Late-night negotiations at the climate talks in Durban resulted in 194 entities – including the European Union, the United States, China and India – agreeing to develop a global treaty by 2015, which will cut emissions by 2020.

One of the most important lines to come out of Durban is that the future global plan will be “a protocol, a legal instrument or an agreed outcome with legal force”. In other words, it’ll be a legally binding international agreement.

But how does one enforce an international agreement? It’s more than 20 years since the Kyoto Protocol was first implemented, how far have we come with implementing and policing these global agreements?

Crikey spoke to Andrew Macintosh, associate director for the ANU centre for climate law and policy, to find out …

How legally binding will this new agreement be?

Right now it’s nothing but a mandate to reach an agreement, Macintosh tells Crikey. “We really don’t know a hell of a lot. If you want to be cynic you’d look back on the Bali action plan from 2008 and it bears some similarities to what was agreed,” he said.

But it’s not all bad news. “The biggest challenge is that we haven’t been able to get a situation where all significant parties were agreeing that reducing emissions and signing up to a deal is in their interests. With the outcome from yesterday it appears we do have a situation where all the parties can see that it’s in our joint interest,” explained Macintosh.

Do legally binding international agreements actually work?

There’s definitely been historical precedence for international agreements working effectively, Macintosh tells Crikey. “The World Trade Organisation, for all its failings, is a very successful agreement, as was the Montreal Protocol. The United Nations Convention on the Law of the Sea (UNCLOS) is a very successful treaty.”

What is done to ensure such international agreements are upheld?

“A lot of people ask about policing and that countries can just walk away and that’s true but the whole idea is to reach a agreement that is in everyone’s interests. That’s the thing that binds it together,” explains Macintosh.

Many agreements have compliance or conciliation and arbitration mechanisms and Macintosh cites the WTO case from earlier this year when Australia tried to fight — and lost — against New Zealand apple imports coming into Australia. “Those sort of mechanisms work in another arenas. In a theoretical perspective, there’s no reason it can’t work here [with the Durban plan],” said Macintosh.

What happens if political leadership changes in coming years — like the US presidential election next year?

“Parties can still walk away, there’s nothing in place to stop them,” explained Macintosh. He also noted that the Australian federal opposition hasn’t yet publicly agreed to support the Durban deal but that it had agreed to examine the plan. “There’s nothing binding our own country from walking away from the whole thing,” noted Macintosh.

What were the consequences for Canada, which admitted that it hasn’t met with all the Kyoto Protocol aims that it had agreed to?

Not much. Rather than face consequences, Canada is refusing to sign up for a second commitment period of the Kyoto protocol.

“If they had there would have been penalty provisions and this is a demonstration of how hard it is to have meaningful compliance mechanisms in international law,” said Macintosh. “In some respect the existence of the compliance mechanisms is contributing to Canada’s unwillingness to play in the second commitment period. ”

Why bother having a binding agreement if people can easily get out of it and there’s little repercussion if they do?

A global climate plan is about creating an interconnected system where countries link their domestic policies to international agreements and their public and private sectors invest in its associated policies.

“We’ve seen that in relation to the Kyoto Protocol,” said Macintosh. “Countries have become attached to things like the Clean Development Mechanism, they’ve become attached to the reporting processes. They’ve invested a lot in them by government and even the private sector in complying with the international regime and having these regimes attached to it.”

This makes it harder for countries to just walk away. “If you compare that with really glib pledge and review style agreement that some countries were talking about, you wouldn’t have the same level of interconnectedness between the parties, you wouldn’t have the same investment in policies that are dependent on an international regime.”

The whole idea is to negotiate a plan that all countries recognise is in their joint interests and that keeps people involved, says Macintosh.

“By having a binding agreement you’ll have creation of the interconnected system plus the moral responsibility that comes with international law,” argued Macintosh. “But there’s no guarantee that countries won’t walk away, there’s always that risk. The trick is making sure that compliance and participation is in their interest.”

Peter Fray

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