2015 marks 25 years of UN climate negotiations. As the almost 200 Parties to the UNFCCC are starting to file their “individually determined contributions” to the post 2020 climate regime to be negotiated in Paris at the end of this year, it is already becoming clear that after 25 years of effort, we will not end the year 2015 with a binding, adequate and equitable allocation of responsibilities, benefits, risks, and uncertainties to manage the human impact on the global climate system. It seems clear that key parties to the negotiations continue to view the economic and political stakes as too high to accept their share of responsibility in the context of a binding global agreement. We can debate whether these assessments are fair, and whether they even best serve the self-interest of the countries involved, but it is difficult to escape the conclusion that we will fall short, yet again, in 2015.

How did we get here, and what are the options going forward?

The UN climate regime has been built on the largely successful model of the Vienna Convention on Ozone Depleting Substances and its Montreal Protocol. The expectation had been that eventually, close to 200 UN member states would reach a consensus agreement on how to allocate the responsibilities, benefits, risks and uncertainties of climate mitigation, adaptation, finance, technology access, capacity building and loss and damage in a manner that is equitable, both intra, and inter-generationally. After modest initial progress in the form of the UNFCCC and the Kyoto Protocol, the negotiations for the past 15 years have been largely marked by failure, delay and retreat, all the while focusing on the UN climate regime as the place to solve the growing climate crisis. Some countries, at times, have taken steps outside the UN process, however, these steps have been modest, and they have either been an effort to undermine the UN process (such as the Asia-Pacific Partnership or the Major Economies Forum), or they appear to have been short terms efforts motivated by a desire to directly influence the UN negotiations (such as various US and EU efforts to reach out to key developing countries).

In recent years, the UN climate negotiations have become an almost annual ritual of expectations based on science running up against political realities. Inevitably, governments change in key countries resulting in new hope that a country that has been particularly difficult will become a more constructive player in the negotiations (such as elections in the US and Australia in the previous decade), coupled with new despair that a country that has been a constructive player in the past is becoming a barrier to progress as a result of changes in domestic politics or other circumstances (such as elections in Canada and Australia, and the Fukushima nuclear accident in Japan in the current decade). Since the Conference of the Parties in 2005 in Montreal, when the current round of negotiations for a comprehensive global regime was first launched, we have seen political shifts that offered hope in the United States, Japan, Australia, and India among others. Over that same time period, we have seen shifts that have created new barriers to the negotiations in Japan, Canada, and Australia to name a few. In short, the political realities have shifted at time, but the end result, inevitably, has been that a number of key countries are politically unwilling or unable to make a binding commitment to an equitable share of responsibility to enable an adequate global agreement on climate change.

After 25 years of growing futility, it is time to reflect on whether this process is still the best way to make progress on the climate change challenge. With time running out to avoid the worst impacts on climate change through an orderly transition of economies and societies in over 190 countries, it may be time to re-consider putting all our hopes in the UN climate negotiations. Perhaps it is time that we look at the UN climate negotiations as just one tool to solve the climate crisis, rather than continue to think of it as the primary mechanism, and perhaps inadvertently push other mechanisms to the sidelines in the process.

The focus on the UN climate regime has been understandable. Not only was it based on the success from the Ozone regime, but it remains clear that climate change cannot be controlled without global cooperation. This means that the UN climate regime has to be part of the solution to the climate challenge. The mistake, perhaps, has been to look to the UN climate regime almost to the exclusion of other mechanisms and approaches, and to expect the UN climate regime to serve as the primary mechanism to overcome the political and economic barriers to progress. Perhaps the UN climate regime has a more modest but effective role as a barometer of where we are and what remains to be done, rather than to view it as the form for resolving the barriers to progress.

Rather than continuing to seek binding commitments from parties that are adequate but that some countries inevitably will not accept and others will not implement, the primary role of the UN climate regime might be to track and shed light on the adequacy and equity of global and individual progress toward the goal of keeping global temperatures below 2 degrees above pre-industrial levels (as well as the adequacy of the 2 degree goal). The UN climate regime could regularly review both the collective voluntary commitments made and the actual progress made by each country toward their voluntary commitment. Through this review process, principles of equity and adequacy would be developed and refined over time.

Assuming the UN climate regime shifts focus to serving as a repository of voluntary commitments and as the forum for assessing and debating adequacy and equity, how would political and economic barriers to progress be overcome? Regional and bilateral efforts offer perhaps the greatest hope of overcoming these barriers as they would not be hampered by the need for global consensus, and would encourage “coalitions of the willing” in key areas. The EU, for example, has significant potential to lead regionally, and to reach out to key developing countries to overcome key barriers to global progress. Similarly, US efforts to engage with China and India could play a critical role in overcoming barriers in key participating countries. Such bilateral agreements between the US and emerging economies, for example, can both convince the US to act, and unlock motivation in emerging economies to choose a different development path, something the UN climate negotiations have not been able to secure in 25 years.

In the Kyoto negotiations, parties tried but failed to reach agreement on principles of fairness (a debate between capacity and historical responsibility that was arguably doomed to failure over concerns about the implications for potential future liability) and decided to jump straight to negotiating binding commitments for developed countries. This approach has failed because the short-term political and economic stakes have proven to be too high in some countries to reach a global consensus on a full package, meaning a package that is adequate, equitable, and binding.

The main choices for Paris, based on the history of the negotiations, the domestic situation in key countries, and the individually determined contributions (INDCs) that are now coming in, would seem to be the following:

• a binding agreement that does not include the US, and likely also not Russia, Canada, Japan, and likely some other developed countries, with resulting uncertainly about the willingness of other parties to make adequate commitments
• a non-binding agreement that includes all parties with firm commitments that are inadequate, but that are likely to be implemented
• a non-binding agreement that includes all parties with voluntary commitments that are adequate but that are not likely to be implemented
• a non-binding agreement with voluntary commitments that are acknowledged to be inadequate, and that focuses on full transparency and on the responsibility of the UN climate regime on tracking adequacy and equity of commitment, and to seek agreement on principles of equity and adequacy, but relinquishes the UN climate regime’s responsibility to turn principles of adequacy and equity into a distribution of commitments to individual parties.

So here are the questions I am left to ponder this year as I watch the negotiations unfold. How many more years of paralysis can we afford? Given this history and state of the negotiations, would an abandonment of binding targets offer the best hope for enabling the UN climate regime to play a meaningful role going forward? Should the UN climate regime continue on its current track, or should it focus on tracking and assessing progress toward addressing climate change, rather than seeking consensus on the actual distribution of responsibilities? Are there other solutions to the impasse?  I come to ask these questions reluctantly, having long been an advocate for a binding UN Agreement as the best hope for addressing the climate crisis.

For further readings on my reflections on the failure of the climate negotiations in recent years, see:

http://dx.doi.org/10.2139/ssrn.1535669

http://dx.doi.org/10.2139/ssrn.2389851

To download any of my publications on the UN Climate Regime, see http://ssrn.com/author=715387.  

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute