The inability of previous climate summits, notably Copenhagen in 2009, to deliver a legally binding agreement led some people to declare those negotiations a failure. But in practice, this should not be the central criterion for gauging success.
In Paris, the outcome should be judged on how far it goes towards supporting countries to scale up existing emissions reductions and stay within the agreed 2 degrees Celsius global warming limit. It is not necessary that the agreement be legally binding, as long as the outcome establishes a process for achieving the necessary scale of action.
At the Durban meeting in 2011, negotiators agreed to create “a protocol, another legal instrument or an agreed outcome with legal force” by the end of the Paris summit. This wording was deliberately chosen so as not to limit the options for how much legal force the agreement should carry.
There is now a growing recognition that the outcome will be either entirely political, or a hybrid approach consisting of a legally binding agreement relating to process and conduct (such as provisions on scaling up the mitigation pledges), but in which countries’ emissions targets themselves are non-binding.
While a comprehensive treaty may seem ideal, in practice there is no necessary connection between the legally binding nature of an international agreement and its effectiveness in producing outcomes.
Legally binding treaties tend to encourage countries to make modest commitments in order to minimize their risk of non-compliance, or else to opt out entirely. The Kyoto Protocol was internationally binding but this came at a cost of reduced participation (the United States did not ratify it) and ambition (Australia’s Kyoto target, for example, actually allowed it to increase emissions, while developing nations were not given any emissions restrictions at all).
Ultimately, political will and state action are what makes an international deal effective, so the outcome in Paris should provide a basic framework that will support countries to scale up the emission reductions that they are already making, so that we can achieve the 2 degrees Celsius goal as efficiently as possible.
Domestic Action Leads the Way
Unlike the highly prescriptive Kyoto Protocol, the approach adopted in the run-up to Paris gives countries more freedom to choose their own climate targets (or in U.N.-speak, their Intended Nationally Determined Contributions, or INDCs) and to outline how they plan to meet them.
While not legally binding, INDCs are publicly available, so countries are accountable not only to other states but to a wide range of domestic and international stakeholders.
