The co-chairmen of UN negotiations on the forthcoming Paris climate treaty released what they called a “first draft,” which they said will serve as “a concise basis for negotiations for the next negotiating sessions from October 19-23 in Bonn. The new twenty-page draft is a slimmed down version of much longer drafts released in February and July.
As Andrew Revkin points out on his New York Times blog, the new draft is a lot shorter, but it is still riddled with brackets that enclose text that has been suggested during the negotiations by one or more countries, but has not been agreed on. Although the Durban Platform for Enhanced Action, as the negotiations are officially titled, was adopted in 2011, the draft text still doesn’t answer a key question: whether the new agreement is going to be “a protocol, another legal instrument or an agreed outcome with legal force” under the UN Framework Convention on Climate Change (UNFCCC).
It is widely understood that the inability or unwillingness of the negotiators to decide what form the agreement will take is due to the conflict between the desire to have a legally-binding agreement (that is, a treaty like the UNFCCC and its Kyoto Protocol) and the need to pretend that it is not a treaty so that it is not subject to ratification by the U.S. Senate. The Kyoto Protocol was negotiated by the Clinton Administration in 1997 and signed by President Clinton in 1998, but was never submitted to the Senate because ratification would not have come close to the two-thirds super-majority necessary for ratification. At this point, the Paris Agreement looks just as unratifiable as Kyoto.
My view is that they can call it whatever they want, but the draft text makes clear that it’s a treaty; and therefore the Senate would have to ratify it for the U.S. to become a party. For those interested in the details of why the Paris Agreement will undoubtedly be a treaty, I suggest looking especially at Articles 16, 18-22, and 25 of the draft text prepared by the co-chairmen of the Ad Hoc Working Group, Daniel Reifsnyder of the United States and Ahmed Djoghalf of Algeria.
This piece was originally published in the Cooler Heads Digest. You may subscribe to the weekly digest at GlobalWarming.org