The outcome of the recent Durban climate conference represents a victory, of sorts, for a particular vision of how the community of nations might eventually gain control over greenhouse gases. But that vision is flawed, perpetuating an approach that, after more than 20 years of negotiations, has not reversed warming trends. Of particular concern is the continued insistence on a comprehensive deal negotiated by all nations through a UN process. The degree to which the meme of a "legally-binding" agreement has dominated thinking is likewise troubling.
Our October article, "Beyond the Durban Climate Talks," examined an alternative negotiating pathway -- one based on the effective model of nuclear arms control. There, specific issues were opportunistically segmented for resolution. And, in some cases, negotiators achieved progress by working in alternative fora that were not wedded to the UN ground rules, especially the ones that give every country, no matter how small, a potential veto on the results. Unfortunately, the Durban result continues the well-trod UN pathway.
The meetings saw protracted debate about how precisely to characterize the "legal" and "binding" nature of a future agreement that might emerge in 2015 from yet another "new" round of negotiations. Indeed, the supposed distinction between "political" or "voluntary" and "legally binding" agreements has dominated United Nations Framework Convention on Climate Change negotiations for years. Yet such distinctions break down upon closer examination.
No matter how formal the negotiating process and how "legal" the agreement and its ratification, in the end, compliance will depend on whether nations are committed to changing their citizens' behavior. It will also depend on the extent to which nations trust others to do the same. Even ratified, legal treaties are dependent on the continuing good will of the countries involved. "Without a world government, there is no authority able to force states to keep agreements," as UCLA arms control expert Deborah Larson has pointed out. Therefore, compliance is "a matter of trust and political commitment, not of legalities."
In the end, agreements that affect core national interests mostly work when national leaders put their political weight behind them and when that support becomes institutionalized. The Kyoto Protocol, which was supposed to be legally binding, is a case in point. Several countries originally ratified the agreement but are now pulling out. In doing so, Canada, for example, will avoid some $14 billion in penalties. Other countries ratified it but have not met their stated commitments.
The problem with continuing to press the political-legal distinction is
that it sets up expectations that cannot be met, particularly that a
ratified agreement will automatically resolve problems and put the
entire world permanently on the right path. [PARAGRAPH
BREAK] But experience shows otherwise.
Take nuclear weapons negotiations, for example. North Korea cheated on its commitments under the Nuclear Nonproliferation Treaty and, when caught, simply withdrew from the agreement and expelled international monitors. Similarly, Iran also appears to be cheating. There are other examples of countries that started down similar paths but were caught and, under pressure from larger states, returned to the straight and narrow. Moreover, in 1972, the United States and Soviet Union agreed in a formal ratified treaty to limit ballistic missile defenses, but after nearly 30 years the United States changed its mind, exercised its right to withdraw, and began to build previously prohibited defenses. This decision has plagued U.S.-Russian relations for the past decade.
Even so, nuclear weapons threaten the world less now than they did for much of the last 50 years. Despite the failures of the missile defense regime, the United States and Russia have been able to continue to reduce and limit offensive nuclear weapons by separating out issues for negotiation. If offensive nuclear weapons and the missile defense regime had been rolled together, the failure of the ABM Treaty would have automatically meant failure of the weapons reduction process, as well.