The Treasure and the Law

”and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels.” Golden words; they may yet save us. But how on earth, given the massive forces against such high ambition, did they get into the Paris Agreement last week? A year ago, this was being pushed by the “group of small island nations”, tiny, powerless and on the face of it doomed. Last Saturday, 196 countries agreed to their central demand. How come?

Rudyard Kipling had a nice account of the drafting of Magna Carta in 1204, in Chapter 10 of Puck of Pook’s Hill, “The Treasure and the Law.” The Jewish physician-financier Kadmiel tells the story to Dan and Una (Langton is Stephen Langton, the Archbishop of Canterbury):

‘So it was I, not Elias,’ he went on quietly, ‘that made terms with Langton touching the fortieth of the New Laws.’

‘What terms?’ said Puck quickly. ‘The Fortieth of the Great Charter says: “To none will we sell, refuse, or delay right or justice.”‘

‘True, but the Barons had written first: To no free man. It cost me two hundred broad pieces of gold to change those narrow words. Langton, the priest, understood. “Jew though thou art,” said he, “the change is just, and if ever Christian and Jew came to be equal in England thy people may thank thee.” Then he went out stealthily, as men do who deal with Israel by night.

Kipling’s fiction is a fantasy, but reminds us that the greatest of legislative texts are still the products of the grubby political sausage factory. We shall never know what deals were struck to get that 40th article. We do know a little more about Article 2 of the Paris Agreement. The WAPO and the Guardian between them offer a credible account.

First, the small island nations have been highly focused on the demand. They worked with climate scientists and, the NGO created to push James Hansen’s proposal to return atmospheric CO2 to well below current levels. They secured credible studies put on the table showing the difference between 2 degrees and 1.5 degrees, which is at the outer limit of what is technically achievable. 1.5 degrees made it into the early working drafts of the agreement as one of the thousands of options, and there it stayed till the conference.

Second, they won round the French hosts: Hollande proposed it in his opening speech. In such huge meetings, the chair’s power of controlling the flow of documents and orchestrating the side-meetings is greater than in a smaller group. Fabius had a high-tech control room at his disposal with live feeds from all the meeting rooms, next-door offices to the secretariat, a team of 60, and a 20-bed private dormitory, so his troops were always that bit fresher.

The key manoeuvre came in the middle of the week. The G77 alliance of developing countries, led by China, India and South Africa, was demanding more and more language on differentiated responsibilities, to the extent of effectively going back to the disastrous Kyoto principle that only rich countries had to cut; more finance than the $100 bn a year promised in Copenhagen; and language on loss and damage that was unacceptably strong to the rich countries. However, the alliance was divided on the 1.5 degree aspiration, with the big four – China, India, South Africa and Brazil – against it.

This opened the door for a well executed diplomatic wedge.  Tony de Brum of the Marshall Islands took the lead (at somebody’s suggestion, no telling whose) in forming a “coalition of high ambition”, including many of the G77 plus the EU, the USA, Canada and Australia. In effect, the rich countries offered 1.5 degrees to split the G77 and isolate the big four. The poor countries on their side had to drop the demands on differentiation and finance; on loss and damage, the difference seems to have been split – but crucially with no admission of legal liability (Decision, paragraph 52). Before the end, Brazil jumped ship too. Their troops having deserted to the enemy, China, India and South Africa folded, and the way was open for the deal.

[Cross-posted at The Reality-Based Community]

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