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When the Clinton administration signed the Kyoto Protocol, he said to
the United Nations, and to the rest of the world, “The United States
will accept legally binding emissions reductions mandated by the United
Nations.” Neither Bill Clinton, nor anyone else in the world, knows
what “legally binding” means. Delegates to the U.N. global warming
talks in Bonn, Germany, are just beginning to give meaning to the term.

They must decide how compliance is to be monitored, who will do the
monitoring, and perhaps most difficult, what will be the penalty for
non-compliance.

Early negotiations indicate that the delegates are thinking of a
special “compliance body” to do the monitoring. There is wide
disagreement about how such a body should be comprised. Some delegates
suggested that the compliance body be a permanent, standing body, but
South Africa and several Small Island States, want the body to be
flexible in size, depending upon the amount of work it has to do. Other
delegates suggested that the body be small, consisting of experts
appointed by selected governments, but serving at the pleasure of the
U.N. rather than their national governments. Switzerland wants the body
to have equal representation from nations that are bound by the Kyoto
Protocol as well as those that are not bound.

Twenty-two months after the Kyoto Protocol was adopted, and 12 months
after the U.S. signed it, and after a two-week meeting in June of this
year, and after a week of talks here in Bonn, the compliance negotiators
are still stumbling around looking for a starting point. The final
agreement is supposed to be reached and adopted at COP6 one year from
now. Despite the lack of agreement to date, the history of past
negotiations suggests that they will likely make the deadline.

Much of the negotiation that is public, or even reported, is for
public consumption back home. The real negotiations go on behind closed
doors, and the most thorny issues are never agreed until the last
minute. In Kyoto, the Protocol was not finally agreed upon until nearly
12 hours after the meeting was scheduled to adjourn. China, so far, is
the only nation that has consistently refused to budge after its
position on an issue has been announced. The U.S., on the other hand,
frequently announces publicly a position that is likely to gain favor at
home, and then privately, acquiesces to the demands of other nations.

Unlike the U.S. House of Representatives or the U.S. Senate, where
elected officials stand and debate an issue that is eventually decided
by a public, recorded vote, issues at the United Nations are decided by
“consensus.” Nameless, appointed individuals bargain in secret sessions
until agreement is reached. If the agreement reached is inconsistent
with the outcome desired by the leadership, the agreement can be
returned for further “consultations.” Only when an issue such as the
compliance mechanism is resolved in a way that is acceptable to the
parties and to the leadership is the agreement announced to the public.

Such was the case in Kyoto when the Protocol seemed bogged down in
irreconcilable differences. Private meetings at the last minute
produced a consensus which the delegates defended by saying “that’s the
best we could get.” The final agreement was acceptable to the
leadership.

During the negotiations, delegates may huff and puff for the benefit
of the press, but in the end, whatever the consensus, it will be what
the leadership wants.

The details of the compliance regime are not as important at this
point as the enforcement mechanism. Brazil and Iran want financial
penalties imposed upon nations that fail to comply. Australia suggested
that offending nations should be able to choose from a menu of
consequences. This is the real meat of the controversy.

Does this U.N. body have the authority to impose financial penalties
on the United States, or any of the other 37 nations bound by the Kyoto
Protocol? Presumably, should the U.S. ratify the Protocol with the
ambiguous “legally binding” language, it will have to accept whatever
the delegates define “legally binding” to mean. Since the primary
objective of the Protocol is to provide an excuse to force the transfer
of money from developed countries to developing countries, it is likely
that the menu of choices that Australia suggested will turn into a list
of fines to be paid for various degrees of non-compliance.

The enforcement of any compliance regime begs the question of the
appropriateness of subjecting the United States to any foreign entity
that has the power to impose financial penalties. Does not sovereignty
mean the superior power? If the U.N. has the power to impose a
financial penalty on the United States, is the United Nations’ power not
superior to the United States?

Bill Clinton has already agreed to this principle, when he signed the
Kyoto Protocol. Fortunately, there are enough senators who respect
national sovereignty, that the Protocol has not yet been ratified. The
delegates meeting in Bonn are convinced that it will be ratified,
perhaps after the next U.S. election. The delegates seem oblivious to
the fact that nearly two years after the Protocol was adopted, it has
not been ratified by a single nation that is bound by it. When the
rules for implementation are agreed at COP6 next year, they believe all
nations will quickly jump on board.

Whatever the compliance regime turns out to be, it will translate
into American tax dollars moving south and east. No one, but no one,
thinks for a moment that there is any chance at all that America can or
will meet its Kyoto target.

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