When is a treaty not a treaty? When it is a political agreement.
The question of whether the climate change conference in Copenhagen this December will produce a new global treaty on greenhouse gas emissions has been vexing the minds of negotiators and observers at the United Nations climate change talks in Barcelona this week – the last formal negotiating session before Copenhagen.
Since 2007, when countries set out a roadmap to a new agreement, the official line has been that a new treaty needed to be signed in December in order to give countries time to ratify it before 2012, when the current provisions of the Kyoto protocol expire.
But the UN and the EU have begun scaling back expectations that this can be achieved in the next six weeks.
Instead, they say the December conference must produce a “political deal”, that would have to be turned into a legal document in the subsequent months. The EU and the UN say it would probably take about six months; one senior negotiator, however, said it could take a year.
So, is this a big problem? It depends who you ask.
Yes, according to environmental campaigning groups. They fear that watering down an agreement from a treaty to a political deal is letting countries off the hook, and that the resulting delay in getting a fully fledged treaty will make emissions cuts harder to achieve.
No, according to the UN and major developed countries. They say that postponing the legal language until next year is just realistic, given the time available, and will allow more time to ensure agreement is reached on the most important areas of policy. These are:
- binding targets on emissions cuts by 2020 from developed countries;
- commitments from poor nations on slowing the growth of their emissions;
- firm offers of financing from rich to poor countries to help the latter tackle emissions and adapt to the effects of warming;
- an outline of the governance structures that should be put in place to ensure countries kept their promises.
A political agreement at Copenhagen would be as binding as if a treaty were negotiated, this argument runs. Countries signing up to a political agreement would find it hard to renege on those commitments. Furthermore, even if any treaty were signed at Copenhagen, it would still have to await ratification by national parliaments before passing into law.
As an example, the US signed the Kyoto protocol, but because it was never ratified by Congress, the signature had no legal force.
In the same way, if a treaty were signed at Copenhagen, its legal status would not follow until ratification. So, a political agreement is not a significant downgrade from a treaty, as it can be turned into a legal document later which would then have to go through the ratification process.
The process of watering down Copenhagen to a political agreement has been going on for months. In September, Connie Hedegaard – the forthright Danish environment minister who will host the December talks – told the Financial Times that she expected leaders only to set out “the political direction” at Copenhagen. In October, the UN’s top climate change official, Yvo de Boer, told the FT that he could not see a full treaty being signed in December. Earlier this week, the UN secretary-general Ban Ki-moon echoed his words.
Settling for a political deal at Copenhagen also makes an agreement more likely, as it removes a key obstacle that risked scotching progress on the talks. The obstacle is the legal form of a new treaty. Some developing countries, including China, are insisting that only a continuation of the Kyoto protocol is acceptable. But the US will not stand for this. The EU is prepared to compromise, for instance by decanting some of the provisions of Kyoto into a new treaty.
These discussions proved a major stumbling block at the previous negotiating session in October. By postponing a treaty, countries will be able to put off such thorny questions until 2010, while still achieving a substantive outcome at Copenhagen.
So a political agreement, though it may seem a watering down, will be no bad thing if it means that the major points that need to be in an agreement are covered. If that cannot be achieved in time, then wrangling about whether Copenhagen should produce a treaty or something with less legal force would have been futile anyway.