From all I can gather, the actual on-paper negotiations are moving this week, progressing in some way towards some kind of agreement. (We'll get to what kind of agreement soon.) But we wouldn't have much way of knowing, since proceedings largely disappeared behind closed doors this week. I've been told by plenty of folks--including two former US negotiators--that I shouldn't complain about the lack of access, because it's the closed-door meetings where things really get done. Still, it's frustrating that an institution that prides itself on openness seems to operate best through closed meetings. The American delegation does seem more confident at this stage that there's an agreement out there to be achieved. Whether that agreement will be anything close to what the science tells us is necessary is another question (hint: it won't be). And what form that agreement will take has become the story of the week. Will it be a "legally-binding" treaty that is enforceable by international law, or will it--as many high profile figures have recently commented--be some kind of "political" agreement that critics say would be toothless.

Politics, not law, could govern agreement

On Tuesday I wrote that this political/legal face-off was "looking to be the hottest-button item for the rest of the week, and possibly straight through December" and that remains true. So what has caused the fervor and fretting over the "lowering of expectations for the Copenhagen negotiations," as was cited in today's satirical "Fossil of the Day" prize that's awarded by CAN-International to the nation(s) that have done the "best" at blocking or stalling the talks.

Here's US Special Envoy on Climate Change Todd Stern's comment that helped earn the award: "We should make progress towards a political agreement that hits each of the main elements."

• Danish Prime Minister Lars Lokke Rasmussen: "it is a challenge for every single industrialised country in the world to deal with the climate change issue and that's why we are working very strongly to reach a politically binding agreement in Copenhagen..."
• UNFCCC Chair Yvo de Boer: "It is absolutely clear that Copenhagen must deliver a strong political agreement and nail down the essentials."
• UN Secretary General Ban Ki Moon: "several key countries were not ready to sign up to binding targets and that the best the world could hope for from the summit would be 'political commitments.'"
• Lars Løkke Rasmussen, Prime Minister of Denmark: "We do not think it will be possible to decide all the finer details for a legally binding regime."

And the list could go on.

What's so bad about a politically-binding agreement?

The obvious concern is compliance. What reason does any sovereign nation have to meet the commitments of the agreement if there are no legal repercussions for non-compliance. "Political agreements "are worth very little," said Lumumba Stanislaus Di-Aping, the Sudanese chair of the Group of 77 and China. "Tell me of any politician who delivered on his political manifesto?" Or, as Kevin Grandia wrote, "With all the long hours I've been putting into to covering these climate talks, I'm sure my wife is wishing our marriage was a politically binding agreement, as opposed to a legal one."

The gray area between legal and political

There is, however, more nuance than most of these quotes indicate, and between the "politically-binding" final agreement feared by so many and the "legally-binding" COP15 outcome, there's quite a bit of gray space. Most of the parties cited still believe that a legal agreement is necessary and possible, just not before December 18th when the Copenhagen talks wrap up. Their thinking, rather, is that some kind of political framework is possible within six weeks, and then the legal aspects can be hammered out soon after. It could be dangerous to ignore this gray area and turn the legal/political argument into an all-or-nothing, black-and-white issue. By all practical accounts, it would be simply and technically impossible to hammer out the finer details of a true legally-binding treaty by the end of Copenhagen. But that doesn't mean that it's never possible--that in three or six months more time the legal jargon couldn't be pulled together--that the world would be doomed to a toothless, unenforceable handshake agreement-in-words-only that no nation would ever feel compelled to live up to. The actual outcome will almost certainly fall somewhere between the two, but if we write a temporary political commitment off as failure in December, we risk the reality falling somewhere further down the dangerous end of the "binding" spectrum. Tomorrow I'm going to work on figuring out just how a temporary political agreement could carry us towards a legally-binding deal sometime next year. Stay tuned.

From September through December, I'll be tracking the American positions in the international climate treaty negotiations for the Adopt-A-Negotiator project. Together, we're tracking the negotiators from twelve key countries up to and through the December COP15 meetings in Copenhagen.