances of a climate change treaty surviving the Senate were as good as James Inhofe’s snowball surviving its own Senate hell. That matters because if the Senate doesn’t ratify, the treaty isn’t legally binding; and if the US — the world’s largest economy, the largest historical emitter, and the second largest current emitter — isn’t legally bound by a treaty, then what good is it? And what other country would sign up to be legally bound if the biggest player isn’t playing ball? It risks the whole process falling apart.

The UNFCCC process doesn’t come up with a new treaty (also called a Protocol or an Agreement) every time it meets; usually it issues “COP Decisions” which are relatively minor and relate to procedural issues. These aren’t important enough to require ratification; but imposing emissions limits and requiring countries to deliver financing are serious commitments, and would require ratification. In fact, the UNFCCC has only produced one ratification-requiring treaty so far: the ill-fated Kyoto Protocol. Paris is slated to be the second: a legally binding treaty, requiring ratification by all parties. It’s right there in the text — check out Article 16. The ratification text is not in brackets, meaning that this is what all the parties have already agreed to. It clearly spells out that there will be a treaty-level Paris Agreement which will require ratification.

So, is John Kerry smoking crack when he says that there won’t be a legally binding agreement?

Well, not exactly. In addition to the treaty text, there will also be a COP decision, which is not legally binding. And so the question is really, which pieces are going to be in the Agreement (legally binding) and which will be in the Decision (not binding)?

Here again, if we look at the current negotiating text, things become much clearer. For example, there is no mention of emissions limits in the text — it’s not even under discussion. Instead, each country submits its own pledge (called an INDC); there is controversy about how to review those pledges, but nothing about making them legally binding. So Kerry is correct in saying that there are not going to be legally binding emissions limits.

So why is there a war of words going on? And did France really just back down?

I only see two interpretations for this very public disagreement about such a fundamental issue in what has otherwise been a carefully orchestrated process. One is that the US, as in Kyoto, is sleepwalking into a disaster. The other possibility is that, having thought about this for the last 18 years, they have a clever plan. Maybe even a loophole.

If you read the treaty text carefully, it calls for countries to “ratify, accept, or approve” the treaty. Acceptance and approval are rarely used; in the international regime, they carry the same legal weight as ratification but under US law, a treaty is only legally binding if it is ratified. So, could the President “accept” the treaty without submitting it to Congress? And would it be legally binding?

The answer seems to be yes and sort of, respectively. President Obama has previously “accepted” other environmental treaties, most recently the Minamata Convention (to control mercury pollution), without consulting Congress, arguing that they did not impose any legal obligations on the US that did not already exist in domestic US law. If the Paris Agreement only requires the US to do what it’s doing anyway — CAFE standards for cars and the Clean Power Plan — the administration could make a similar argument and “accept” the treaty, sidestepping Congress. However, that would leave the Paris Agreement vulnerable to a change of heart from future US governments: policy made by one President can be undone by another; or Congress could pass a law that would effectively force the US to withdraw from the Paris Agreement.

And therein lies the real problem: politics, not law. Acceptance by the US sends a much weaker signal than ratification, and will undermine the weak confidence that exists in the process. A plan to accept rather than ratify relies on other countries not paying much attention to the difference under US law; thrusting the issue into the spotlight endangers that strategy. Already, Canada’s Prime Minister has echoed Kerry, calling for a non-legally binding agreement. If that thinking catches on, the Paris Agreement may become the Paris Disagreement.

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