III. THE MAKING AND UNMAKING OF THE COPENHAGEN ACCORD
Published online by Cambridge University Press: 03 August 2010
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), meetings, many at a Ministerial level, were convened by the G-8, the Major Economies Forum, the UN Secretary General, and Denmark, 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, the legal form and architecture of the future legal regime, and the nature and extent of differential treatment between developed and developing countries.
- Current Developments: Public International Law
- Copyright © 2010 British Institute of International and Comparative Law
1 United Nations Framework Convention on Climate Change, 29 May 1992, reprinted in 31 ILM 849 (1992) (hereinafter ‘FCCC’).
2 For references to climate change in the outcome of the last G-8 meeting, see Chair's Summary, G-8 Summit, L'Aquila, 10 July 2009, available at, http://www.g8italia2009.it/static/G8_Allegato/Chair_Summary,1.pdf.
4 See for details of the first informal thematic debate on climate change at the General Assembly, http://www.un.org/ga/president/61/follow-up/thematic-climate.shtml.
5 Further details available at, http://www.kemin.dk/the_greenland_dialogue__a_ministerial_gathering_on_climate_change_climate_change_discussions_ministers.htm.
6 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, reprinted in 37 ILM 22 (1998) (hereinafter the ‘Kyoto Protocol’).
7 Decision 1/CP.15, Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, in Report of the Conference of Parties on its fifteenth session held in Copenhagen from 7 to 19 December 2009, Addendum, Part Two: Action taken by the Conference of the Parties at its fifteenth session, FCCC/CP/2009/11/Add.1 (30 March 2010) 3.
8 Decision 1/CMP.5, Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol, in Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its fifth session, held in Copenhagen from 7 to 19 December 2009, Addendum, Part Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its fifth session, FCCC/KP/CMP/2009/21/Add.1 (30 March 2010) 3.
9 Decision 2/CP.15 Copenhagen Accord in Report of the Conference of Parties on its fifteenth session held in Copenhagen from 7 to 19 December 2009, Addendum, Part Two: Action taken by the Conference of the Parties at its fifteenth session FCCC/CP/2009/11/Add.1 (30 March 2010) 4 (hereinafter ‘Copenhagen Accord’).
10 This group included the BASIC countries—Brazil, South Africa, India and China—as well as Algeria, Australia, Bahamas, Canada, Colombia, Denmark, Ethiopia, the European Community, the European Commission, Gabon, Grenada, Indonesia, Japan, Korea, Lesotho, Maldives, Mexico, Papa New Guinea, Poland, Norway, Russia, Saudi Arabia Sudan, Sweden and the US. The UN Secretary-General was also present.
11 For an insight into the practice of convening ‘Friends of the Chair’ groups, see F Yamin and J Depledge, The International Climate Change Regime: A Guide To The Rules, Institutions And Procedures (CUP, Cambridge, 2004) 455–457.
12 The composition of ‘Friends of the Chair’ groups, while left to the discretion of the Chair, takes account of context and purpose, and derives legitimacy from its representative character. It typically has representatives from the five UN regions, across negotiating groups and tailored to the absolute number of Parties in the group. In the climate negotiations, representatives from the Alliance of Small Island States (AOSIS), the Central Asia Caucasus, Albania and Moldova (CACAM), the Environmental Integrity Group (Kazakhstan, Mexico, South Korea and Switzerland), the European Union (EU), the G-77/China, the Least Developed Countries (LDCs), and the Umbrella Group (Australia, Canada, Japan, Iceland, New Zealand, Norway, Russia, Ukraine and the US) are invited. Negotiating groups are permitted representatives in proportion to their absolute numbers. In this format, emerging groups such as the Bolivarian Alliance for the Americas (ALBA) would not have been represented unless either the Chair or the G-77/China chose to include them, which they did not. In this case the process was driven by the Presidency that chose not to include them presumably because ALBA nations are so far left of centre in the negotiations (for instance, they oppose markets), that their presence might not have permitted the emergence of a political deal. In excluding ALBA, the Presidency took the calculated but misjudged risk that they would reject the deal when it was eventually presented to the COP.
13 See eg S Coates ‘Leaders try to rescue Copenhagen Climate talks as Obama Rebukes China’ Times Online (18 December 2009).
14 See eg ‘Copenhagen Climate Summit enters Crucial Stage’ BBC News (18 December 2009). BBC, among others, had uploaded early drafts of the Accord on its website before the Accord was shared with the Conference of Parties. See, http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/091218copenhagen_accord.pdf.
15 For instance, the introduction of a Danish draft of the Copenhagen agreed outcome, a text poorly aligned to the developments and sensitivities in the negotiations, and perceived as biased towards the US. See ‘Copenhagen Climate Summit in Disarray after “Danish text” leak’ The Guardian (8 December 2009); the ‘Danish text’ available at http://www.guardian.co.uk/environment/2009/dec/08/copenhagen-climate-change.
16 ALBA emerged as an ‘alternative to the neo liberal model’ which they believe has deepened the structural asymmetries to favour the accumulation of wealth in privileged minorities, further details available at, http://www.alianzabolivariana.org/.
17 Parties have yet to agree on Rule 42 (Voting) of the draft Rules of Procedure which have been applied, with the exception of Rule 42, since 1996. In the absence of agreement, decisions are taken by consensus. See Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies in FCCC/CP/1996/2 (22 May 1996).
18 At one point the Venezuelan delegate, Claudia Salerno, raised a bloodied hand to the plenary to ask if sovereign states needed to bleed to have their voices heard. See ‘Copenhagen Summit: Undemocratic and Exclusive, says Venezuela’ (21 December 2009) available at http://www.venezuelanalysis.com/news/5019.
19 See ‘Danish PM blasted by International Media for Climate Summit failure’ Icelandic Post (1 January 2010).
21 Decision 1/CP.13, Bali Action Plan, in Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007, Addendum, Part Two: Action taken by the Conference of the Parties at its thirteenth session, FCCC/CP/2007/6/Add.1 (14 March 2008) (hereinafter ‘Bali Action Plan, 2007’).
22 Para 1, Copenhagen Accord, 2009.
23 Para 2, Copenhagen Accord, 2009.
25 See Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions—Limiting global climate change to 2 degrees Celsius—The way ahead for 2020 and beyond, COM/2007/0002 final (using the benchmark of ‘pre-industrial levels’).
26 The term ‘Annex I Parties’ refers to Parties listed in Annex I to the FCCC, 1992.
27 Paras 4 and 5, Copenhagen Accord, 2009.
28 See J Rogelj et al, ‘Copenhagen Pledges are Paltry’ (22 April 2010) 464 Nature 1126–1128.
29 FCCC art 12, read with relevant COP decisions, including Decision 10/CP.13 in FCCC/CP/2007/6/Add.1 (14 March 2008) 44 (requiring the fifth Annex I national communication to be submitted on 1 January 2010, with the view to submitting the sixth communication four years after).
30 Para 5, Copenhagen Accord, 2009.
32 Para 3, Copenhagen Accord, 2009.
33 Para 8, Copenhagen Accord, 2009.
35 Para 10, Copenhagen Accord, 2009.
36 Paras 11 and 6, Copenhagen Accord, 2009. REDD+ is short hand for para 1(b)(iii) of the Bali Action Plan, 2007, on ‘reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries.’ See (n 21).
37 Para 12, Copenhagen Accord, 2009.
38 See eg paras 5 and 8, Copenhagen Accord, 2009.
39 Letter from Brazil to the FCCC secretariat, 10 February 2010, all ‘Communications received from Parties in relation to the listing in the chapeau of the Copenhagen Accord’ are available at, http://unfccc.int/meetings/items/5276.php
40 Letter from China to the UN Secretary General and Danish Prime Minister, copies transmitted to the FCCC Executive-Secretary, 1 February 2010.
41 Letter from India to FCCC Executive-Secretary, 8 March 2010.
43 Letter from South Africa to the FCCC Executive-Secretary, 4 February 2010. See also Joint statement issued at the conclusion of the second meeting of Ministers of BASIC group, New Delhi, 24 January 2010 (characterized the Accord as a high-level political understanding of some of the contentious issues).
44 India's Submission on the work of the AWG-LCA and AWG-KP, 16 February 2010, all submissions by Parties to the AWG-LCA are available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/4578.php
46 Government of Nauru, Analysis of the Copenhagen Accord, attached to a Note Verbale from Nauru to Denmark, transmitted to the FCCC secretariat, 11 February 2010.
47 Submission of the United States of America, Organization of the Work of the AWG-LCA in 2010, 26 February 2010.
49 Statement by Prime Minister Lars Løkke Rasmussen, GLOBE Copenhagen Legislators Forum, 24 October 2009.
50 EM Lederer, ‘UN Signals Delay in Climate Change Treaty’ Associated Press (27 October 2009).
51 M von Bülow, ‘World leaders: Legally binding treaty out of reach in Copenhagen’ Humanitarian News (16 November 2009) available at http://en.cop15.dk/news.
52 A politically binding agreement pays homage to a legally binding one, in that it is precisely because states take legally binding instruments seriously that they would choose not to enter into one until they were confident that they could comply with it. J Werksman and K Herbertson characterize the Accord as politically binding and identifies ‘diplomatic responses, efforts at public shaming, withholding of discretionary funding, etc’ as examples of consequences that may flow from the breach of a politically binding instrument. J Werksman and K Herbertson, ‘The Aftermath of Copenhagen: Does International Law have a Role to Play in a Global Response to Climate Change? (2010) 25 Maryland Journal of International Law 109. The term ‘legally binding’ is typically applied to negotiated legal instruments that render a particular state conduct mandatory as well as, at least in principle, judicially enforceable. See J Brunnée ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 Leiden Journal of International Law 1, 32 (noting however that most norms that are enforceable in principle are often not enforced in practice).
53 Notification to Parties, Clarification relating to the Notification of 18 January 2010, 25 January 2010.
54 Submission by the Bolivarian Republic of Venezuela, Organización de los trabajos para el 2010 del GTECLP y GTE-KP, 14 February 2010.
55 See eg Submission by Brazil, 16 February 2010, and Letter from India to the FCCC Executive-Secretary, 8 March 2010.
56 See eg China's Submission of Views on the AWG-LCA and AWG-KP, 15 February 2010.
58 See (n 47). See (n 7) para 2, which requests the AWG-LCA to continue its work drawing on the ‘report’ of the AWG-LCA, as well as ‘work undertaken by the Conference on Parties on the basis of that report.’ It also lists in a footnote the set of documents that the LCA had worked on until COP-15, and forwarded to the COP.
59 See eg Switzerland's Submission regarding the Work Programme of the AWGs in 2010, 17 February 2010 (proposing that AWG-LCA negotiating text seek to operationalize the Copenhagen Accord in 2010).
60 Submission by Spain and the European Commission on behalf of the European Union and its Member States, 12 February 2010.
61 Text to facilitate negotiations among Parties, Note by the Chair, FCCC/AWGLCA/2010/6 (17 May 2010).
62 Advance draft of a revised text to facilitate negotiations among Parties, to be issued as an official document (FCCC/AWGLCA/2010/8) for consideration at the eleventh session of the AWG-LCA (10 June 2010). This text has now been issued as FCCC/AWGLCA/2010/8 (9 July 2010)
63 ‘Summary of the Bonn Climate Change Talks 31 May–11 June’ (14 June 2010) 12 Earth Negotiations Bulletin 472 10.
65 This section builds on L Rajamani ‘The Copenhagen Accord: Neither Fish nor Fowl’ (2010) 606 Seminar 26–29.
66 Paras 4, 5 and 8, respectively, Copenhagen Accord, 2009.
67 The only reference to Annex I and non-Annex I categories in the Bali Action Plan, 2007, occurs in para 5 which relates to the Chair and Vice-Chair of the new process.
68 Annex I to the FCCC contains a list of ‘developed country Parties and other Parties,’ Article 4(2), FCCC, 1992. Amendments to the Convention, including its annexes, require consensus for adoption, or failing consensus, a three-fourths majority vote of the Parties present and voting in the meeting, Articles 15 and 16, FCCC, 1992. The Annex I (and by extension non-Annex I) category is also arguably static in that inclusion into and exclusion from the FCCC Annexes is, in practice, a lengthy process. The experience of Turkey is a case in point. For a detailed discussion of these issues see L Rajamani, ‘From Berlin to Bali and Beyond: Killing Kyoto Softly’ (2008) 57 ICLQ 3 909.
69 See eg Submission by Japan in Views regarding the Work Programme for the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention taking into account the elements to be addressed by the group (Decision 1/CP.13), Submission from Parties, Addendum, FCCC/AWGLCA/2008/MISC.1/Add.1 (12 March 2008) 15–16, 25 (relevant factors identified include economic status, capacity to respond (eg GDP per capita), share of global emissions, emissions per capita and relative responsibility to climate change).
70 Copenhagen Accord, Draft Version, 18 December 2009, on file with the author.
72 Para 8, Copenhagen Accord, 2009.
76 The EU intends to contribute the promised resources through existing initiatives such as the Global Climate Change Alliance, bilateral channels, in particular development cooperation programmes, or through international institutions. See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘International climate policy post-Copenhagen: Acting now to reinvigorate global action on climate change’, COM(2010) 86 final, 10–11.
77 Para 5, Copenhagen Accord, 2009.
78 See 1(b)(ii), Bali Action Plan, 2007, and India argues that the term ‘measurable, reportable and verifiable’ applies only to those nationally appropriate mitigation actions that have been supported and enabled by technology, financing and capacity-building in a measurable, reportable and verifiable manner. See Rajamani (n 68).
79 Para 4, Copenhagen Accord, 2009.
80 Review of the Implementation of Commitments and of Other Provisions of the Convention, UNFCCC Guidelines On Reporting and Review, FCCC/CP/1999/7 (16 February 2000) 91–96.
81 Para 5, Copenhagen Accord, 2009.
82 Art 12(5), FCCC, 1992, read with Decision 8/CP.11, Submission of second and, where appropriate, third national communications from Parties not included in Annex I to the Convention, FCCC/CP/2005/5/Add.1 (30 March 2006).
83 Art 4(3), FCCC, 1992.
84 The Accord does express allegiance to the principles and provisions of the convention in general preambular language (recital 5), but this in itself is insufficient guarantee of the required funding.
86 FCCC Art 10(2) (a), 1992, requires the Subsidiary Body for Implementation to ‘consider’ information in National communications to ‘assess the overall aggregated effect of the steps taken by Parties in the light of the latest scientific assessments…’ This applies to all Parties. National communications from Annex I and non-Annex I countries are currently ‘consider[ed],’ and unlike for GHG inventories, there are no guidelines for ‘review’ of national communications, only guidelines on preparation. Should the Accord be implemented, national communications from non-Annex I countries will be subject to ‘consultation and analysis under clearly defined guidelines,’ while those from Annex I will be continue to be ‘consider[ed].’
88 Letter from the Prime Minister of Denmark and UN Secretary General to Heads of State and Government, 30 December 2009, on file with the author.
89 Letter from Cuba to the FCCC Executive-Secretary, 31 December 2009, on file with the author.
91 The US in their submission noted the importance of heads of State having ‘personally engaged in intensive negotiations,’ (n 48).
92 For an updated list of states that have associated with the Accord see, http://unfccc.int/home/items/5262.php.
93 Letter from Kuwait, 31 January 2010.
95 See Letter including India's domestic mitigation actions, 30 January 2010; and, Letter including China's Autonomous Domestic Mitigation Actions, 28 January 2010 (both submitting information on domestic mitigation actions without reference to the Copenhagen Accord). All letters communicating domestic mitigation actions by non-Annex I Parties have been filed under ‘Appendix II—Nationally appropriate mitigation actions of developing country Parties’ and are available at, http://unfccc.int/home/items/5265.php.
97 ‘China, India back Copenhagen Accord: UN Climate Chief’ Reuters (26 February 2010).
98 Letter from South Africa, 4 February 2010.
99 See South Centre Informal Note 52, Comments on the Copenhagen Accord, January 2010, available at, http://www.southcentre.org/.
100 The ICJ in the Nuclear Tests Case noted that ‘declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.’ However it is the intention of the State making the declaration that is determinative. If the State making the declaration intended that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking. The Nuclear Tests case emphasized that ‘[a]n undertaking of this kind, if given publicly, and with a intent to be bound, even though not made in the context of international negotiations is binding,’ 1974 ICJ Rep 253, 457.
101 Case Concerning Sections 301–310 of the Trade Act of 1974 (European Union v USA, 1999).
103 See the Letters submitting mitigation actions to Appendix I and II, available at http://unfccc.int/home/items/5262.php.
104 See eg Letters by Brazil, 29 January 2010, China, 28 January 2010, India, 30 January 2010, and South Africa, 29 January 2010.
105 See eg Letters by the EU, 28 January, 2010, New Zealand, 31 January 2010, and Norway, 29 January 2010.
106 See Letter by Russia, 29 January 2010.
107 See Letter by the US, 28 January 2010.
108 See Letter by Canada, tying their target to enacted legislation in the US, 29 January 2010.
109 FCCC arts 4(1) and 12(1).
110 FCCC art 8 (2) (b) and (c).
111 See eg Information on possible quantified emission limitation and reduction objectives from Annex I Parties, Submissions from Parties, FCCC/KP/AWG/2009/MISC.13/Add.1 (11 June 2009).
112 ‘Copenhagen ‘green fund’ depends on climate deal-EU’ Reuters (24 February 2010) (noting that according to Karl Falkenberg, Director General Environment, EU Commission, countries that did not fully support the Accord may not qualify for the funds); see contra ‘India, China resist calls to back climate pact’ Reuters (12 February 2010) (noting that the UK did not intend to limit aid to ‘associates’).
115 See Report of the Conference of Parties on its fifteenth session held in Copenhagen from 7 to 19 December 2009, and draft decisions annexed thereto, see (n 7).
116 See Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol on its tenth session, and draft decisions annexed thereto, see (n 8).
117 FCCC art 17 requires that the ‘text of any proposed protocol shall be communicated to the Parties by the secretariat at least six months before such a session.’
118 Draft protocol to the Convention prepared by the Government of Japan for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/3 (13 May 2009).
119 Draft protocol to the Convention prepared by the Government of Australia for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/5 (6 June 2009).
120 Draft protocol to the Convention presented by the Government of Tuvalu under Article 17 of the Convention, FCCC/CP/2009/4 (5 June 2009).
121 Draft protocol to the Convention prepared by the Government of Costa Rica for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/6 (8 June 2009).
122 Draft implementing agreement under the Convention prepared by the Government of the United States of America for adoption at the fifteenth session of the Conference of the Parties, FCCC/CP/2009/7 (6 June 2009).
123 The first commitment period of the Kyoto Protocol, and not the Protocol itself, comes to an end in 2012. Kyoto art 3(9) requires Parties to negotiate targets for the second commitment period. The Ad Hoc Working Group on the Kyoto Protocol—launched in 2005—is engaged in this exercise. See Consideration of Commitments for Subsequent Periods for Parties Included in Annex I to the Convention under Article 3, Paragraph 9 of the Kyoto Protocol, Decision 1/CMP.1, FCCC/KP/CMP/2005/8/Add.1 (2006).
124 Statements by Sweden, on behalf of the European Community and its member states, AWG-LCA 7 and AWG-KP 9, Bangkok Climate Change Talks, 28 September to 9 October 2009, on file with the author.
125 Contributions to Global Warming: Historic Carbon Dioxide Emissions from Fossil Fuel Combustion, 1900–1999, Earth Trends, Environmental Information, World Resources Institute, available at, http://earthtrends.wri.org/.
126 Text of a Letter From The President To Senators Hagel, Helms, Craig, And Roberts, The White House, Office of the Press Secretary, 13 March, 2001; See also Byrd Hagel Resolution, S Res 98, 25 July 1997.
128 Most developing countries perceive the Bali Action Plan as distinguishing between developed country mitigation commitments and developing country mitigation actions. The Bali Action Plan uses different formulations in paragraphs 1(b)(i) and 1(b)(ii) for developed and developing country commitments/actions, and the distinction between them has come to be characterized as the ‘firewall.’ Some, notably the US, however, perceive the Bali Action Plan as representing a bridge, rather than a firewall. See (n 21).
129 If Parties decide to terminate or supersede Kyoto they will have to determine which parts of Kyoto they would like to incorporate in the new instrument, and which parts of it they will discard. This cherry-picking is evident in the proposed Japanese Protocol (n 118) as well as in Australia's preferred one-treaty model (n 119).
130 The proposals that initially raised this spectre lie in Non-paper 28 of 2009. Non-paper 28 collates proposals, primarily from the United States, Australia, Canada and Japan that suggest a recasting of the differentiation that currently exists in the climate regime. Non-paper 28, Non-paper by the Chair, Revised Paragraphs 1–37 of Annex III to Document FCCC/AWGLCA/INF.2, 9th October 2009, available at, http://unfccc.int/meetings/ad_hoc_working_groups/lca/items/5012.php. Non-papers are unofficial documents produced during negotiating sessions containing Party proposals. Non-papers are not reproduced with the FCCC signage or translated, but important non-papers are electronically archived.
131 Emphasis added.
136 Draft decision -/CP.15, Proposal by the President, 18 December 2009, on file with the author.
140 Some scholars read this as beginning to ‘break the so-called firewall between developed and developing countries.’ D Bodansky, ‘The Copenhagen Conference: A Post-Mortem’ 104 AJIL 1. See also Werksman and Herbertson (n 52) for a similar view.
141 See paras 4 and 5, Copenhagen Accord, 2009.
143 Para 5, Copenhagen Accord, 2009.
144 See (n 95). It could be argued that there is a distinction between the term ‘voluntarily’ as used in the Accord and the term ‘voluntary’ as used by India and other BASIC countries. Arguably the former refers to discretion as to the performance or non-performance of the obligation to undertake mitigation actions, and the latter to the manner and extent of performance of the obligation to undertake mitigation actions. In this interpretation, India's position could be read as suggesting that it perceives itself as possessing complete discretion as to the manner and extent of performance of the obligation but that it does not question the existence of the obligation to take actions. LDCs and SIDS have discretion both as to performance (or lack thereof) and if they choose to perform discretion as to the manner and extent of their performance of the obligation.
145 See Submission by India to AWG-LCA on Organization and Methods of Work in 2010 (for guidance to AWG-LCA Chair for preparation of text for consideration of Parties, 30 April 2010.
146 See Submission of the United States of America, Organization of the Work of the AWG-LCA in 2010, 26 February 2010.
147 See Submission of the United States to the AWG-LCA Chair, 26 April 2010.