Should the 2015 Climate Instrument have an Opt-Out Clause?

As delegates debate the key elements of a new, post-Kyoto agreement, they look to other international environmental agreements for ideas. It is clear to most that the Kyoto Protocol failed to bring key actors on board (the US), and create flexibility for other actors to assume commitments (or contributions) as their economies grew (notably, China and India). Other failings of the top-down Protocol are evident: poor implementation of commitments, and little support for developing countries to pursue low-emissions growth strategies. The list goes on.

A new model is necessary, prompting the search for new ideas. At COP-19 in Warsaw, parties held a workshop to consider the Convention of International Trade of Endangered Species (CITES), the Montreal Protocol on CFCs, and the Stockholm Convention on Persistent Organic Pollutants (POPs). For each, the presentations hit the high notes, considering each convention in general terms.

Some ideas are worth considering in detail. An opt-out clause is one such possibility, allowing parties to formally withdraw from some aspects of the agreement. This would occur as a written statement from the government, deposited with the Secretariat and made public.

An opt out clause would free the leaders, identify the laggards, and protect sectors vulnerable to the negative effects of market mechanisms.

The Stockholm Convention on Persistent Organic Pollutants (POPs) has an opt out clause. Parties regularly add new POPs to the Convention after a scientific review by the POPs Review Committee determines that a chemical is likely, as a result of long-range environmental transport, to lead to significant human and/or environmental effects. The opt out clause allows countries to withdraw from the elimination or management of a new chemical.

Allowing countries to opt out creates a “are you with us or not?” dynamic. Leaders are free to move ahead of the pack, creating competitive advantages for new, cleaner industries. They are identified as leaders to industry, civil society and other states. These leaders are not confined to the lowest-common denominator tendency of modern environmental agreement reached by consensus.

Those who opt out are subject to soft tools of persuasion and moral suasion. These tools may be called soft, but are likely effective. To date, few states have opted out of commitments from newly -listed chemicals under the Stockholm Convention. While the provision exists, states seem unwilling to use it. Instead, as seen with the debate over HBCD in the Stockholm Convention, parties want to negotiate rather than simply opt out.

Parties that opt out are clearly marked as laggards and unable to mask their non-compliance with complicated rules or loopholes. It is public information that a given state deliberately withdrew from an international agreement (or part of). They become targets for civil society activism and other states’ diplomatic efforts. The US effectively opted out when George W. Bush refused to ratify the Kyoto Protocol. The infamy of this event points to the norm of states generally seeking to play by the agreed rules and the reluctance of states to brazenly opt out. When a state opts out, everyone knows who to blame.

Further, their industries lose out when other, cleaner industries become more competitive in a global market. As the leaders innovate and encourage new industries to grow, older industries lose market share. These states then face an uphill battle to catch up with the world moved on without them.

There may be positive effects from opting out, including protecting vulnerable sectors from the negative effects of climate market mechanisms. Developing countries are reluctant (for good reason) to keep agriculture out of mitigation mechanisms, yet some developed countries would like to include agriculture. One third of New Zealand’s greenhouse gas emissions come from the agricultural sector. If these were reduced, without market mechanisms, that would represent a global benefit. New Zealand would be free to reduce its emissions, while developing countries could protect their agricultural sectors from land grabs, and other negative effects potentially associated with mitigation from the agricultural sector.

A similar logic could apply to other land-based activities, such as reducing emissions from deforestation and degradation (plus conservation, sustainable management and enhancement of forest carbon stocks) (REDD+). Brazil could reduce emissions from the forest sector, to count towards its national accounting of reductions, while other countries will unclear land tenure could opt out, and protect local communities.

The Paris 2015 Agreement, if there is one, looks so far to be a bottom-up compilation of national contributions toward global reductions. Stronger action may require bolder ideas.

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