No one is going to allow the Paris climate talks to collapse. The memory of Copenhagen is still raw, and US President Barack Obama has invested enormous political capital in a successful outcome.
This situation hands great bargaining power (or rather, blackmailing power) to India. On the final day of the conference, whatever India insists on will be acceded to.
And India, although talking up its renewables investments, is taking a confrontational approach aimed at watering down the final Paris agreement. As the New York Times put it, Indian Prime Minister Narendra Modi can “make or break Obama’s climate legacy”.
India is refusing to endorse what would be the centrepiece of a Paris agreement: five-yearly reviews of emissions reduction commitments, which are essential to giving the post-Kyoto “pledge-and-review” system teeth – or at least more effective gums.
Part of the answer to India’s intransigence is money – it wants more funding for new energy investment and compensation for loss and damage – but at its core, the refusal to cooperate arises from a nationalist chip on the shoulder left over from colonialism.
But it has to be asked: why is the world community allowing India to hold it to ransom? The simple answer is that it is commonly accepted that when the chair brings down the gavel on the final agreement, there must be consensus.
This answer is not a good one. The expectation of consensus among major powers is inherited from the UN Security Council and the early practice of UN climate conferences to ensure that developing countries felt included.
But consensus is not needed to make a Paris agreement legally binding. In fact, “legally binding” is a fiction and its constant deployment here at the talks is something of a puzzle. The Kyoto Protocol was legally binding under international law, but that did not stop the United States and Australia from refusing to ratify it, and Canada from ratifying then repudiating it. Nothing happened.
Climate law is among the weakest elements of international law. Bolivia refused to endorse the Cancun agreement, declaring it too weak, and a footnote records its dissent. Even some of the strongest international law, the UN Refugee Convention, is flouted with impunity (think Australia and asylum-seekers).
International law is most effective when there are material losses from opting out, such as the loss of most-favoured nation status for countries that do not join the World Trade Organization. That kind of mechanism is the only way to give a climate agreement real bite.
So whatever the words on paper say, anything that comes out of Paris will reflect voluntary commitments, and compliance mechanisms – inventories, reporting and reviews – will also be voluntary. But the strength of those voluntary commitments is vital. “Consensus-minus-one” on a stronger agreement is surely preferable to a weaker agreement with full consensus. So let India dissent, and have its dissent recorded in a footnote to the Paris agreement.
If that is India’s sovereign decision, so be it; but it should be made clear that it will be opting out of all the elements of the agreement, including financial flows. A few years out in the cold (so to speak), while the rest of the world gets on with it, is likely to persuade the emerging giant to adopt a less intransigent position.