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

EnvironmentSmith School of Enterprise and the Environment21in tackling climate change. At Cancun, the issue was essentially put aside in the final agreements and decisions on it postponed for a further year. This did allow advances to be made in other areas that were introduced in the Copenhagen Accord. It remains unlikely that anything other than a severely weakened legally binding agreement would be signed by the major emitters of CO2. The future of the Kyoto Protocol does not look bright [6].In order to make rapid and realistic progress, focus needs to shift from form to function. Concentrating on creating a legally binding document will not produce the desired action. Instead, negotiations should focus on areas where progress has been made. For example, real progress was made in the areas of deforestation, technology, finance and adaptation. Concentrating and solidifying agreement on these areas will be considerably more productive. In addition, the pledge and review process provides a critically important new pathway for immediate action.Pledge-and-ReviewThe pledge-and-review process adopted by the Copenhagen Accord marked a move towards national-based action in mitigating and adapting to climate change. This approach was cemented via the integration of the voluntary commitments into the UNFCCC process at Cancun. This shift away from the top-down action has stimulated discussion about the relative merits of top-down versus bottom-up approaches [28]. In reality, both bottom-up and top-down policies are compatible and necessary. In developed and emerging countries the bottom-up approach is the only feasible way of ensuring participation. The pledge-and-review process marks a useful way to stimulate national action, and enables China and the US to participate. While the 'review' part of the pledge-and-review system was largely absent, and in fact was steered away from by the BASIC countries at Copenhagen, a large degree of transparency is embedded in the system. At Cancun progress was made in the area of monitoring and verification. Credit for this goes largely to the Indian Environment Minister. The publication of the pledges raises the level of ambition in the commitments as well as increasing pressure on all nations to meet them [29]. It is hoped that national commitments will therefore be met. A registry for developing countries to set out NAMAs for support by developed countries has also been set out. This is a useful tool as, at present, developed countries have a tendency to hold back finance due to scepticism over the end use of such money [30]. In this forum, developing countries can set out specific plans for action so that investors know where the money will be going, and this could stimulate increased funding. It also challenges developed countries using this as a line of defence over lack of financial support. Temperature and Emissions TargetsAn important step was made with the agreement on the target to limit anthropogenic warming to 2 ?C. This is a good 'goal'. One of us has pointed out on many occasions, since 2005, that there is a high degree of uncertainty in translating a specific limitation on an asymptotic figure for temperature rise to a stabilisation target figure for GHG emissions. For example, if the asymptote for GHG atmospheric levels is 450 ppm CO2 equivalent, the best available science produces a rather broad probability distribution function [31] peaking at 2.1 ?C but with a so-called 'fat tail' to high temperatures. Even at this low level of GHGs, there is a 20 per cent probability - based on current science - that the ultimate temperature increase would be more than 3 ?C. The scientific message is clear: the risk of a dangerously high temperature at any level above the present (387 ppm CO2; approximately 420 ppm CO2 equivalent) is relatively high. GHG emissions must be reduced, in order to manage this risk downward at the fastest rate that can be achieved. Paths to maintain a GHG asymptote below 450 ppm CO2 equivalent were developed some years ago by the UK Government and one path to 550 CO2 equivalent was published in the UK Government's Stern Report [32]. 4Chapter 4Chapter 4: Learning from the Negotiation Process