Climate Change Issues

Climate Change in 2013 (Continuation)

United States views on international law [1] in relation to Climate Change: Our task now is to fashion a new agreement that will be ambitious, effective and durable. And the only way to do that is to make it broadly inclusive, sensitive to the needs and constraints of parties with a wide range of national circumstances and capabilities, and designed to promote increasingly robust action.

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Let me talk about certain core elements of such an agreement. First, it will need a supple architecture that integrates flexibility with strength. Some see flexibility as a signal of weakness, but I think just the opposite. We know the agreement must be ambitious; to be ambitious it will have to be inclusive; and to be inclusive it will have to balance the needs and circumstances of a broad range of countries. For such an agreement, a rigid approach is the enemy.

Development

We see flexibility in the new agreement in at least three ways. First, rather than negotiated targets and timetables, we support a structure of nationally determined mitigation commitments, which allow countries to “self-differentiate” by determining the right kind and level of commitment, consistent with their own circumstances and capabilities. We would complement that structure with ideas meant to promote ambition—a consultative or assessment period between an initial and final commitment in which all Parties as well as civil society and analytic bodies would have an opportunity to review and comment on proposed commitments; “clarity” requirements (or expectations) so that commitments can be transparently understood by others; and a requirement (or invitation) to countries to include a short explanation of why they believe their proposed commitment is fair and adequate. This nationally determined structure will only work if countries understand that all have to do their part; that strong action is a favor we do ourselves because we are all profoundly vulnerable to climate change; and that the world will be watching how we measure up.

Details

Second, we need to focus much more on the real power of creating norms and expectations as distinguished from rigid rules. There is certainly a role for rules, standards and obligations in this agreement. But an agreement that is animated by the progressive development of norms and expectations rather than by the hard edge of law, compliance and penalty has a much better chance of working, being effective and building inclusive, real world ambition.

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Third, we will need to be creative and flexible as we think about the legal character of the agreement. Again, rigidity is a potential roadblock. We all agreed in Durban to develop a new legal agreement, but left open the precise ways in which it would be legal; recall the famous phrase “protocol, another legal instrument, or an agreed outcome with legal force.” Parties are discussing a variety of ideas with regard to which elements of a new agreement would be legally binding and the role that both international and domestic bindingness might play. This discussion is still in its early stages, and I don't have much to add here. What I would say, though, is to keep our eyes on the prize of creating an ambitious, effective and durable agreement. Insisting that only one way can work, such as an agreement that is internationally legally binding in all respects, could put that prize out of reach.

Resources

Notes

1. Climate Change in the Digest of United States Practice in International Law