Abby L. Harvey
GHG Monitor
10/9/2015
The United States needs for the global climate agreement hoped to be struck at the end of the year to be nonbinding because it will not be ratified by the Senate. Because of this, other countries have built-in leverage going into the negotiations, Lisa DeMarco, a partner at Zizzo Allan DeMarco, said this week at the United States Energy Association’s Eighth Annual Energy Supply Forum.
Lengthy and ongoing negotiations will culminate in December in Paris at the 21st Conference of the Parties (COP21) of the United Nations Framework Convention on Climate Change (UNFCCC). The new agreement would replace the Kyoto Protocol, taking effect in 2020.
A good deal of debate to date has focused on whether the new agreement will be legally binding. The U.S. is firm on the need for a nonbinding accord, as anything including mandatory measures would have to be ratified by the Republican-controlled Senate, which is “going to be near impossible,” said DeMarco, whose Toronto-based law firm specializes in climate law.
The wording of the agreement is of particular concern to the U.S. If it calls country pledges “commitments,” they are more legally enforceable than if pledges are called “contributions.”
The use of the U.S. requirement of a nonbinding agreement as a negotiating tool is evident in China’s Intended Nationally Determined Contribution to the UNFCCC, which calls for a legally binding agreement.
“The 2015 agreement shall be a legally binding agreement implementing the Convention. It can take the form of a core agreement plus COP decisions, with mitigation, adaptation, finance, technology development and transfer, capacity 20 building and transparency of action and support being reflected in a balanced manner in the core agreement and relevant technical details and procedural rules being elaborated in COP decisions,” the Chinese INDC says.
The inclusion of this language is a play to get other countries to give leeway on other issues more important to China, DeMarco said. “One of the key issues for China is not having third-party external review of the contributions. When you go into a negotiation you put stuff on the table that you know is going to get negotiated away because you want to make somebody move, that’s manufactured leverage," she explained. “I think people will back down on the third-party review for China and others will back down with the commitment versus the contribution [for the U.S.]”