Anyone following prospects for the Copenhagen climate change conference recently can be forgiven for feeling mightily confused.
On Sunday, President Obama confirmed what others had said before – that Copenhagen would not produce a fully elaborated legally binding treaty, in the mould of the Kyoto protocol or its parent, the UN Framework Convention on Climate Change.
So far, so innocuous. The negotiations have been moving in that direction for months. In March, in Bonn, Yvo de Boer, the UN’s top climate change official, said the Copenhagen summit was unlikely to come up with “a fully elaborated deal”. In September, Connie Hedegaard, the Danish environment minister, told the Financial Times in an interview that the conference would come up with “a political deal”, setting out the strategy but not necessarily dotting every i.
This was subsequently repeated by Ban Ki-moon, by the European Union, by UK officials, and all and sundry.
So should we care?
A little bit, but not too much.
When Mr Obama made his admission, some observers went a little bit wild. They proclaimed the death of Copenhagen. It could not come up with a deal, they said.
They were wrong.
And when Mr Obama then clarified his own remarks on Tuesday, saying that he was still determined to do a deal at Copenhagen, then those who had declared that he had sounded the death knell of the summit had a bit of explaining to do. Mr Obama had revived hopes of a deal, was a common report.
But in fact Mr Obama had never declared Copenhagen dead. He had made it clear from the start that a deal was still possible – just that a treaty was not.
So, in this case, people must be wondering what Copenhagen is going to produce. Has it been written off already because signing a treaty is not possible there? Or is the process still able to produce a deal?
The answers to these questions are no and yes.
The central point is this: a deal is not the same as a treaty. And a deal with a treaty to follow is not such a bad thing.
The deal that nations have been working towards for the last year is this: a document that will commit each developed country to cutting its emissions by a certain amount by 2020; that will require developing countries to set out the commitments they will make to curb the future growth of their emissions; that will set out how the rich world will provide financial assistance to the poor, that will help them curb emissions and cope with the effects of climate change; and that will include an outline of the governance structures needed to oversee all of this.
This is not quite the same as a full legally binding treaty running to hundreds of pages and covering every possible permutation, but neither will it be some woolly face-saving formula. If it is to be accepted, this deal will have to be contained in a properly detailed document, setting out commitments on each of the above and the measures to be taken by each country.
And it will have to be signed by each of the world’s leaders, or their representative.
Lars Lokke Rasmussen, the Danish prime minister, today described it thus: “Copenhagen should neither be a stopover nor a tiny stepping stone as some proclaim.”
He said: “The Copenhagen Agreement should be concrete and binding on countries committing to reach targets, to undertake actions, to provide agreed finance. Developed countries must take the lead by delivering substantial [emissions] reduction and finance. We need numbers on the table in Copenhagen.”
And he added: “So why not a legally binding text in Copenhagen? Because the time and the diverging positions of the parties, as well as the number of possible outstanding issues to be resolved, will not allow for it to happen. But that must not be an excuse for inaction.”
He was also scathing about the suggestion that Copenhagen could come up with only a partial agreement, covering only some parts of the four key issues at stake. “We need the commitments. We need the figures. We need the action.”
Sure, countries will be able to wriggle out of this deal if they try really hard. A new administration could take over in any of the signatory governments and say, this is just a political deal, it’s not binding, so we rescind it.
But, in many jurisdictions, the same would be just as true of a legally binding treaty, before that treaty was ratified by the country’s national parliament. Look at what happened to the Kyoto protocol – signed by the Clinton administration, but never ratified by the US Congress, so the US was never bound by it.
In the six months to a year after Copenhagen, that political deal and that document can be turned into a fully articulated legal treaty by the squads of negotiators and legal experts. That wrangling will have its own problems and will throw up its own wranglings and threats and delays and at any stage of that second part of this process, the whole thing could fall to pieces.
But if the negotiators have a clear mandate from leaders at Copenhagen, that sets out the commitments each country is prepared to make, to the satisfaction of all, then the legal process of treaty writing becomes the easier part of the whole.
So the idea that a political deal at Copenhagen is a massive watering down from a full treaty is just not the case. If a strong political deal emerges – and that is still in doubt, whatever Mr Obama’s commitments – then it will set the world on course to a global framework on climate change.
Further reading: After Obama’s remarks, how could a deal at Copenhagen be reached? (FT)