Moving beyond the United Nations
The Future of Global Climate Change Negotiation
The UN Climate Change Treaty staggered to its next stage, if only just, at the Durban Conference of Parties in early December 2011. But what was new? The Treaty has been up to the trick of brinkmanship with a touch of fudge for almost twenty years. It is not the negotiators fault but the inherently dysfunctional Treaty system. Setting in train some parallel platforms, both national as well as international, is well overdue. The emerging and unavoidable need to handle decisions on adaption may be one such opportunity. The object is not to replace the Treaty system but take off some of the intense pressure for delivery. One advantage of multiple processes is that it would no longer be in the interests of the enemies of global agreement to push the Treaty system to self-destruct.
It is 6 am on the 18th floor of the UN Building in New York. We – the small group of negotiators who form the ‘Friends of the Chair’ – have just been handed the ‘Chair’s text’. It will be put to the climate treaty negotiators in two hours time on a ‘take it or leave it’ basis. We have only reached agreement as a drafting group because someone was so tired that they have made a mistake. But despite the adrenaline that keeps our eyelids open, we are all so tired from arguing non-stop for 30 hours that we have no idea who made the mistake. That was the text of the Framework Convention on Climate Change in 1992. Those who have followed the fraught course of the Conference of Parties meeting in Durban last month will realise that little changes.
There is a reason for all this drama. While teaching my Masters Course, students were invited to negotiate just a small amendment to the Kyoto Protocol that addressed adding aircraft emissions. The UN Text they inherited was already replete with ‘square brackets’. In negotiating texts disputed language is square bracketed. Ideally negotiations involve trading-off language in one bracket against language in another. Being Imperial College, no one needed to role-play. We had a native US, EU and G77 developing country groups. It is an interesting experiment. Students who had worked together brilliantly on case studies, adding insights from many different backgrounds, were now at each other’s throats within 30 minutes. Some square brackets were resolved, but more were added. Three hours later they were no farther than they had been when they started. Instead of issuing a Chair’s text we called it a day. There is something a touch dysfunctional in an environmental negotiation!
No Binding Glue
Most international treaties seek to codify what is an emerging pattern of behaviour. Not all States of the UN are expected to be signatories. The Treaty provides a platform for common behaviour and a destination for those not yet ready to join. We would never have had a World Trade Organisation if everyone had to be a free trader from day one. The Law of the Sea took a decade to negotiate, and then had to wait for the minimum of 60 countries to ratify it in their respective legislatures before it came into force. That was a further 12 years. The US Congress, apparently mindful of its War of Independence, is seldom minded to ratify treaties that give majority voting powers to other States, even if the US complies more frequently than many others with treaty provisions. The 1992 Framework Convention’s ratification was the exception that only proves the point. It got through on a Tuesday afternoon with only 11 Senators present.
We have only reached agreement
as a drafting group because someone
was so tired that they made a mistake...
That was the text of the Framework
Convention on Climate Change in 1992
This snail’s pace is all because the UN is not a world government; it is a way of the world governing itself. Upward legitimacy is by definition slow if consensual; used only because global scale downward authority would be undeliverable or unenforceable.
The early environmental treaties surprised everyone in the UN by their apparent swiftness. Now older and wiser commentators know better.
So there we were in the early dawn, all looking at the operative part of the text, checking that the commas that we have moved to and fro have stayed where we agreed, loosening a qualification here and tightening another one there. All, that is, except India’s chief negotiator sitting on my immediate right. What is he doing, looking at the text at the back, procedural stuff agreed months ago? He tells me it is his rule. Always double-check the clause on the procedure for leaving the convention. Eighteen months notice it turns out. Canada as it happens has just left the Convention’s one and only Protocol without much ado. Yet the media, lobbyists and, at times, the UK Government, have been going on about the necessity of a binding commitment? It was apparently the outstanding point that delayed Durban so long. What is the game?
Domestic ratification of a convention usually creates domestic law, so a clear commitment creates clear law. But international law is otherwise not binding. How else could Sadam Hussein and Colonel Gadaffi have signed the Rio Declaration on Environment and Development in 1992? The International Whaling Convention has to steer clear of a proposition that would simply see all those who kill whales leave it. Even a domestic law is only operatively binding while it is on the statute book and someone is accountable for enforcement. There is nothing wrong with writing a law that looks as if it commits the citizens of countries to do something. What is wrong is others acting as if it had actually done so.
A lack of ‘binding’ glue is not the only systemic problem with UN Treaties. Constructing an international agreement inside the UN system necessarily entails a great deal of historical baggage. The terms ‘Developed’ and ‘Developing’ countries from the 1960’s are now clearly just meaningless. Climate Change inherited this model in the form of Annex 1 countries that at the time represented OECD membership. All kinds of countries, have since joined the OECD but have not volunteered to join Annex I.
The targets, whenever they are agreed, are set on national consumptions without any allowance for exports or imports. Hence Qatar, formally a developing country, has one of the highest emissions per capita as a result of processing gas for others like the UK to use. Natural gas liquefied onshore in the UK incurs a 20-30% emissions penalty, but the quarter of UK natural gas that arrives as LNG does not. Singapore incurs a similar overhead from refining, and we need not even mention that proportion of Chinese emissions that reflect its role as the rest of the world’s workshop. The lack of concern that the current Treaty structure might simply incentivise ‘carbon tourism’ in the manufacture of traded products is always surprising.
Qatar, formally a developing
country, has one of the
highest emissions per capita
as a result of processing gas
for others like the UK to use
Indeed the idea of setting global goals and then sharing them out amongst Parties is masochistic, choosing the mountaineering route of steepest ascent. It is easy to agree a global objective when you can later rescind from it if you are unhappy with your share of the burden of meeting it. Even if negotiators could be restrained from trying to win for the sake of it, their home states differ culturally in what would be considered the principles of ‘fair’ or ‘equitable’. An attempt to use markets for permits as an alternative allocation regime has proved an extraordinary failure. It has left green investment bankrupt and smoke stacks still smoking. So there the world is back to square one.
The UN Treaty: A Teetering Tower Easily Toppled?
These shortcomings are easier to see standing outside the UN system than from within. The more the UN system is tempted to climb up in front of everyone else, the more likely it is to fall. The collateral damage of such a failure is all the greater if the UN has positioned itself as the exclusive forum for collaborative action. It was the threat of the calamity of ‘no agreement’, rather than the threat of climate change itself, that got the final text at Durban through two sleepless days after the negotiations were planned to finish. But the risk of the Treaty system falling into the abyss still remains and plays easily into contrarian hands eager to give it that extra push. But why would the UN system be the only forum for such a calamitous global issue? Are there no new platforms for moving forward?
The emerging new platform is adaptation. This was at one time never mentioned because it conferred credence to a rather ugly ‘sit back and let them eat cake’ thesis promoted by those who would use their cash from selling fossil fuels to insulate themselves from a changing climate. But now, with higher values of climate sensitivity to greenhouse gas concentrations more likely, those who need to plan for adaption are creating a new perspective. At its core is a critical local issue that has to be addressed whether there is a UN or not.
action is seldom
... without seeing
‘dead in the streets’
we find it hard to
Whatever is agreed or not agreed in Treaties, money will still need to be spent on adjusting existing infrastructure – soft and hard – to new climate conditions. ‘Hope for the Best, Plan for the Worst’ might be the UK Environment Agency’s new motto when considering flood defences. Trying to get international agreement on abatements, when ‘damage’ was still only in computer model graphics, may have been worth the punt. But such early precautionary action is seldom realised in environment policy. It is not that precaution is not a natural human characteristic, it is just that without seeing ‘dead in the streets’ we find it hard to agree collectively on what to select to be precautionary about. So the adaption platform is going to be open for business.
Taxing the Brown to Give to the Green
HM Treasury’s Climate Change Strategy once asserted that there was no implication for public finances from climate change. It is easy to see why they had to say it, but objectively it is hardly a credible assessment of the ‘greatest threat to mankind’. The same inconsistency occurs in IPCC projections, where climate woe and catastrophe has no apparent effect on economic growth rates! Recent flooding in Asia and Australia has shown this separation not to be the case. But who should raise the funds to repair damage that will be soon, if not is already, uninsurable? Will not future taxpayers believe that this is less a burden to be born socially but rather, as with US Superfund to clean up hazardous waste sites in the 1970’s, a levy whose income source needed to be more focused as a matter of sheer politics?
It would be just speculation to guess how this parallel agenda would play out in different legislatures, but why not a national carbon levy on emissions as a plausible front runner? After all, Australians have given themselves both a tax to repair recent extreme weather damage and a carbon-trading scheme. Why didn’t they just co-join them and increase political legitimacy? Since this kind of levy is a local taxation that cannot wait for international harmonisation it would have to apply to imports and exports of both fossil fuels and embodied energy. The WTO has even been kind enough to provide the rules by which to carry it out, but not everyone sees this as a possibility. The UK Climate Change Committee ruled out recommending carbon ‘border duties’, on the rather implausible grounds that it would make WTO negotiations more complex – as if that were possible!
The UK Climate Change
Committee ruled out
‘border duties’, on the
rather implausible grounds
that it would make WTO
negotiations more complex
Away from UN-ery altogether there is another emerging platform where decision-takers look at the treaties from outside and not within. Faced with a world where local needs for funding adaption are looking for a deep pocket, industrial technology strategists may not feel they can take the risk of assuming that because negotiations falter their markets won’t still slip away from fossil fuel intensive products. The ups and downs of climate negations might then be second order. It is not as if the fossil fuel energy security situation sans climat was working out at all comfortably, or that cash imbalances from current energy markets played no small part in present, and future, financial crises. There is a crisis looming in energy markets across the board that technology strategists have probably already spotted. So it may be then that the real clues to the future energy landscape are behind closed doors hiding the titles of corporate research contracts.
The Durban text has a focus on 2015 for key decisions, a choice co-inciding with the end of the Millenium Development Goals, which has been defended as a year of the perfect political storm to force decisive action. That may be true, but using the same eerily appropriate metaphor even more bad weather seems likely to be piling in from other platforms. If it were not for the implied acute discomfort, it should be welcomed, because parallel actions promise to ease the UN process rather than dilute it. Even UN negotiators deserve some sleep.
Prof. David Fisk was Chief Scientist in the Department of the Environment and led the UK climate change negotiating team from 1992 – 1998. He now works in Systems Engineering in the Civil and Environmental Engineering Department at Imperial College London.