Turning politically binding commitments into legally binding ones

Any deal in Copenhagen, no matter its level of detail, can only be a politically binding one. Would that really matter?

Sergio Abranches

German Chancellor Angela Merkel explained, yesterday, what her country understands as a politically binding deal to be cut in Copenhagen, Reuters reports :

“We clearly must reach a binding agreement next year and if possible in the first half of the year, one where it will be internationally checked as to whether individual countries stick to their obligations,” while “the political commitment to that should and must come in Copenhagen.”

French president Nicolas Sarkozy has also tried to convey what he sees as a successful deal:

“We want success at Copenhagen and we have set a number of red lines. Copenhagen should outline the numbers and the precise objectives.”

The current political discussion on how to differentiate a “legally binding” from a “politically binding” deal seems now to be a bit out of focus. There are few legally binding means open to a global climate deal, and no effetive enforcement mechanisms.

Look at the Kyoto Protocol. Is it legally binding? If so, how to deal with countries that fail to meet its commitments? If it is not legally, but only politically binding, then, why are we debating for so long the need for a new Protocol?

The climate deal, under the existing institutional setting for global governance, can only be a political commitment. What would give us hope that a new deal will be more biding and lead to more credible commitments than the previous one?

I can think of basically three factors.

The first one is that we have a more evolved global polity today, than in the early 1990′s, when the Kyoto Protocol was drafted. A global polity that has increasing connections to the domestic polities of even the less democratic pivotal parties to the deal such as China.

The second one is that in most of the countries civil societies and corporations have already gained a more advanced understanding of climate change risk than governments. The most noticeable exception being, perhaps, the US, where the polls still show a relatively weak national consensus about the dangers and urgency regarding global warming. I think it is no more than a distributional problem. In states, like California, where carbon emissions regulations are in force and rather restrictive, consensus is greater than, say, in the “coal belt” states.

It is very likely that the majority within domestic polities already favors GHG emissions reductions, even in the US. However this majority, in several places, still reflects numerous diffuse, loose interests. The opposition to a regime that regulates carbon emissions represents very focused interests, tied to high carbon sectors of economy and society. These groups have more political connections, and better lobbying resources. That’s why in some countries civil society and corporations subjected to global competition are more prepared to support carbon restrictive regulation, than parliaments.

The third factor is that  the media is improving, globally, their understanding of the science and facts of global climate change. Reporting on climate change issues is getting more space and relevance everywhere, while the so-called climate skepticism is loosing ground. Watchdogs are spreading through the digital world and reaching audiences aloof to the traditional media.

Whatever is agreed in Copenhagen will be politically binding, especially if chiefs of governments and states go there to give strength to the commitments.

The best way to make these commitments legally binding is to write them into the domestic climate change legislation.

In Brazil, a movement led by former Environment Minister, senator Marina Silva, wants to insert  the quantitative targets recently announced by the government into a climate change bill, now being discussed by the Senate. The senator also correctly wants to include a command to the government, to update the inventory of emissions every year, so that it can be used to transparently monitor and verify the quantified commitments. This would turn a politically binding international commitment into a legally binding domestic one.