Why Obama’s fine words have fallen too late

Posted by: Frances Lawson

Of the various COP21 headlines that have hit the media during the first few days of the conference, one of the most celebrated was President Obama’s concession that “some” parts of the text should “have legal force”.  With the US a longstanding opponent of any binding commitments under the UNFCCC given the domestic legal position, the President’s remarks have been widely heralded as a watershed.

Perhaps too much so. Although undoubtedly welcome, his words do not change a stark reality – none of the options being negotiated at COP21 relating to the new Agreement’s enforceability provide for it, or any part of it, to have real legal force.  The title of Article 11 itself – “facilitating implementation and compliance” is indicative of the “softly softly” approaches to be taken thereunder and reflects the absence of “bindingness” in any of the earlier provisions. The different options in the text can be summarised as follows:

1. An implementation and/or compliance committee (or mechanism) to facilitate/incentivise/promote/enforce Parties’ commitments.

2. A differentiated, two-tier system whereby developed country parties are subject to an “enforcement” branch that can “make recommendations”, make a declaration of non-compliance, request a compliance action plan or take other unspecified actions. Developing country parties, meanwhile, would be the subject of a “facilitative” branch to help them to fulfil their pledges.

Even with the shift in the US position, the shape of the text is such that there is very little likelihood of the final Agreement having anything that a lawyer would call “legal force”. Unfortunately, the lack of appetite for “legal force”, or at least, universal force applicable to all, is rooted in far more than just United States domestic politics, and reflects a wider reluctance to be “bound” to climate commitments for fear of damaging economic interests.

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