When Is a Deal Not a Deal: COP 17 and Climate Change

The diplomatic community is publicly patting itself on the back for the "deal" in Durban. The problem is, as any first year American law student could tell you, there is no "deal." What there is is a promise to make a promise.
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The diplomatic community is publicly patting itself on the back for the "deal" in Durban.

"We have made history," said South African Foreign Minister Maite Nkoana-Mashabane, who chaired the talks. Britain's Energy and Climate Secretary Chris Huhne said the result was "a great success for European diplomacy."

U.S. climate envoy Todd Stern said Washington was satisfied with the outcome: "We got the kind of symmetry that we had been focused on since the beginning of the Obama administration. This had all the elements that we were looking for."

Reading and listening to these statements would lead us to conclude that, finally, a climate deal had been agreed upon. However, let us not confuse effort with results.

The problem is, as any first year American law student could tell you, there is no "deal." What there is is a promise to make a promise. Essentially, the climate change negotiators have agreed to a framework on how they are going make a deal. But no one is committed to a final, binding outcome. In other words, as is usual in these climate conferences, a fig leaf covers failure.

UN climate chief Christiana Figueres acknowledged the final wording on the legal form a future deal was ambiguous: "What that means has yet to be decided."

If there is any significance at all to the Durban Platform, as it is euphemistically being called, it is that some of the assumptions of the Kyoto Protocol are being abandoned. Under the Kyoto Protocol, the so-called developing countries were given a free pass from curbing carbon emissions. The developing countries included South Korea, Saudi Arabia, China and India, which are now responsible for 58% of global greenhouse gas emissions. Of course, they do not want to slow their growing economies with environmental controls. Hydrocarbon is still the cheapest, most plentiful energy source on the planet, and there is very little economic incentive to abandon it.

The US always opposed Kyoto because of the exclusion of developing countries from emissions limits. So the "deal" is really a concession in a long-running negotiation, not an agreement. The concession is that all countries, developed or not, will agree to negotiate a treaty by 2015 that covers everyone. Essentially, 17 years have been spent just getting the world's nations to agree that they should all agree.

The real negotiations, if they occur, have to result in an agreement on three issues. First, what will be the limits of greenhouse gas emissions? This is a complex problem that could be measured and quantified in innumerable ways. Count on this issue being fractious and challenging. Second, what will be the accountability provisions for failing to meet legally mandated limits? Without enforceability and penalties, there will be no agreement. Instead, there will be a document that is aspirational and toothless. Finally, there has to be a compensation scheme for helping island and littoral nations cope with the inevitable flooding and extreme storms that are coming our way. How the funding occurs, how much will be contributed, who will fund it, and how the fund will be administered (including transparency, financial controls, and accountability) is worthy of at least another 17 years of international diplomatic negotiation.

The upshot is that, once again, the international diplomatic community has failed us. Their flawed processes, their entrenched view of how to do things, their inability to commit to hard core negotiations, the lack of political will, and the sheer magnitude of the problem all have contributed to the failure. The US is playing no significant leadership role because of domestic political constraints. Protecting ourselves from the unpredictable but surely devastating effects of global warming will be left to regional governments, private enterprise, and collective individual efforts. We will all suffer if we rely on and wait for the international diplomatic community to get its act together on an effective, tough, practical, enforceable climate treaty.

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