The Copenhagen conference that ended this last weekend exceeded expectations and was a definite success, especially by comparison with last year's Copenhagen Accord. That agreement really only papered over profound and sharp differences, which threatened to wreck the conference and derail the process of international diplomacy being carried out pursuant to the Rio Framework Convention on Climate Change of 1992 and the 1997 Kyoto Protocol.
The Cancun agreements were adopted almost unanimously, with just Bolivia rejecting them. Besides containing some important specifics, they may also provide a vehicle for further undertakings that do not depend on treaty making and treaty ratification. Though such agreements do not have the full gravity of treaties, they are generally considered binding on the states that sign them.*
The two important umbrella agreements adopted at Cancun concern long term cooperation and Kyoto followup. The Kyoto document addresses issues raised by the ending in 2012 of the first "commitment period" in which advanced industrial countries were to make scheduled cuts in greenhouse gas emissions, and the impending second commitment period, which is to run from 2012 to 2020. It is a compact two-page document that declares global warming to be an urgent problem, as described in the 2007Â IPCC assessment report, and "urges" the industrial countries to make more aggressive efforts to curtail it than they have made so far. It calls on the world's climate diplomats to see to it in the coming year and at the next climate conference, to be held in Durban, South Africa, that there is no gap between the first and second commitment periods.
In signing onto that statement, the United States seems to be conceding implicitly that it needs to do more than it has promised to do so far to reduce its carbon emissions. Notably, the Japanese government, which came to Cancun wanting to ditch the Kyoto process, was dissuaded from that position by phone calls from the leaders of the UK, Germany, and Mexico. (The Mexican foreign minister, Patricia Espinosa, is credited especially with having worked skillfully to make Cancun a relative success.) The Kyoto Protocol to the Rio treaty took force in 2005, and 191 of the 194 parties to the treaty have ratified the protocol; the United States is one of three that have not.
The second Cancun statement, on long-term cooperation, calls on the developing countries to report regularly and verifiably their emissions, as sought by the United States, starting at Copenhagen. The document outlines and specifies how an institution will be established to channel climate aid from the rich countries to the poor--the Green Climate Fund--and, just as importantly for the Third World, specifies how countries can be rewarded for deforestation efforts.
The document on long-term cooperation puts the emphasis equally on greenhouse gas reduction and adaptation to climate change, an important provision for island countries and deltaic regions that are acutely and imminently threatened by global warming. But at the same time it "agrees" that parties should cooperate in achieving the peaking of global and national greenhouse gas emissions "as soon as possible," bearing in mind that "the time frame for peaking will be longer in developing countries." This provision implicitly points a finger at China, which refused to make a peaking commitment at Copenhagen. Like the United States, in signing onto the document, China implicitly concedes that it soon will be expected to do more than it has been willing to do in the past.
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* According to the constitutional authority Louis Henkin (Foreign Affairs and the Constitution, Norton, 1972, pp. 184-7), the United States had entered at the time of that writing into thousands or even tens of thousands of executive agreements with foreign countries. While some held that such agreements could not be truly executed without action of Congress, there is no clear consensus on this point. In an important test case, which involved recognition of the Soviet Union by the Roosevelt Administration and the associated Litvinov Agreement, New York State challenged a provision enabling the Federal government to take control of assets held in New York banks to which the USSR laid claim; the Supreme Court held that with respect to "international negotiations and compacts . . . state lines disappear. . . . As to such purposes, the State of New York does not exist." Henkin attributes such reasoning mainly to the primacy the constitution affords the president in the conduct of international relations: If the president agrees to something in that realm, prima facie, it holds.
