A tricky issue — finding the right phrase to cover a seemingly familiar one

By Lisa Friedman | 12/03/2015 08:55 AM EST

LE BOURGET, France — In public, climate negotiators are fighting over how "legally binding" a U.N. climate agreement will be. In private, they’re fighting over the words "shall implement."

Four days into global negotiations here, the battle over the legal bindingness of an eventual accord continues to rage on, while also sparking heavy public confusion. That, analysts say, is because so many people are using the same phrase but loading it with different meanings.

"Oscar Wilde said the British and the Americans are separated by a common language, and I think that’s our problem," said Paul Bledsoe, a former energy and climate adviser in the Clinton administration.


Linguistics, he argued, is partially to blame. After all, Bledsoe noted, many E.U. agreements declare themselves "legal" but in fact leave most discretion up to member countries.

Others say countries are being purposely hazy, playing fast and loose with language.

"Everybody is more or less stuck to the phrase ‘legally binding.’ The question is, legally bound to do what?" said Seychelles Ambassador Ronny Jumeau.

The two weeks of talks being held here are expected to culminate in a global deal. At the heart of it will be the targets, or intended nationally determined contributions (INDCs), that more than 180 nations have submitted to the United Nations. Just how those INDCs are described — and whether they make the leap from contribution to commitment in a final agreement — will make all the difference.

The United States claims it wants a legally binding agreement. Its interpretation, though, is far different from those of Europe or small island nations.

The U.S. version

According to State Department climate envoy Todd Stern, the United States is willing to be obligated under law to report, monitor and verify that it is working to meet its target of cutting economywide greenhouse gas emissions 26 to 28 percent below 2005 levels by 2025.

What it doesn’t want is to be held to account for actually meeting that pledge.

That, legal experts say, is because promising to meet "targets and timetables" would trigger a need for Senate ratification. Meanwhile, other big countries, like China and India, similarly don’t want to be be held liable to an outside enforcement body if they fail to meet their targets.

The European Union’s head of delegation, Elina Bardram, said yesterday that there has been "no concession from the E.U." in its insistence that those targets be enforced by an outside body. "We strongly favor legally binding mitigation targets," she said.

Privately, though, European and American diplomats as well as those following the discussion say the debate has moved to an even more complicated place.

According to sources close to the discussions, one option is language declaring that countries "shall implement" policies to reach the targets.

Even that, though, may be going a step too far for the Obama administration, which is trying to build wiggle room into that phrasing.

Seeking the ‘right kind of language’

Dan Bodansky, a law professor at Arizona State University and an expert in climate negotiations, said the one issue for the administration may be that it is not certain that the United States can implement its target without additional legislation. "So since the U.S. can’t be sure whether Congress will enact additional legislation, it can’t commit to doing so," he said.

Meanwhile, Bodansky added, it’s not certain that the president has the constitutional authority to adopt an agreement that includes a "substantive obligation to implement" a target without Senate approval. "So long as the agreement contains only procedural obligations … then arguably, the president would be able to join the agreement on his own," he said.

Asked yesterday why the United States objects to promising to pursue policies toward the Paris goal, Stern equivocated.

"It goes to the question of whether targets are going to be binding," he said. "We are quite willing and have actually done the job of identifying policies that underpin our target. We’ve made it clear we would expect to continue to do that and would be happy to have the right kind of language to make that clear."

Bledsoe argued that at the end of the day what matters most is that emissions reductions be made mandatory in national law by all countries.

"That’s where legally binding involves greater certainty of enforcement, and even fines for noncompliance," he said. "In essence, the strength of the Paris agreement will rest on the totality not just of national commitments, but the laws and enforcement in each country, not on any grand notion of ‘international law’ or ‘legally binding’ status."