Washington Lawyer - September/October 2020 - 45

MEMBER SPOTLIGHT
Even as Biniaz was promoted to positions in
different State Department offices, such as
becoming one of four deputy legal advisers,
she continued to participate in UNFCCC talks
surrounding subsidiary agreements like the
2015 Paris Agreement.
Biniaz says the United States did not envision
at the start a strict divide between developed
and developing countries in terms of mitiga-
tion commitments, or a fixed interpretation of
UNFCCC's "common but differentiated responsibilities" provision. But the 1997 Kyoto Protocol
embedded that divide, making it difficult for
the United States to negotiate, especially given
the 1997 Byrd-Hagel Resolution's insistence
that developing countries also have mitigation
commitments.
During the Obama administration, the United
States sought a new mitigation/agreement
approach in climate talks. Going into the 2009
Copenhagen Summit, Biniaz says "one of our
mantras was legal symmetry, legal parallelism."
She feels the U.S. position proved persuasive as
"all the major economies took on commitments,
including the United States and China, and [it]
was done in a way that maximized participation
of countries." The Copenhagen Accord was not
officially adopted, but Biniaz and Stern say the
seeds for the Paris Agreement were there.

The 2011 UNFCCC talks in Durban, South Africa,
furthered the prospects for a new agreement
without the divide of the Kyoto Protocol. But
Durban was not without drama; at the very
end, India voiced strong opposition to a legally
binding treaty. Biniaz led the compromise,
adding the last phrase: "a protocol, another
legal instrument or an agreed outcome with
legal force" (which India interpreted to mean as
non-binding). "It is what people now refer to as
constructive ambiguity," says Dan Bodansky, a
professor at Arizona State University's Sandra
Day O'Connor College of Law, who first got to
know Biniaz when they worked at the State
Department in the mid-'80s. "The ambiguity is
useful because it allows you to continue the
process without getting completely stuck."
Another milestone in Biniaz's career was the
2014 U.S.-China Joint Announcement on
Climate Change, which Stern describes as an
"absolutely pivotal agreement between the
two countries." Stern's counterpart in the
negotiation was Xie Zhenhua, whose deputy
counterpart match for Biniaz was Su Wei. The
two of them got to be called the "two Sus."
"Xie and I would be in a negotiation and would
push the principles of the discussion as far as
they could be pushed, then the two Sus would
be dispatched to a nearby room and left to
come back with
language that
both sides could
live with," Stern
recalls.

International Institute for Sustainable Development

Massaging the
"common but
differentiated
responsibilities"
mention "in a
way that made it
more supple, less
absolute" was
one especially
successful
outcome of the
two Sus's joint
work, Stern says.

Susan Biniaz (in white long-sleeved shirt) with former U.S. Special Envoy for
Climate Change Todd Stern (in red tie) at the 2011 United Nations Framework
Convention on Climate Change in Durban, South Africa.

Biniaz believes
the hard work
on the road
to the 2015
Paris Agreement
produced a
promising breakthrough, in part

because it combined definitive measures, such
as reporting and transparency requirements,
with the reorientation to nationally determined
goals that countries themselves promulgate.
Stern says Biniaz was indispensable during the
Paris talks.
"Anytime things really got down to the final
clinches, almost invariably Sue would be in
there trying to work out final language if the
issue were really important or really stuck,"
Stern recalls. "She would find the most elegantly minimal way of getting through an
impasse."
Since leaving the State Department, Biniaz's
influence continues through her fellowship with
the UN Foundation and academic efforts. "Most
academics I know love her writing because it
gives so many insights from a practitioner's perspective [into areas] that don't get as much
focus from academicians - for example, the
importance of language and particular formulations," says Bodansky. The witty and erudite
"Comma but Differentiated Responsibilities:
Punctuation and 30 Other Ways Negotiators
Have Resolved Issues in the International
Climate Regime" is one of Biniaz's writings that
Bodansky now assigns to his students.
For the 2020-2021 school year, Biniaz is
teaching "Negotiating International
Agreements: The Case of Climate Change" at
both Yale Law School and the Yale Jackson
Institute for Global Affairs. She says her
teaching goal is three-fold: the history of the
climate regime; a close reading of international
agreements; and, she says, "the techniques for
problem solving in international negotiations."
"I think of most of my career as an exercise in
problem solving. You are not a lawyer who
goes into a traditional courtroom - in a way,
negotiations are a courtroom in a different
sense. But what is challenging and fun about it
is having some problem before you that seems
impossible to solve," Biniaz says. "So, one of the
things I found most rewarding was just developing for myself a set of tools for problem
solving, and then deploying them."
And now, from a slightly different vantage
point, Biniaz plans on actively engaging with
climate discussions, while also conveying her
knowledge to those interested in the ongoing
search for global solutions.
Richard Blaustein is a freelance science,
environmental, and legal journalist with
a background in environmental law.

SEPTEMBER/OCTOBER 2020

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