EnvironmentSmith School of Enterprise and the Environment19Chapter 4: Learning from the Negotiation ProcessChapter 4Learning from the Negotiation ProcessNegotiations ForumThe failure of the Copenhagen negotiations to reach agreement threw doubt on the ability of the UNFCCC process to produce viable results; but the ability of COP16 in Cancun to salvage an Agreement has restored hopes. However, suggestions that new forums for climate change debate are necessary need to be seriously considered. The G20, G8 and Major Economies Forum (MEF) are possible forums for climate change progress. These smaller meetings do have potential. The G8+5 grouping played a very important role in raising the profile of climate change with key heads of state and with the public. The G20 countries make up around 75 per cent of global emissions; any deal made in this forum will clearly be of enormous significance to potential reductions. Furthermore, nations have a tendency to follow trends, and the agreement of such a large section of the global community is likely therefore to lead to other nations following suit. There is debate about whether agreements made within smaller groups of countries such as the G20 undermine the multilateral regime [24]. The UNFCCC COP is the only forum in which the very poor developing nations can be heard and as such the poorer developing nations see the UN as the only venue open to them to express their views. Such input from least developed countries has already stimulated progress in some areas in the climate negotiations; these nations have been instrumental in ensuring that adaptation is properly considered. As such for both substantive and legitimacy reasons the process by which agreements are reached is very important. Ghosh [24] argues that if decisions are made outside the UNFCCC process there are likely to be consequences for the coherence of the regime.The main block to a global legally-binding agreement through the UN is that neither the US nor China are currently willing to accept binding targets that have been internationally defined. Given that the G20 or the MEF cannot produce legally binding agreements, progress could be made with these nations in other aspects of climate change policy. It must be accepted that negotiations in smaller groups could lead to much more substantive outcomes in reaching the most pressing goal - immediate GHG emissions reductions - if the groups don't include obstructionist countries such as OPEC (Organisation of the Petroleum Exporting Countries) and the ALBA (Bolivarian Alliance for the Americas) groupings. While the equal voting system and the need for consensus make the COP an excellent forum for many countries, particularly developing countries, where their voices are heard and for promoting equality, the need for consensus also makes it a problematic forum for dealing with difficult, complex problems like burden-sharing. The pursuit of consensus can, in practise, lead to stagnation [17]. Smaller groups are very useful in getting details of an agreement in place. This is not to argue that the UNFCCC has no role to play in the climate negotiations. It is likely, however, that over the coming years it will be used to verify and legitimise actions and decisions taken in these other forums, and to act as a sounding board for all nations.

20Smith School of Enterprise and the EnvironmentSmith Legal FormIn the run-up to Copenhagen there was a great deal of pressure for the conference to produce a legally binding agreement. Copenhagen was viewed to be a failure by many largely due to its inability to deliver on this. At Cancun, there was very little build up in this respect and a legally-binding deal to replace or continue the Kyoto Protocol was neither expected nor achieved. This outcome has been postponed until the next COP meeting in South Africa. However, postponing decisions on this will not be an option again given that the first commitment period of the Kyoto Protocol ends in 2012.Is a legally binding document essential? From the view point of developing countries, a legally binding agreement is seen as an assurance that the developed world will meet its targets. Furthermore, if a legally binding agreement is not agreed then the developed world will effectively be weakening its commitments to reducing emissions, while, at the same time, developing countries are being required to do more. Thus, the negotiations appear to some to be moving away from the 'differentiated responsibilities' between countries, an aspect of the climate change regime that is considered extremely important by the developing world [25]. In addition, a global deal is needed in order to prevent leakages of carbon from parts of the world which do not have carbon emission limits [9]. The main hindrance to a global, legally-binding agreement is that China seems unwilling to accept a binding agreement, and the inability of the US to progress action through its Senate and Congress and its insistence on "symmetry" between developed and developing countries means that it is unwilling to accept a legally-binding agreement. Meanwhile, other developed countries are unwilling to sign up to an agreement that the US is not a part of. Japan in particular at the Cancun negotiations explicitly stated that it would not accept a second commitment period of the Kyoto Protocol, displaying a clear preference for a single instrument. This single instrument was initially suggested with the object of bringing the US on board, and other developed countries have expressed a preference for the replacement of the Kyoto Protocol by a single instrument that captures the market-friendly elements of the Accord. In deference to the US, the single instrument would have a flexible approach that is tailored to national circumstance and allows for domestic political constraints. However, following the strong statements from Japan on this matter, developing countries responded equally strongly in signalling their preference for the continuation of the Kyoto Protocol. Developing countries oppose the single instrument as they fear that the new instrument would alter the balance of responsibilities in the climate regime [25]. Given the difficulties within the US in joining any internationally defined binding agreement, it is questionable as to whether these compromises in the single instrument will make a difference to its participation. Another important, if not critical, consideration is the inability of the UN to enforce or punish nations that may break any agreement. Getting all the UNFCCC countries to join a climate treaty whereby they agree to limit their emission would be an important achievement, but it does not mean that nations will keep to it. The reluctance of nations to join a legally-binding agreement unless they know that they can meet its stipulations does signal that the concept is taken seriously. But in order to ensure that countries do keep to their targets, it is probably necessary to have some form of enforcement mechanism. At present, at least one nation is expected to be unable to meet its Kyoto target. Greece is officially recognised by the independent Compliance Committee as non-compliant with national system requirements and Canada is also set to be non-compliant with its emissions targets (though it could buy itself into compliance by 2015). That said, enforcement mechanisms such as trade measures may act as a further deterrent to the US, China and India joining in with an agreement. Sanctions may prove to be economically inefficient and discriminatory against poorer countries [26]. It has been suggested that the use of social sanctions may well be preferable [27]. One feasible enforcement mechanism is a 'name and shame' process linked to pledge and review and independent monitoring and verification. At present, focusing on forcing through a legally binding agreement has proven to be a hindrance to progress Chapter 4Chapter