Before he left Paris, US President Barack Obama generated some excitement with his remarks that he would like at least a part of the agreement under negotiation here to be legally binding.
Whether the climate agreement should be legally binding is among the most contentious issues in the talks. The US has been clear that it does not want the outcome to be legally binding. Secretary of State John Kerry said last month that the agreement to come out of Paris would “definitely not be a treaty”.
Obama did not overturn that position with his remarks on Tuesday, even though it had people at the conference talking about it. His prescription was limited only to the process of transparency, through periodic review of targets each country has set for itself. And that has long been the US position.
Legally bound or not
It has become very evident now that the outcome expected from Paris is not going to be an international treaty or protocol, in the nature of the Kyoto Protocol, for example, that it seeks to replace. It is not going to have emission reduction targets like Kyoto had. Targets are being placed in the climate action plans, called the Intended Nationally Determined Contributions, or INDCs, that every country is framing and putting forward.
The INDCs are supposed to be separate from the agreement. There will be a reference to INDCs somewhere, of course. It is proposed by the US and some others that this part of the agreement be made legally binding. What this will mean is that while it would be incumbent upon countries to submit an INDC, what the INDC would contain would remain the decision of the individual nation.
A similar treatment is proposed to be given to the review mechanism as well — though, unlike on the INDCs, there is no consensus on this. The INDCs are supposed to be reviewed every 5 or 10 years, so that the world can assess if the actions it is taking are consistent with requirements. The US wants every government to participate in the review and subject its climate actions for the world to assess.
What Obama was suggesting is that this requirement of a review mechanism must also be part of the agreement that is legally binding.
The European Union wants the entire agreement to be legally binding, in the nature of an international treaty or protocol. Most developing countries, including India, do not agree with the review mechanism being made legally binding. India wants the review to be a differentiated mechanism — with actions on climate by developed countries being subjected to stricter scrutiny.
The problem with a legally binding agreement
A legally binding international agreement needs to be ratified by the Parliament of every participating country. It also binds successive governments in all countries to abiding by the provisions of that treaty or protocol.
The US objection to a legally binding agreement stems from the fact that the Obama administration does not have enough support in Congress to get the agreement ratified. Obama is keen to ensure that a successful finalisation of a climate agreement becomes part of his presidential legacy — and does not want any agreement for which he would need to go to Congress. American negotiators are said to be watching closely to ensure that all provisions in the agreement being negotiated are supported by existing US law.
The US had faced a similar situation in the case of the Kyoto Protocol of 1997 as well. The then administration was able to get the House of Representatives behind it, but faced rejection in the Senate — and as such, the US was unable to ratify the Protocol and remained outside of it.
The Indian position
India says it is agnostic on whether the outcome of Paris is an international treaty or a simple agreement. It says as long as the member countries ensure the implementation of the agreement through domestic legislation, it would remain effective. But it is uncomfortable with actions of developing countries being subjected to the same kind of review as the developed countries.