A. Introduction
The last two years have witnessed a flurry of diplomatic activity on climate change. In addition to the 16 weeks of scheduled inter-governmental negotiations under the auspices of the UN Framework Convention on Climate Change (FCCC),Footnote 1 meetings, many at a Ministerial level, were convened by the G-8,Footnote 2 the Major Economies Forum,Footnote 3 the UN Secretary General,Footnote 4 and Denmark,Footnote 5 the host of the 15th Conference of Parties (COP-15) to the FCCC. Notwithstanding regular and intense engagement at the highest-level many fundamental disagreements remained in the lead up to COP-15, including on the future (or lack thereof) of the Kyoto Protocol,Footnote 6 the legal form and architecture of the future legal regime, and the nature and extent of differential treatment between developed and developing countries.
FCCC COP-15 held at Copenhagen, 7–18 December 2009, attracted 125 heads of State and government, the largest such gathering in the history of the United Nations, and nearly 40,000 participants. No collective challenge facing humanity has ever before attracted such attention, participation and political capital, yet the international community could not resolve its differences and arrive at a formula to address climate change. The Copenhagen conference resulted in decisions to continue negotiations under the FCCCFootnote 7 and Kyoto Protocol,Footnote 8 as well as the controversial Copenhagen AccordFootnote 9 reached among a subset of the Parties to the FCCC and Kyoto Protocol.
This article explores the possibilities and limits of the Copenhagen Accord in the context of the ongoing international climate negotiations. It examines in particular the compromises reached in the Accord, albeit tentative and provisional, as well as the discord that survives the Accord. It analyses the status and significance of the Accord, the legal and procedural difficulties that arise in the wake of the COP decision to ‘take[s] note’ of rather than adopt the Copenhagen Accord, and the challenges that line the road ahead.
B. The Making of the Copenhagen Accord
The Copenhagen Accord was reached among 28 Parties to the FCCC, including all major emitters and economies, as well as those representing the most vulnerable and least developed.Footnote 10 As deliberations remained deadlocked well into the second week of COP-15 when heads of state and government began to arrive, the Danish Prime Minister, Lars Løkke Rasmussen, in a bid to salvage the floundering conference, organized a high-level negotiation, in parallel with the official negotiations, to agree on the elements of a political deal. Earlier attempts by the Danish presidency to obtain COP authorization, explicit or implicit, to convene a select ‘Friends of the Chair’ groupFootnote 11 to negotiate a deal, had been scuttled by some developing States that sought political and ideological representation rather than regional and coalition-based as is customary.Footnote 12 The high-level negotiations, given the many twists and turns they reportedly took,Footnote 13 did not link back to the official negotiations. The COP, therefore, had neither authorized the formation of a group to negotiate the Accord, nor was it kept abreast of the negotiations as they evolved. Such information as was available to the unrepresented Parties and observers alike was provided by the media, rather than through official channels.Footnote 14 As these events followed 10 days of procedural irregularities and misjudged initiatives by the Danish presidency,Footnote 15 patience and confidence were wearing thin. Consequently, when the Accord was presented to the COP for adoption late on 18 December, 2009, it was rejected by, among others, members of the Bolivarian Alliance for the Americans (ALBA)—Bolivia, Cuba, Ecuador, Nicaragua, and VenezuelaFootnote 16—Sudan and Tuvalu. They did so both because of the manifest procedural irregularities in the negotiation of this Accord as well as the substantive inadequacies they perceived in it. Bolivia argued that the Accord fell far short of requiring that which was necessary from developed States—a reduction of 49 per cent below 1990 levels by 2020, and a 6 per cent of GDP contribution towards adaptation finance for developing states. As COP decisions require consensus for adoption,Footnote 17 the COP, in a night marked by unparalleled histrionicsFootnote 18 and presidential ineptitude,Footnote 19 could only resolve to ‘take[s] note’Footnote 20 of the Copenhagen Accord. It is worth noting that the ALBA nations that seek a radical transformation of the liberal international legal order may well have rejected any ‘deal’ presented to them. However the procedural irregularities and perceived high-handedness of the Danish hosts, and the advanced developed countries, served to fuel their anger, and lend support for their cause.
C. The Copenhagen Accord
The Copenhagen Accord is a short document, five preambular recitals and 12 operational paragraphs, covering the pillars of the Bali Action Plan, 2007,Footnote 21—shared vision, mitigation, adaptation, finance and technology.
On Shared Vision, the Accord recognizes ‘the scientific view that the increase in global temperature should be below 2 degree Celsius,’Footnote 22 and, that in order to achieve this, ‘deep cuts in global emissions are required.’Footnote 23 The Accord also requires States to cooperate in achieving ‘the peaking of global and national emissions as soon as possible, recognizing that the time frame for peaking will be longer in developing countries.’Footnote 24 The Accord neither quantifies the ‘deep cuts’ needed to reach the 2 degree C goal nor indicates how the burden will be shared between States. It does not specify a benchmark from which the 2 degree C increase is to be judged (as for instance ‘from pre-industrial levels’),Footnote 25 or prescribe a specified peaking year or time frame, leaving these instead to be determined by States.
On Mitigation, the Accord, does not prescribe aggregate or individual emission reduction targets, either mid-term or long-term. Rather, it requires Annex I PartiesFootnote 26 to commit to targets, and non-Annex I Parties to undertake mitigation actions. It is silent on the issue of comparability across targets or actions. The Accord requires these targets or actions to be inscribed in its Appendix I and II respectively, as well as compiled in information documents.Footnote 27 It is worth noting that pledges made thus far fall well short of that which is considered necessary to achieve stabilization at 2 degree C.Footnote 28 On the related issue of transparency of mitigation actions, the Accord requires non-Annex I Parties to: submit national communications every two years, (more frequently than currently required of Annex I Parties);Footnote 29 and, ensure domestic measurement, reporting and verification (MRV) of mitigation actions, report these through national communications and provide for ‘international consultation and analysis.’Footnote 30 For mitigation actions seeking support from the international community, the Accord provides for a registry to record actions and support, and international MRV.Footnote 31
On Adaptation, the Accord recognizes the urgent need for adaptation action, and requires developed countries to support adaptation action in developing countries.Footnote 32 Although the Accord does not quantify the support devoted to adaptation, it requires the collective financial commitment of developed countries for the 2010–2012 period, US$30 billion, to be allocated in a balanced fashion between adaptation and mitigation.Footnote 33
On Finance, the Accord captures agreement among developed countries that they will raise 30 billion USD in the 2010–2012 timeframe, and mobilize US$100 billion per year by 2020. Such funding however will come from a ‘wide variety of sources, public and private, bilateral and multilateral, including alternative sources of finance.’Footnote 34 A significant portion of such funding is intended to flow through the Copenhagen Green Climate Fund, which the Accord establishes as an operating entity of the financial mechanism of the Convention.Footnote 35 Although the short term financing is intended to be allocated in a balanced fashion between mitigation and adaptation, no such requirement is imposed on long term financing. In addition, the commitment on short term financing is to ‘provide new and additional resources,’ whereas the commitment on long-term financing is to ‘mobiliz[e] jointly’ through a ‘wide variety of sources.’ It is also noteworthy that the commitment on long-term financing is ‘in the context of meaningful mitigation actions and transparency on implementation.’ This can be read to suggest that long-term financing, which will be ‘mobiliz[ed]’ from the market, will be directed primarily towards mitigation.
The Accord in short paragraphs, rich in promise and limited in detail, also establishes a Technology Mechanism and a REDD+ Mechanism (reducing emissions from deforestation and forest degradation in developing countries).Footnote 36 In the final paragraph the Accord provides for an assessment of its implementation by 2015, with a view to strengthening the long term goal, possibly by limiting temperature increase to 1.5 degrees C.Footnote 37
D. The Unmaking of the Copenhagen Accord
1. Status and significance
Had the Copenhagen Accord been an independent plurilateral agreement between nations representing the majority of emissions and populations of the world, it could have had considerable force. The Accord, however, is far from it. It was drafted on the operational presumption that it would be adopted as a COP decision. This is evident from the clear terms of the Accord which make numerous references to the COP,Footnote 38 as well as the initially distributed draft which contained FCCC and Kyoto Protocol document numbers. When it became clear that the Copenhagen Accord would not be adopted by the COP, the Accord could, at that juncture, have been redrafted to ensure that it could be operationalized independently of the FCCC process. This, however, was not done, presumably as those heads of State and government that had negotiated the Accord were winging their way home, and because any redrafting exercise may have upset the delicate and hard-won balances struck between competing interests. Be that as it may, the perverse result of the negotiations between States on the night of 18 December, 2009, is that the Copenhagen Accord is a document with an uncertain status. It is neither a COP decision that can be operationalized through the FCCC institutional architecture and draw on the existing normative corpus, nor is it an independent plurilateral agreement with its own operational architecture and normative core. Brazil indeed underlined this conclusion in its submission. The Accord in Brazil's view was not ‘a stand-alone, plurilateral instrument that could engage only a group of countries based on an ‘opt-in’ process.’Footnote 39 China and India agreed, but went further to prevent the creation of an independent negotiating track under the Accord. In China's words, ‘[i]t is neither viable nor acceptable to start a new negotiation process outside the framework of the Convention and the Protocol.’Footnote 40 And, India notes, that ‘the Accord is not a new track of negotiations or a template for outcomes.’Footnote 41
If it is neither a COP decision, nor an independent plurilateral agreement, how then may the Copenhagen Accord best be characterized? Brazil characterized the Accord as a ‘political instrument.’Footnote 42 South Africa acknowledged that the Accord captures ‘political agreement on some contentious elements.’Footnote 43 India perceived it as a ‘political understanding,’Footnote 44 and China as a ‘principled consensus … of great political significance.’ Footnote 45 Nauru considered the Accord a ‘political statement’ made by those countries that choose to associate themselves to it.Footnote 46 The United States characterized the Accord as a ‘consensus package’ that achieves ‘landmark outcomes.’Footnote 47 In their view the Accord is ‘expressly operational’ and they welcome ‘a further formalization of the Accord in Mexico,’Footnote 48 the use of the word ‘further,’ indicating perhaps that they assign an unspecified formality to the Accord as it stands.
It is clear that the Copenhagen Accord is a political rather than a legal instrument, but it is less clear what level of significance is to be attached to this political instrument. In the lead up to COP-15, once hopes for a legally binding outcome had receded, the Danish Prime MinisterFootnote 49 the UN Secretary General,Footnote 50 and the Executive Secretary of the FCCC secretariat,Footnote 51 among others, set their sights on a ‘politically binding’ agreement that would chart the way for post-Copenhagen negotiations. Is the Accord such a ‘politically binding’ agreement? And, is it useful to think in these terms? A politically binding agreement, to venture a definition, is an agreement the breach of which will lead to political (rather than legal) consequences.Footnote 52 Since the visitation of political consequences by particular States on others for the breach of a multilateral or plurilateral agreement is discretionary, covers a wide range of possible consequences, and is conditioned by numerous diplomatic factors, many of which are unrelated to climate change, the term ‘politically binding’ may not be a helpful one. This is not to suggest that the Copenhagen Accord does not have significance, but that to attribute any level of ‘bindingness’ to it, whether political or legal, diverts focus from the true significance of the Accord, which lies not in its legal or political character and consequences that follow its breach, but the use Parties put it to both in the evolution of the climate regime as well as in other fora.
The use that the Copenhagen Accord may be put to in the evolution of the climate regime has proven to be the primary locus of contention in the climate negotiations in the first half of 2010. The FCCC secretariat clarified, on being requested to do so, that the provisions of the Accord ‘do not have any legal standing within the UNFCCC process.’Footnote 53 Venezuela, with the ALBA countries, argues that as the COP conferred neither legitimacy nor legal force to the Accord, it cannot and must not be used as the basis for a future agreement.Footnote 54 The BASIC countries, with the vast majority of developing countries, agree that to the extent that it plays a role, the Accord should feed into the two-track FCCC and Kyoto Protocol negotiation processes, which remain, in their view, the legitimate fora for further negotiations.Footnote 55 They also argue that the negotiations must be based not on the Accord, but the draft negotiating texts produced by the Ad Hoc Working Groups (AWGs) and the submissions of Parties.Footnote 56 In contrast, the United States and Japan prefer to proceed on the basis of the Copenhagen Accord, and question the status and utility of the AWG texts.Footnote 57 The United States notes that ‘it was not agreed that the LCA (Ad Hoc Working Group on Long Term Cooperative Action) texts would be the basis of any future negotiation’ and, ‘Parties will need to consider which texts are still relevant in the first session of the LCA in light of circumstances in Copenhagen.’Footnote 58 Other developed countries, with differences of degree and in emphasis, focus on the Copenhagen Accord rather than the AWG texts.Footnote 59 The EU was the most guarded, suggesting merely that the Accord provides ‘important additional input and guidance.’Footnote 60
In the negotiating texts thus far produced by the Chair in 2010, first on 17 May 2010,Footnote 61 and a revised version on 10 June 2010,Footnote 62 the Copenhagen Accord—albeit never referred to as such—plays a significant role. In particular the paragraphs of the Accord on mitigation both for developed and developing countries as well on finance have been reproduced verbatim in these texts. The revised negotiating text is yet to be fully discussed. It was introduced in the end of the June negotiating sessions that concluded on 11 June 2010, and vigorously opposed by many including the G-77 as they perceived the text as ‘unbalanced’ and prejudging the fate of the Kyoto Protocol.Footnote 63 Much of the discord related to the extent to which (or lack thereof) the revised negotiating text was in consonance with elements of the Copenhagen Accord. Bolivia characterized the text as ‘Copenhagen+,’ believing the Chair's text to be far too faithful to an agreement that had no formal status in the negotiations, while the US considered the Chair's text as not sufficiently faithful to the Accord.Footnote 64
2. Legal and Operational Challenges
The uncertainties—in relation to the status and significance of the Accord—are posing operational and legal challenges as well as create a political drag in implementing the Accord.Footnote 65 The last preambular recital to the Copenhagen Accord reflected the will of States to render the Accord ‘operational immediately,’ but this will is being thwarted for several reasons.
First, it is unclear who precisely the addressees are. The Copenhagen Accord uses the FCCC categories ‘Annex I’ and ‘non-Annex I’ Parties as well as the terms ‘developed countries’ and ‘developing countries.’ In the paragraphs relating to mitigation the Accord uses both sets of terms, and in the paragraphs and references to financing it uses the latter set.Footnote 66 The Bali Action Plan, which launched the process towards a Copenhagen ‘agreed outcome,’ steered clear of using the categories Annex I and non-Annex I Parties, instead using ‘developing country Parties’ and ‘developed country Parties.’Footnote 67 At the time this was considered significant, as the use of the seemingly open-ended ‘developing’ and ‘developed,’ rather than the static Annex I (and by extension non-Annex I),Footnote 68 in the Bali Action Plan arguably allowed the categories of developing and developed countries to be negotiated anew. Parties made numerous proposals in the two years between Bali and Copenhagen which addressed the reformulation of these categories, but the proposals proved controversial, and did not acquire traction.Footnote 69 In any case it had been argued that the term ‘developed country Parties’ was synonymous with Annex I, and ‘developing country Parties’ with non-Annex I, as the qualifier ‘Parties’ limits the interpretation of these categories to those prevailing in the FCCC. Intriguingly, the Copenhagen Accord does not use the qualifier ‘Parties’ when it refers to developed and developing countries in the context of financing. Indeed, the qualifier ‘Parties’ that appeared in an earlier version of the Accord was deleted in the final version.Footnote 70 It is possible that this omission is due to the fact that heads of State and government, rather than diplomats supported by technocrats, negotiated this instrument. Be that as it may, the use of such open-ended terms opens up the categories of countries with financial obligations or entitled to support, and leaves it to States to determine ‘who does what?’ The Chairs' revised negotiating text uses the terms developed and developing country Parties, but notes that Parties have used different terms, and depending on the outcome of negotiations the terms used may need to be made consistent.Footnote 71
Secondly, since some parts of the Accord do not rely on COP engagement whilst others do, some parts are readily operationalizable whilst others are not. This asymmetry will likely upset the balance between various elements of the political deal struck at Copenhagen. Some parts of the Accord, as for instance relating to mitigation, rely on national governments to deliver. Developed states agreed to implement economy wide emissions targets for 2020, and developing States agreed to implement mitigation actions. All States agreed to submit these targets and actions to the secretariat by 31 January 2010 for them to be compiled in an information document. The requirements imposed on states by the Copenhagen Accord can thus, in theory, be readily operationalized as the primary locus of action is in the domestic rather than international sphere. The requirements—provision of information—at the international level are limited. In contrast, provisions relating to financing require and indeed presume COP involvement and, therefore, cannot be readily operationalized. One of the significant achievements of the Accord is that it prescribes quantified ambition levels for developed countries to raise US$30 billion for the period 2010–2012 and mobilize USD 100 billion a year by 2020.Footnote 72 As noted, the Accord requires a significant portion of this funding to flow through the Copenhagen Green Climate FundFootnote 73 which it envisaged as an operating entity of the financial mechanism of the Convention.Footnote 74 The establishment of such a fund would require a COP decision, which as there was no agreement on the Accord, will not be forthcoming anytime soon. It is of course possible for this fund to be housed elsewhere, but since the existing understanding reflected in the Accord had been displaced, there is no clarity or agreement on where, how and when this fund would be established.Footnote 75 The link between developing country mitigation actions and developed country provision of financing, already tenuous in the Accord, was further weakened by the lack of clarity on the channels through which this financing would be provided.Footnote 76
Another example of asymmetry is in relation to measurement, reporting and verification (MRV) obligations. The Accord requires mitigation actions taken by non-Annex I countries to be subject to domestic MRV and reported through national communications. This can be readily implemented as it requires national action followed by international reporting through existing channels. In addition the Accord requires ‘international consultation and analysis under clearly defined guidelines.’Footnote 77 It does not specify where and by whom such guidelines will be crafted, so in theory, such guidelines could be agreed among those who have associated with the Accord, and this too may then be implemented. MRV for the financing by industrialized countries of such mitigation actions, which according to one interpretation of the Bali Action Plan, is a precondition to MRV of developing country mitigation actions,Footnote 78 depends on ‘existing and further guidelines adopted by the Conference of Parties.’Footnote 79 Existing guidelines for MRV of financing are tailored to existing obligations of Parties.Footnote 80 To the extent that the Copenhagen Accord places more onerous requirements on developing countries—both in terms of actions and MRV of those actions—to preserve the balance envisaged in the Accord there would need to be ‘further,’ presumably more demanding, guidelines for MRV of financing of those actions. Since the elaboration of ‘further’ guidelines depends on COP engagement, enhanced MRV of financing will not lend itself to immediate implementation. The direct link between MRV of financing and MRV of developing country mitigation actions, already weakened by the Accord's placement of these in separate paragraphs, is further weakened by the asymmetry in the extent to which these provisions can be operationalized as currently drafted.
Thirdly, since the Accord was set adrift from its FCCC moorings in the early hours of 19 December 2009, some of the normative presumptions it was based on, no longer apply. To illustrate, the Copenhagen Accord requires non-Annex I Parties to submit their national communications, containing inter alia their mitigation actions, every two years.Footnote 81 Currently, non-Annex I Parties are required to submit their national communications every four to five years,Footnote 82 and the ‘full agreed costs’ of preparing and submitting their communications are to be provided by developed country Parties.Footnote 83 The Copenhagen Accord, however, does not specify who will bear the costs of these more frequent national communications required of developing States. Had it, as intended, taken the form of a COP decision, it would have built on existing FCCC norms, and the costs would have been borne, as mandated by the FCCC, by developed countries. However, this presumption no longer holds. It is unclear who will bear the costs of non-Annex I national communications, to what extent, and how.Footnote 84 It is worth noting that should the Copenhagen Accord be operationalized, national communications from developing countries will be more frequentFootnote 85 and more rigorously ‘consider[ed]’ than those from developed countries.Footnote 86 The Chair's revised negotiating text seeks to address this anomaly by requiring full national communications every three to five years from developed countries, and every six years from developing countries.Footnote 87
Fourthly, given the Accord's questionable legal basis and its fragile connection to the FCCC, the extent to which the FCCC secretariat can facilitate further action on the Accord is debatable. The Danish presidency and the UN Secretary General in a missive dated 30 December 2009 urged Parties to ‘sign onto the Accord’ as well as to submit information to the FCCC secretariat on their mitigation commitments and actions by 31 January 2010.Footnote 88 Cuba responded immediately by questioning the authority of the Danish presidency and the UN Secretary General to open the Accord for signature, given not only the absence of consensus on it, but its express rejection by some States. Arguing that the COP had not provided it the mandate to do so, Cuba also questioned the authority of the FCCC secretariat to collate and reflect information on those that were willing to be associated with the Accord.Footnote 89 Cuba's position is certainly defensible.
Some have argued that FCCC article 7(2) (c) read in conjunction with FCCC article 8(2) provides the secretariat with the authority to facilitate joint measures, such as the Accord, taken by Parties. While ingenious, this may not circumvent the requirement for a COP decision. Article 7(2) authorizes the COP to ‘keep under regular review the implementation of the Convention’ and to make ‘decisions necessary to promote the effective implementation of the Convention.’ And, ‘to this end’ in sub-paragraph (c) it authorizes ‘the COP to facilitate, at the request of two or more Parties, the coordination of measures adopted by them to address climate change.’ Article 8(2)(c) includes in the listing of the secretariat's functions, assistance to the Parties, on request, in ‘the compilation and communication of information required in Accordance with the provisions of the Convention.’
A careful reading reveals the difficulties of relying on these provisions. If the Copenhagen Accord is designed to promote the effective implementation of the Convention, which it arguably is, rather than merely to keep it under review, then the COP will need to take a decision to facilitate joint measures. A COP decision would need to be wrought by consensus, which, given current politics, will not be forthcoming. Second, article 8(2) (c) will, at the request of Parties, permit the secretariat to compile information on Parties' actions in so far as they are ‘in accordance with provisions of the convention’, and do not entail significant resources. If the informational burden placed on states is more onerous than that under the Convention, or if secretariat actions have significant resource implications (such as facilitation of meetings, production and translation of documents etc) a COP decision would be necessary.
In conclusion, the Copenhagen Accord which aims to be ‘operational immediately,’ cannot be uniformly operationalized as currently drafted. At a minimum, the Accord requires considerable further negotiation to flesh out the alternatives that will take the place of the understandings that currently exist in the text but were displaced as a result of COP (in)action in the early hours of 19 December 2009. Negotiators are currently engaged in this endeavour.
3. Implications of association and/or inscription
Given the tortured birthing process of the Copenhagen Accord, the legal and procedural challenges identified above are likely to be merely the tip of the iceberg. It is in this context that the requests from the Secretary General and the Danish presidency to states to express their ‘willingness to be associated with the Accord’ must be considered.Footnote 90 Needless to say, those States that participated directly in the negotiation of the Accord, as well as those that expressed support for it in plenary, are ethically and/or politically obliged to associate themselves with it. Ethical and political pressure on these states would stem presumably from the engagement of their heads of State and government in an unprecedented drafting exercise on climate change.Footnote 91 Nearly 138 States have thus far sent in letters and note verbales expressing their desire to associate with the Accord.Footnote 92 Eight States including Bolivia, Cuba, Cook Islands, Ecuador, Kuwait, Nauru, Tuvalu and Venezuela have either explicitly or implicitly distanced themselves from the Accord. Kuwait did so because in its view the Accord has no legal standing in the FCCC processes.Footnote 93 Nauru concurs but in addition argues that key substantive elements of the Accord conflict with the AOSIS Climate Change Declaration, 2009, and would place small island developing states at an unacceptable risk.Footnote 94
The BASIC countries, in the first instance, submitted their domestic mitigation actions (for ‘information’) but without explicitly associating themselves with the Accord.Footnote 95 On being requested to do so by the FCCC Secretariat, Brazil and South Africa promptly clarified that they wished to be associated with the Accord,Footnote 96 but China and India deliberated for a few weeks before responding in the affirmative. Both China and India had expressed support for the Accord in submissions under the LCA, and ‘demonstrated commitment’Footnote 97 through their submissions on domestic mitigation actions, yet left their ‘association’ with the Accord unclear. South Africa believes that a presumption of association is in operation in relation to those countries that negotiated the Accord.Footnote 98 If this interpretation is to prevail silence on association is inconsequential. This interpretation, however, may be rather simplistic. The Accord was negotiated on the premise that it would be endorsed by the COP. Given that this did not come to pass, and that numerous operational concerns arise thereto, any presumption of association, had it existed at the outset, cannot remain. China and India's initially equivocal stance on association leads one to enquire—what association entails or is perceived as entailing?
Some countries harbour the fear that association could be perceived as a unilateral declaration creating legal obligations.Footnote 99 This fear however is largely misplaced. For unilateral declarations to create legal obligations the intent of the State—to undertake legal obligations—must be clear.Footnote 100 Moreover, the attribution of intent to a State's unilateral statements ‘should be subject to strict conditions’ and ‘the fulfilment of the most stringent criteria.’Footnote 101 The FCCC secretariat has clarified, on being requested to do so by several Parties, that the Copenhagen Accord has ‘no legal standing within the UNFCCC process, even if some countries choose to associate with it.’Footnote 102 As such, States have reason to believe that their association will not lead to legal obligations. In any case, many Parties have in their submissions explicitly characterized the Accord as a political instrument and their inscribed mitigation actions as both voluntary and conditional on actions by others.Footnote 103 In the circumstances, and given the many uncertainties in the Accord, it would be far-fetched to infer that Parties choosing to associate with the Accord intend to legally bind themselves to its terms.
Nevertheless, certain consequences do flow from association. The Accord is a seriously negotiated instrument. Notwithstanding its ambiguous legal status and uncertain future in the climate negotiations, it creates principled expectations of those who participated in its negotiation, and those who associate with it thereafter. It was perhaps in recognition of these principled expectations that fall on States, that many have explained, qualified, and conditioned their association, and the fulfilment of their submitted targets or actions. A blanket association with the Accord could imply not just that States cannot take positions (in the negotiations) or actions (on the ground) that run counter to the Accord but also arguably that they are obliged to implement the Accord independent of the enabling circumstances. Developing countries may be expected to comply with the requirements placed on them in the Accord and the actions they have put forward in the absence of predictable and assured support to do so. As a result, many developing countries, including all the BASIC countries, refer in their submissions to FCCC article 4(7) which links the fulfilment of developing country commitments to the provision of support by developed countries.Footnote 104 Developed countries have also made their targets conditional on for instance, the achievement of a ‘global’ and ‘comprehensive’Footnote 105 agreement, ‘legally binding obligations’ by ‘all major emitters,’Footnote 106 or on the passage of domestic legislation in their ownFootnote 107 or another country.Footnote 108 The conditions accompanying Parties' inscriptions—developed countries seeking ‘comparability,’ and developing countries seeking to make their actions ‘voluntary’ and conditioned on provision of support—have indeed unravelled the compromises underlying the Accord.
China and India's initially equivocal stance on association, given they have submitted mitigation actions, since inscribed in Appendix II, suggests that they perceive provision of information on mitigation actions as distinct, and less problematic, than association with the Accord. There are at least two reasons why this may be so. First, the obligation to provide information flows directly from FCCC provisions,Footnote 109 and is not unique to the Accord. The mere submission of information therefore cannot be said to amount to association with the Accord. Secondly, the FCCC secretariat's role in the collation of information under the Appendices of the Accord is, as discussed above, disputed, but under the FCCC it is on firm ground.Footnote 110 The information submitted by Parties can be bundled together into a ‘miscellaneous’ document, or synthesized into an ‘information’ document. Indeed, many of the targets developed countries have submitted under Appendix I of the Accord, have in one form or another, albeit prefaced with caveats, been submitted before.Footnote 111
A practical consequence of equivocal association may be that the delivery of promised funding under the Accord is not forthcoming, but there appears to be a divergence of views among developed countries on this.Footnote 112
E. The Winding Road from Copenhagen to Cancun
The Copenhagen Accord, for all its imperfections, has dominated much of the popular and political discourse in the aftermath of the Copenhagen conference. The Accord, however, does not represent the ‘agreed outcome’ mandated by the Bali Action Plan.Footnote 113 The ‘agreed outcome’ of the two-year process, the ad hoc working group on long-term cooperative action (AWG-LCA), launched by the Bali Action Plan in December 2007 is a COP decision that extends the mandate of the AWG-LCA, and imposes a new deadline of COP-16, scheduled to be held in November-December 2010 in Mexico.Footnote 114 The AWG-LCA was tasked with continuing on the basis of the work that had been undertaken thus far.Footnote 115 The work under the ad hoc working group on the Kyoto Protocol (AWG-KP) to arrive at targets for Kyoto developed countries is also set to continue.Footnote 116 The work undertaken thus far is considerable—reams of party proposals, months of painstaking negotiations, and numerous versions of negotiating texts under both tracks.
The road ahead is likely to be a difficult one, for the Copenhagen Accord did not settle any of the fundamental cleavages that currently exist: the fate of the Kyoto Protocol; the legal form and architecture of the future legal regime; and the nature and extent of differential treatment between developed and developing States. The Bali Action Plan which launched the process towards an ‘agreed outcome’ in Copenhagen left the legal form as well as the ambition of that outcome uncertain. By June 2009, in compliance with the six month rule,Footnote 117 five agreements—Protocols from Japan,Footnote 118 Australia,Footnote 119 Tuvalu,Footnote 120 and Costa RicaFootnote 121 and an Implementing Agreement from the United StatesFootnote 122—were submitted for communication to Parties and appeared on the agenda of COP –15. These were not discussed at Copenhagen for want of agreement on how and in what depth to consider these instruments, given the ongoing negotiations on the LCA and KP tracks. While it had become clear by June 2009 that some countries favoured a new legally binding instrument under the Framework Convention on Climate Change, the fate of the Kyoto Protocol and its relationship to such a new agreement remained ambiguous.
Much of the popular reportage has assumed—inaccurately—that the Kyoto Protocol expires in 2012,Footnote 123 but it was not until the Bangkok negotiations in October 2009 that this was formally mooted as a possibility. The EU argued in Bangkok for a single integrated instrument that would build on and strengthen the Kyoto architecture by incorporating key elements of the Kyoto Protocol.Footnote 124 The EU was not alone in its bid. Australia, Canada, Japan, New Zealand and Russia had indicated in informal consultations in June that they preferred a single instrument. These countries favour a single integrated instrument that replaces the Kyoto Protocol which would, in their view, ensure greater participation and therefore effectiveness of the climate regime. This would in particular ensure the participation of the United States that is responsible for 20 per cent of the world's annual emissions and 30 per cent of historical emissions (1900–2000).Footnote 125 The United States has long considered the Kyoto Protocol to be ‘ineffective and unfair,’ in part because it does not include mitigation commitments for major ‘population centers’ such as China and India.Footnote 126 It has also in the recent negotiations proven resistant to the charm of Kyoto's accounting and compliance rules. The United States is unlikely ratify the Kyoto Protocol, even if comprehensively amended. Lending credence to this assessment, in the recently concluded Bonn climate talks the United States opposed proposals for a ‘common space’—between the Kyoto Protocol and LCA tracks—to discuss the ambition of aggregate developed country emission reductions.Footnote 127 Since other developed countries consider it essential that they are in the same legal instrument as the United States—subject to the same flexibility and constraints (or lack thereof) —they are willing to transition to a new integrated instrument. Developed countries are also arguing for a single integrated instrument because they view the two-track process to be burdensome and unwieldy. A new instrument incorporating key elements of the Kyoto Protocol, they believe, would ensure greater policy coherence and institutional coordination in the climate regime. Their position is ultimately based on the political judgment that if they were to transition to a single integrated outcome which captures market-friendly elements of the Kyoto Protocol, permits flexible approaches tailored to national circumstances, and defers to domestic political constraints, the United States will participate in it.
The G-77/China is, however, opposed to a single integrated instrument as this instrument is likely, given emerging political realities, to have a fundamentally different character to that of the Kyoto Protocol. It is likely to reflect a bottom-up rather than top-down approach, to breach the perceived Bali ‘firewall,’Footnote 128 and to cherry-pick from the Kyoto Protocol,Footnote 129 in the process altering, they fear, the balance of responsibilities in the climate regime. They are also concerned that in the process of transitioning to a single integrated instrument, many key elements of the Kyoto Protocol, in particular, the compliance system, will be abandoned, and that other rules will be diluted.Footnote 130
The Copenhagen Accord did not resolve these fundamental cleavages between Parties. On the fate of the Kyoto Protocol, it was silent. The only reference to the Kyoto Protocol occurred in paragraph 4 relating to Annex I mitigation targets. The pertinent part reads: ‘Annex I Parties that are Party to the Kyoto Protocol will thereby further strengthen the emissions reductions initiated by the Kyoto Protocol.’Footnote 131 The careful use of the word ‘initiated’ serves to keep this provision relevant whether or not the Kyoto Protocol survives beyond its first commitment period. The CMP decision extending the work of the AWG-KP captures a resolve ‘to ensure that there is no gap between the first and second commitment periods of the Kyoto Protocol.’Footnote 132 The Accord endorses this decision in a preambular recital but does not itself explicitly support the continual of the Kyoto Protocol. The fact that this battle is yet to be fought is evident from the recent Japanese submission that reiterates its support for a ‘single, extensive and ambitious agreement.’Footnote 133 The final days of the Bonn climate talks that ended on 11 June 2010 also witnessed skirmishes between some developed (in particular Russia and Japan) and developing countries on the fate of the Kyoto Protocol.Footnote 134
The Copenhagen Accord does not offer guidance on the issue of legal form or architecture of the future climate regime either. An earlier draft of the Accord carried a paragraph requiring Parties to negotiate ‘one or more legal instruments under the Convention, ideally within six months but no later than December 2010.’Footnote 135 This disappeared in the final draft, as did a similar reference to a ‘legally binding instrument’ in the COP decision extending the work of the AWG-LCA.Footnote 136 The Accord may be perceived as tending towards a bottom-up non-prescriptive architecture, in that States self-select their targets and actions and inscribe them in the Appendices. However, the Kyoto Protocol also contains Annexes with targets. There are distinctions between the Accord and the Kyoto Protocol. First, the former is a political instrument and the latter a legal instrument., Secondly, the former allows, by necessity, self-selection of targets/actions, whereas the latter combines initial self-selection of targets and actions with subsequent international negotiation of these. The fact therefore that the Accord contains Appendices listing targets and actions by countries, does not necessarily predetermine the architecture of the future climate regime. However, it is worth noting that the Chair's revised negotiating text does pay homage to the Copenhagen Accord's bottom-up architectural format,Footnote 137 albeit with a hat tip to aggregate emission reduction goals—‘25–40 per cent from [XXXX] levels by 2020' for developed countries,Footnote 138 and ‘substantial deviation in emissions relative to the business as usual emissions in 2020 for developing countries.’Footnote 139
Finally the Accord does not provide any guidance on the differentiation debate. Admittedly, developing countries have taken several steps forward in the Bali Action Plan, and in the Accord—both in terms of agreeing to list their actions, and permitting, in whatever form, MRV of these actions.Footnote 140 However, the Accord does endorse differential treatment for developing countries in several important ways. First, Annex I countries are obliged to adopt targets, while non-Annex I countries are only required to implement mitigation actions. Footnote 141 Second, the language used to frame Annex I targets is prescriptive—‘Annex I Parties commit to …’—while the language used to frame non-Annex I mitigation actions is predictive—‘non-Annex I Parties … will implement.’Footnote 142 Moreover, non-Annex I mitigation actions are anchored in FCCC articles 4(1), and 4(7), and sustainable development. Although the Accord envisages that such mitigation actions will be undertaken ‘voluntarily and on the basis of support’ only by least developed countries and small island developing states,Footnote 143 many large developing countries have in their submissions emphasized that their submitted actions are undertaken on a ‘voluntary’ basis.Footnote 144 India in a recent submission underlines this interpretation. India notes that ‘mitigation actions of developing countries will be voluntary’ in nature, and that they ‘should under no circumstances be seen as taking on internationally legally binding commitments by these countries.’Footnote 145 Meanwhile the United States has reiterated its preference for a ‘legally binding outcome in Mexico provided that the legally binding elements in an otherwise acceptable agreement would apply in a symmetrical manner to all major economies.’Footnote 146 The US in a recent submission states that there is ‘no rationale for legal asymmetry, in the Convention of otherwise’ and that ‘all Parties have existing legally binding obligations under the Convention.’Footnote 147 This is yet another issue that awaits resolution.
F. Conclusion
The agreed outcome in Cancun in December 2010 or in Cape Town in 2011, whatever its legal form, will need to concretize and incorporate the hard-won political compromises reflected in the Copenhagen Accord, and to resolve the remaining substantive disagreements. This will be no mean task for several reasons. First, elements of the Accord are vigorously resisted by a few vocal opponents who, in a consensus-based decision-making process have amplified power. Secondly, the Accord reflected an internal balance and logic which may be difficult to replicate in the context of the unwieldy negotiating tracks and documents currently in play. Finally, the Copenhagen Accord left most substantive disagreements unresolved—in particular on the deeply divisive issue of the future (or lack thereof) of the Kyoto Protocol, the legal form and architecture of the future legal regime, and the nature and extent of differential treatment between developed and developing States. Needless to say, the multilateral negotiations on climate change are far from over, and the international community may well need to wait a while before a multilateral resolution to the climate change problem presents itself.
