Paris: binding or non-binding?

In recent days some confusion (see here and here) seems to have arisen about the nature of the proposed agreement to be reached in Paris (a good summary of arguments can be found over at Carbonbrief). One feature is that it will be determined by national pledges for future GHG reductions, but that it should be binding in some ways, too. When it comes to find words to describe the nature of the agreement, 'treaty' seems to be problematic, as it entails different meanings in different places. US foreign secretary Kerry said that the Paris summit will not lead to a treaty (which is binding to the signatories). 

EU voices confirmed the opposite. UN climate chief Figueres says that they coined the word 'bindingness' in order to signal that 'we’re understanding that there is a much more nuanced consideration of legal nature of the different components of the [Paris] text.' 

Why so much caution? The problem lies with the US Senate which is Republican dominated and is unlikely to approve of a treaty that would commit the US to reduce carbon emissions. Remember the Byrd Hagel resolution just before Kyoto in 1997? It was adopted unanimously, stating that

the United States should not be a signatory to any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, at negotiations in Kyoto in December 1997, or thereafter, which would--

(A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period, or

(B) would result in serious harm to the economy of the United States; and

(2) any such protocol or other agreement which would require the advice and consent of the Senate to ratification should be accompanied by a detailed explanation of any legislation or regulatory actions that may be required to implement the protocol or other agreement and should also be accompanied by an analysis of the detailed financial costs and other impacts on the economy of the United States which would be incurred by the implementation of the protocol or other agreement.

Arguably, one major concern has been removed for the new round of negotiations: developing countries are now included in the deal. Still, Senators could argue that a treaty would result in serious economic harm to the US. Obama and Kerry thus want to steer clear from possible obstacles in Senate by calling the treaty 'not a treaty'.

Carbonbrief comments:

It is hard to see a credible deal from Paris emerging without US support. The US Senate would not ratify a treaty, but the US can still sign up to Paris under an “executive agreement” with the sole authority of the president. In terms of international law, this is equivalent to US ratification.

However,

The scope of Obama’s powers to sign an international agreement is unclear, however, since it derives from legal precedent rather than written statute. That’s why there is argument around whether the US can accept legally-binding targets, or an obligation to implement its pledge.

There is a legal precedent of Obama using the power of 'executive order' and some think this would be a possibility. But not everyone agrees and Carbonbrief states:

The scope of Obama’s powers to sign an international agreement is unclear, however, since it derives from legal precedent rather than written statute. That’s why there is argument around whether the US can accept legally-binding targets, or an obligation to implement its pledge.

Two further aspects are important to remember:

One is that several countries are keen that Paris will send a 'credible signal to the world that governments are serious about fighting climate change.'

As Werner explained to the reporter of the Stuttgarter Zeitung, the symbolic dimension of the negotiations and their outcome is very important. Symbolic does not mean 'empty' or 'meaningless', but indicates a form of self-commitment. Once pledges are in place, people can come back to them and ask: what happened?

Secondly, Christiana Figueres said:

History shows that international legally binding compliance mechanisms [like under the Kyoto Protocol] are not necessarily a guarantee of compliance…I would warn us against simplistic thinking that internationally legally binding means a guarantee.

The test of any policy is, of course, its implementation. Even a full-blown Paris treaty, commanding the world to reduce GHG emissions by 80% by 2050, could easily fail.

We can envisage a range of constellations which would halt material progress in terms of GHG emission reductions:

1 no agreement is reached;
2 an agreement is reached which is based on national pledges but not enshrined in a binding treaty;
3 an agreement is reached which is based on national pledges that is enshrined in a binding treaty;
4 an agreement is reached which (no matter what the level of ambition or legal status) fails to be implemented on international and/or national levels.

The spat between the EU and US focuses on the technicality that some US senators might misconstrue the meaning of the word treaty, implying that it needs to be ratified in Senate. This potential difficulty does not say much about the material progress in terms of decarbonization, as we cold still imagine other avenues that are available without a global treaty. But it would dampen the optimism if the US, again, would refuse to co-operate in an international effort to curb emissions.