“The Paris agreement must be an international legally binding agreement,” a spokeswoman for the EU’s climate commissioner, Miguel Arias Cañete , told the Guardian. “The title of the agreement is yet to be decided but it will not affect its legally binding form.”
Earlier today, the French foreign minister, Laurent Fabius , had said it was obvious that any agreement in Paris would contain lawful elements, and suggested that Kerry was “confused” about the point.
Kerry told the Financial Times on Wednesday that any agreement in Paris, where world leaders meet in three weeks’ time, is “definitively not going to be a treaty” and there were “not going to be legally binding reduction targets like Kyoto”, in a reference to the world’s only previous binding climate treaty.
But the nature of the agreement’s elements is being fiercely contested in talks that officials publicly say have reached a very sensitive point. Privately, they say that countries are keeping their powder dry for the frantic last days of negotiations in which a pact is expected to be thrashed out.
“The political-level talks in Paris start on 7 December so we still have some time to sort this out,” Cañete’s spokeswoman said. “What still needs to be negotiated is what provisions within the Paris agreement would be legally binding.”
The EU would like to see a five-yearly multilateral review process or “facilitative regime” that can enforce emissions commitments, with the threat of withholding climate aid being used as a stick against developing countries that renege on their promises.
Whether the deal will be formalised as a treaty or protocol, however, remains up in the air. The Kyoto protocol was criticised by states such as the US, which withdrew from it under the George W Bush presidency, arguing that it exempted developing countries and would damage the US economy.
While keen to clinch a deal in Paris, the Obama administration is worried that a Republican-dominated US Senate could demand a deciding say over any treaty with legally binding obligations.
Some influential countries seem willing to extend Obama the benefit of the doubt. “We don’t need a treaty in Paris,” the Moroccan environment minister Hakima el Haite told a UN climate conference in Rabat last month. “We need a universal agreement in which everyone agrees and commits – and is engaged to respect commitments and contributions. That is what we are working for.”
Bob Ward, the policy director at the Grantham Research Institute on Climate Change and the Environment said that the Paris agreement was always intended as a complement to emissions pledges, rather than a body of statute.
“John Kerry, the US secretary of state, has simply restated what has been understood for a long time,” he said. “It was agreed at the United Nations climate change summit in Durban in 2011 that countries would seek a new and universal greenhouse gas reduction protocol, legal instrument or other outcome with legal force. The Paris agreement will fulfil this.”
But it remains unclear what sanctions could be imposed against developed countries that flout their obligations, or how the review process would ramp up inadequate climate pledges. Countries putting forward their climate plans in recent days include Bosnia, which anticipates a 70% increase in emissions by 2030 compared to 2010 levels, and oil-rich Saudi Arabia.
Thursday 12 November 2015 09.17 EST
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