Does the U.S. want a legally binding treaty?

With just two weeks left before the first day of negotiations in Paris, the United States is still at odds with the international community over what the legal structure of a potential agreement might look like.  In an interview with Financial Times last week discussing the Paris agreement, Secretary of State John Kerry was quoted as saying,

“It’s definitively not going to be a treaty…They’re not going to be legally binding reduction targets like Kyoto or something.”

These comments come just weeks after U.S. climate envoy Todd Stern plainly told a Senate Foreign Relations subcommittee, “We are looking for something that is nonbinding.”

 

The stance of the Obama administration isn’t exactly news.  It’s been known for some time now that the President would seek a nonbinding treaty for a number of reasons.  First, should any new agreement or treaty introduce legally binding emission targets for the United States, it would require the ratification of the U.S. Senate.  Given the current political climate in Congress, it would be all but impossible for at least 67 senators (two-thirds of the body) to sign on to the deal and the treaty would be dead upon arrival.  A nonbinding agreement also gives the United States a hand with countries like India and China, who have repeatedly balked at the notion of being legally bound to greenhouse gas emissions in the same manner as developed nations.

 

The United States has instead tried to push for a final agreement with a more “bottom-up” approach where countries voluntarily put forward emissions-reduction pledges that are then subject to international scrutiny.  The belief is that what gives the targets that countries have put forward teeth is how deeply they are rooted in domestic national laws and policies.  As put by a former Clinton climate advisor,

“What really matters is legal measures to limit emissions within major countries, which are actually enforceable and subject to penalties, which international pledges will not be.”

 

Still, the bluntness of Secretary Kerry’s comments so close to the Paris conference highlights the rift between the United States and other key players like the European Union and small developing countries, all of whom have been vocal and assertive in their commitment to producing a strong legally binding Paris agreement.  In response to Kerry’s comments, French President François Hollande said,

“If the agreement is not legally binding, then there is no agreement because it would mean that it won’t be possible to control or verify the commitments that will be taken.”

 

This disparity between the United States and a large portion of the rest of the world presents yet another major hurdle to negotiators when they take their seats in Paris on November 30th.  After the largely unproductive and tense ADP session in Bonn this past October, it’s clear that many issues, both technical and constitutional, lie before the international community.  Countries still disagree on everything from financing to mitigation efforts, and progress on resolving those disagreements won’t mean much if the legal framework of the final decision remains ambiguous.  One can only hope that the atmosphere of urgency in Paris and the lessons learned from past negotiations will be enough to lead to an acceptable outcome.

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