The real legally binding agreement about greenhouse gas emissions

Nothing could be more different from the atmosphere of the Copenhagen climate change conference than the atmosphere in which the Cancun conference is being conducted. Last year’s hope of reaching a “legally binding commitment” to reduce emissions seems to have been almost completely abandoned and the circumspect goals of the Cancun conference are as far away from the grand ambition of Copenhagen as can be imagined. The entire project of preventing or mitigating global warming rather than adapting to it seems to be being quietly abandoned. If this is so, then it is extremely important that responsibility for the adoption of a policy which has fruitlessly dominated the international environmental agenda for eighteen years and involved the wasteful expenditure of billions of dollars be sheeted home.

Blaming the signatories to the UN Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Copenhagen Accord for a failure to reach a legally binding agreement to reduce emissions is a complete red herring. Those involved in the climate change negotiations must be held responsible for the fact that they did reach a legally binding agreement, but it was one to allow an increase in global emissions. The developing countries are now being blamed for failing to give emissions reduction priority, but the Framework Convention explicitly gives them permission not to do so. Article 4.7 reads:

“The extent to which developing country Parties will effectively implement their commitments under the Convention … will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.”

To spell it out: this provision expressly gives increasing emissions in pursuit of economic growth an overriding priority over reducing emissions. The legal position is perfectly clear.

The Kyoto Protocol changed nothing. Its reference in Article 10 to the “common but differentiated responsibilities” of the developed and the developing countries was explicitly made conditional on acknowledgement that it did not create any new commitments for the latter and was explicitly subject to Article 4.7 of the Framework Convention. This is to say, the common but differentiated responsibilities were mere verbiage, and the Protocol failed to impose any concrete reductions responsibility whatsoever on developing countries. Much has been made of the inadequacy of the cap the Protocol placed on the developed countries. It is not acknowledged that no cap of any sort was placed on the developing countries, and this meant that no cap has ever been placed on the global growth of emissions. Kyoto was bound to fail, and, indeed, agreed the way it would fail.

At Copenhagen, some attempt was made to force the developing countries to agree binding emissions reductions. As this was a complete departure from what had been agreed over the entire course of previous climate change negotiations, it was rightly forcibly rejected, and the developing countries’ notifications to the ad hoc Copenhagen Accord could not be clearer about this. China’s notification expressly states that any steps China may take “are voluntary in nature and will be implemented in accordance with the principles and provisions of the [Framework Convention], in particular Article 4, paragraph 7.”

The effective abandonment of the Kyoto Protocol at Cancun makes it urgent to reverse the steps taken under it, which are failing as they were bound to do, before they cause yet more immense waste. But, even more importantly, the policy making process which yields such farcical and wasteful results must be abandoned and the first step must be the complete reform of the UNFCCC Secretariat.

David Campbell is a Professor at Durham Law School, Durham University.