Today I am going to come back to an issue I raised at the last round of Bonn talks just over six weeks ago - the legal form of the new agreement.

Generally, not much happens on the first couple of days of these meetings as Governments spend time posturing and reading formal statements. So while they do that, let’s get started on better understanding the really dry stuff…

Some countries like Brazil want the Kyoto Protocol to be amended with new targets for countries like Australia and “decisions” for developing countries and the USA.

Australia and many others don’t like this approach as a “decision” to reduce emissions is unlikely to be legally binding and robust under international law. This would set up two legal tiers of agreement – one for Kyoto countries and one for the others. This would result in a situation which would cause the international legal agreement to unravel to such a degree that the agreement would not be seen as fair. (Can you really imagine the Japan ratifying an agreement which is legally binding on them and not the USA or China?)

The approach favored by most of developed countries (and the lawyers) is one which sees a new single agreement emerge out of Copenhagen. This would take parts of the current Kyoto agreement – like economy wide emission reduction targets for Australia and others – and merge this with a new agreement that also includes commitments for the USA and developing countries. Late last Thursday night Australia put in a legal text on the table that elaborated on their proposal to move to a World Trade Organization type agreement.

From what I’ve seen in the negotiating corridors, developed countries appear to see this submissions as a constructive contribution. Not so much because of its legal nature but because the submission brings together a range of proposals that have been put forward by other governments.

For example, it would allow Indonesia to “register” massive solar energy programs (aka a South Korean proposal) in a “low carbon development plan” (aka a European proposal) which would then be supported by a technology fund based on contributions from the USA’s emissions trading scheme (aka from the use of auction revenue proposed in the current emission trading bill before the USA congress).

The tension here is that, like the USA and Japan, Australia is proposing that developing countries take on different levels of commitments. This is a sensible approach in theory, as the Institute highlighted in its submission to the Garnaut Review last year, South Korea and Tuvalu are very different countries but this may raise the backs of the developing country negotiating block as generally they view this as no go area.

The third option broadly on the table is to amend the Kyoto Protocol and develop another legal instrument that covers the USA and the emission reduction actions of developing countries. Broadly, this probably has the most support among developing countries (better the devil you know). While Australia has a strong preference for a single treaty it acknowledges this as a real option to consider.

Whether or not a legal agreement in Copenhagen leads to deep cuts in emissions will depend on the content of the agreement. The best case scenario is an efficient and highly functional legal regime that contains strong commitments from all major emitters. However, it is also possible to envision an efficient and highly functional legal regime that doesn’t achieve deep cuts in emissions, because the commitments it contains are too weak.

Fundamentally, the value to Australia of any international legal framework is whether it meets our national interest. This is dependent on the commitments enshrined in that agreement and incentives for compliance with that agreement.

More on the content over the next couple of days.

Tags: Bonn | Germany | climate talks | emission targets | negotiations