But it was not debate on these matters that took the talks to the
edge, and it was not resolution of them that inspired the most applause.
Instead, it was an agreement to initiate "a process to develop a
protocol, another legal instrument or an outcome with legal force under
the Convention applicable to all Parties" that has led commentators to
conclude that there will be a new treaty that will legally bind all
countries to reduce emissions. Alas, that conclusion is not warranted.
The process the yielded this language was hard-fought. Developing
countries had insisted that developed ones take new commitments to cut
emissions under the Kyoto Protocol. Most rejected that out of hand.
Europe, though, accepted in principle, but with a condition: the entire
conference would need to agree to seek a legally binding deal covering
all emitters by 2015, with the aim of bringing that deal into force by
2020. This ultimate demand - rejected by India and China, and met
without enthusiasm by the United States - was what nearly brought the
The precise dynamics that unfolded in the final days are still
unclear. In the end, though, the talks came down to a simple choice.
Europe insisted on language that would commit all countries "to launch a
process to develop a protocol or another legal instrument under the
Convention applicable to all Parties". India strenuously insisted that
"a legal outcome" be included as a third option. It is not clear exactly
where China or United States, which were both fine with including
"legal option" but otherwise largely sat out the final public fight,
would have drawn the line if forced. Everyone ultimately compromised: an
"outcome with legal force", rather than a "legal outcome", was added as
the third option.
It is difficult to avoid concluding that the Europeans ultimately
blinked, though you wouldn't get that from their spin or from the media
coverage. The New York Times, adopting a similar interpretation to most other outlets, reported
that the deal foresees "a future treaty that would require all
countries to reduce emissions that contribute to global warming". Alas,
there's nothing much like that in the text.
The first problem is with the word "treaty", which appears nowhere in
the agreement. Indeed some will insist that a mere set of formal
decisions by the parties - like, say, the Cancun Agreements of last year
- ought to qualify as an "outcome with legal force"; they may not have
as much legal force as some would like, but surely one can argue that they have some.
Perhaps this traps countries like China and India a bit: they can argue
out of seeking a new instrument only by asserting that COP decisions
have some legal weight. But one thing is clear: there is no commitment
to seek a new treaty or protocol.
It's also worth noting that, contrary to most media reports, the
text's requirement for "legal force" is broad, and does not necessarily
need to apply to emissions cuts. It could, for example, be read to
require that transparency provisions, rather than emissions cuts, have
legal force. I would not be surprised to see the United States push such