Climate change conference

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INTRODUCTION

The 2009 United Nations Climate Change Conference, commonly known as the Copenhagen Summit, was held at the Bella Centre in Copenhagen, Denmark, from December 7-19, 2009. The conference included the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC) and the 5th Meeting of the Parties (COP/MOP 5) to the Kyoto Protocol. The main issue under consideration in the Conference was the establishment of a framework for climate change mitigation post-2012, when the Kyoto Protocol's first commitment period ends. The major questions that were supposed to be answered by this Conference were whether there should be an extension of the Kyoto Protocol through the adoption of a second commitment period along with revised emission reduction targets for developed country parties, in which case whether a new agreement should be adopted under the UNFCCC which addresses the emissions of countries that either are not parties to the Kyoto Protocol or do not have emissions reduction targets conforming to the same or should a new agreement be adopted which replaces the Kyoto Protocol and lays down the emission reduction targets for both developed and developing country emissions, thereby being more inclusive in its coverage. The Conference was attended by more than 130 heads of state and there was an expectation among the people that the nations of the world would come together to devise an effective response to the threat of climate change. Instead, the outcome of the Copenhagen Conference was only a political agreement, the Copenhagen Accord, which was negotiated by a group of roughly 25 countries, including all of the major economies of the world. Despite widely held expectations that the Copenhagen Summit would result into a legally binding treaty, the Conference was beset with stalemate in negotiations between the countries as a consequence of which, no legal agreement could be arrived at.

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The Copenhagen Accord recognises the scientific view for limiting increase in global temperature below 2°C, but does not contain commitments for reduced emissions that would be imperative in achieving this goal. The Accord states that there should be cooperation between the developed and the developing countries in achieving the peaking of global and national emissions as soon as possible. It also recognises that the time frame for peaking will be longer in developing countries, bearing in mind that social and economic development and poverty eradication are the first and overriding priorities of such nations and that a low-emission development strategy is indispensable to sustainable development. It has also been agreed upon that developed countries shall provide adequate, predictable and sustainable financial resources, technology and capacity-building to support the implementation of measures required for adaptation to adverse effects of climate change, in developing countries. The agreement pledges US$ 30 billion to the developing countries over the next three years, rising to US$100 billion per year by 2020, in order to assist the financially backward countries adapt to climate change. Earlier proposals, which had aimed at limiting increase in global temperature to 1.5°C and cutting CO2 emissions by 80% by 2050, were dropped. The Accord also favours developed countries paying developing countries to reduce emissions from deforestation and degradation, through the establishment of a mechanism known as "REDD".[1]

Due to the opposition of countries such as Sudan, Venezuela, Bolivia and Tuvalu, the Copenhagen Conference was unable to formally "adopt" the Accord. Instead, the Conference took "note of" the Copenhagen Accord, leaving its future status and exact legal nature uncertain.[2] The above-mentioned countries registered their objections to both the emission targets and the process by which the Copenhagen Accord was reached.[3] The Copenhagen Accord was made non-binding and is not legally enforceable, which has prompted many observers to term the Copenhagen Summit as a complete failure.[4] The Copenhagen Accord asked countries to submit emissions targets by the end of January 2010, and it paves the way for further discussions which shall take place at the 2010 UN Climate Change Conference in Mexico and the mid-year session in Bonn. By early February, 67 countries had registered their targets with the UNFCCC Secretariat, representing more than 80% of global greenhouse gas emissions, including the United States, the EU member states, Japan, China, India, Brazil, South Africa and Indonesia.[5]

EVOLUTION OF THE CLIMATE CHANGE REGIME

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The international climate change regime has its origins in the international climate change negotiations which took place for the first time in 1991. These negotiations led to the establishment of the basic framework of governance, set forth in the UN Framework Convention on Climate Change (UNFCCC), which was adopted in 1992 and entered into force two years later. From 1995 to 2001, the climate change regime dealt extensively with the negotiation and elaboration of the Kyoto Protocol, which sets forth quantitative emission reduction targets for developed countries till 2012, and establishes market-based mechanisms, including emissions trading, for achieving those targets. The principal aim of the current phase of discussions and negotiations under the international climate change regime is to address the post-2012 period i.e. the period after the Kyoto Protocol's first commitment period ends.

The climate change issue first emerged in the mid-1980s and has undergone many significant changes since then. Most of the major economies of the world have either adopted, or are seriously considering, the adoption of important domestic policies for the reduction of their greenhouse gas emissions. The European Union has already established an emissions trading system, and has pledged to reduce its emissions by 20% from 1990 levels by 2020 and by 30% as part of a global and comprehensive agreement for the post-2012 period in which other developed countries undertake comparable efforts.[6] The US House of Representatives has passed a domestic climate bill that would reduce GHG emissions by roughly 17% below 2005 levels by 2020. Both, China and India have adopted carbon intensity targets to reduce their emissions per unit GDP by 40-45% and 20-25%, respectively, from 2005 levels by 2020.

Despite global acknowledgement of the threat posed by climate change, not much progress has been made by the international climate change regime, in reaching an agreement regarding emission reduction targets which would be acceptable to both the developed and the developing countries. There have always been doubts in the international community regarding the seriousness of the United States in reducing its emission levels. Also, the requisite amount of attention has not been paid to emissions from developing countries, which already represent more than half of the global GHG emissions and will account for most of the increase in emissions between 2010 and 2050. During the first decade of the climate change regime, from the initiation of negotiations in 1991 through the adoption of the Marrakesh Accords in 2001, the negotiating process focused almost exclusively on emissions reductions by developed countries. The 1995 Berlin Mandate, which launched the Kyoto Protocol negotiations, specifically excluded any new commitments for non-Annex I countries. Even after the adoption of the Kyoto Protocol in 1997, till 2001, when the Marrakesh Conference adopted the detailed rulebook for implementing the Kyoto Protocol, the epicentre of the negotiations was the divide among developed countries between the European Union and the United States, with the EU pushing for strong emission reduction targets, implemented primarily through domestic measures, and the US pushing for the unrestricted use of market-based mechanisms, including emissions trading.

After the Marrakesh Conference, the core focus of the negotiations regarding emissions has shifted to the split between developed and developing countries. There is a visible disagreement between the two blocs regarding the level of responsibility for causing the problem of global warming through GHG emissions. Developing countries construe the problem as one of equitable sharing of development space whereas the developed countries consider it to be a techno-managerial problem which has to be solved with the aid of markets. The developed countries insist that the post-2012 regime address the emissions of all the major economies of the world- the developing as well as developed- whereas the developing countries argue that they are not historically responsible for the climate change problem, have less capacity to respond to climate change, and hence should not be expected to undertake specific international emissions reduction commitments, in compliance with the standards set by developed nations. These differences in opinion have sown the seeds of deep mutual distrust between the North and the South.

LEGAL CHARACTER UNDER THE COPENHAGEN PROCESS

The negotiations on a post-2012 climate regime have proceeded over the past several years in two tracks, one to negotiate amendments to the Kyoto Protocol, including a second round of emission targets for developed country parties i.e. Annex I countries; the other to develop an "agreed outcome" under the UNFCCC in the form of a "Long Term Cooperative Action" process for non-Annex I countries. The Kyoto Protocol track, conducted in the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP), was initiated in 2005, and does not include the United States. The Convention track was launched two years later by the Bali Action Plan, which established the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention (AWG-LCA), with the mandate to develop a comprehensive outcome, including a shared long-term vision, mitigation commitments or actions by developed countries, nationally appropriate mitigation actions (NAMAs) by developing countries, financial arrangements, measures to address adaptation and technology transfer, and a system for measurement, reporting and verification (MRV).

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The countries with Kyoto emission targets, including the EU member states, Japan, Canada, and Australia, are generally averse to accepting a new round of emission targets under the Kyoto Protocol for the post-2012 period unless the other major emitters, including the United States and China, accept legal commitments as well, and their expressed preference is for a single new comprehensive legal agreement that would replace the Kyoto Protocol. The US, also, has proposed the negotiation of a single binding agreement that would deal with both developed and developing country emissions, although it has specifically stated that such an agreement could exist alongside a post-2012 Kyoto agreement. On the other hand, the developing countries are not in favour of a one track approach concerning only the Convention track, and repeatedly insisted at the Copenhagen Conference that the Kyoto track receive equal attention and make equal progress as the Convention track. Relenting to only the Convention track would mean losing the differentiation between the Annex-I and non-Annex I parties that has been created during the Kyoto process. A new legal instrument would mean that this wall of differentiation between developed and developing countries would have to be brought down, in order to comprehensively cover the emission reduction targets of all the major economies of the world. India and China have insisted that developed country parties agree to a second commitment period under the Kyoto Protocol, but have opposed the adoption of a new legal agreement addressing their own emissions. In contrast, other developing countries, including the small island states, support the negotiation of a new legal agreement that would be more comprehensive in its coverage, including the United States and major developing countries such as China, India, and Brazil. According to these countries, this legal agreement could co-exist simultaneously alongside the Kyoto Protocol.

The developed countries tried to merge the tracks through what became known as the Australian "schedules approach" which allowed each country to inscribe its national actions in a schedule, with provision for only a soft form of differentiation by action - economy-wide commitments versus a range of national actions - between Annex 1 and non-Annex 1 countries. Developing countries pressed hard for their demand regarding a second commitment period for the Kyoto Protocol and used procedural obstacles and walkouts to this effect.[7]

The resolution of the Copenhagen Accord has left both options open, but is slightly inclined towards the former over the latter approach.[8] The Accord allows for two schedules, one which will contain economy-wide emission targets by Annex 1 countries, and the other which will document mitigation actions by non-Annex 1 countries. Negotiation on both tracks - Kyoto Protocol and LCA - is to continue, leaving open the possibility of a second commitment period for the Kyoto Protocol. Developing countries have made attempts to maintain the differentiation angle by linking their schedule to Article 4.1 of the Convention, which provides for far less stringent action than Article 4.2, which covers actions by non-Annex 1 countries. In brief, in response to the challenge of reconciling differentiation and comparability between the developed and developing bloc of nations, the Copenhagen Accord has used the schedule approach to reduce the significance of differentiation between the countries and has ensured comparability by harmonising downward to the Kyoto Protocol and making less legally stringent necessary actions by all countries.[9]

LEGAL AND POLITICAL IMPLICATIONS OF THE COPENHAGEN ACCORD

The Copenhagen Accord is the document that the delegates at the United Nations Climate Change Conference (UNCCC) agreed to "take note of" at the final plenary session of the Conference on December 18, 2009. It is a draft COP decision and, when approved, shall be operational immediately. It is more of a political rather than a legal document and it was negotiated by a group of about 25 heads of state, heads of government, ministers, and other heads of delegations. The main features of the Copenhagen Accord have been discussed in the following paragraphs.

LONG TERM GOALS OF EMISSION REDUCTION AND TEMPERATURE INCREASE

The UNFCCC has defined the objective of the climate change regime as "to prevent dangerous anthropogenic interference with the climate system"[10], but is silent regarding the level of emission cuts that would be necessary, for this purpose.

Under the Bali Action Plan, the purpose of further negotiations was to establish "a shared vision for long-term cooperative action, including a long-term global goal for emission reductions."[11] It included proposals for setting an upper limit on global temperature increase of 1.5-2° Celsius and an upper limit on atmospheric concentrations of greenhouse gases of 350 or 450 parts per million (ppm), establishing a long-term goal to reduce global emissions by 50% by 2050 and laying down a target date for the peaking of global emissions which would include target dates for the peaking of emissions of both developed and developing countries.

In Copenhagen, developing countries vehemently opposed the idea of setting a date for the peaking of their emissions, and also resisted the adoption of the long-term goal for reduction of global emissions or a greenhouse gas concentration target because of the implications these would have for their own emissions. As a result of this, the Accord only recognises that "deep cuts in global emissions are required according to science" and agrees cooperation in peaking global and national greenhouse gas emissions "as soon as possible" and that "a low-emission development strategy is indispensable to sustainable development"[12].

In order to placate those countries which were rooting for a 1.5° Celsius limit on global temperature increase, the Copenhagen Accord calls for "an assessment of the implementation of this Accord to be completed by 2015"[13] which would include consideration of strengthening the long-term goals through measures such as, limiting temperature increase to 1.5° Celsius.

Thus, the Copenhagen Accord recognises the need for limiting global temperature increase to 2° Celsius but does not elaborate on how this would be achieved. It also talks about equity in emission reduction but does not define clearly how equity considerations are to be addressed, what it means, and the modalities for achieving equity.

DEVELOPED COUNTRY MITIGATION

Over the past year, a general consensus has emerged under the climate change regime that developed countries should undertake economy-wide emissions targets for the post-2012 period, there have been differences in opinion regarding various issues. Primarily, the stringency of these emissions limitation targets has been widely debated and disputed. Also, another issue of contention is the base-year from which emissions targets should be measured. Confusion has reigned as to whether the base-year should be taken as 1990 as the Kyoto Protocol provides or some other alternative year. The US climate legislation has taken 2005 as the base-year whereas Australia's emission reduction commitments are centred around 2000 as the base-year.

Under the Copenhagen Accord each Annex I party has been allowed to define its own target level, base-year and accounting rules, and these parties have to submit their respective targets in a defined format, for compilation by the UNFCCC Secretariat. Under the terms of the Accord, Annex I countries "commit to implement" their targets, individually or jointly, subject to international monitoring, reporting and verification (MRV).[14]

Thus, the Accord merely requests Annex I Parties to submit the national emission reduction target that they are prepared to agree to and there is no aggregate mid-term emission reduction commitment for developed countries that is commensurate to the science and the development needs of developing countries. Also, there is no reference point that the individual mitigation targets of the Annex I Parties, are supposed to collectively achieve. Since each country is free to submit its own national emission reduction target, without such target being subjected to agreement by all Convention Parties, irrespective of the adequacy of such a target, it encourages low levels of national and aggregate mitigation on the part of the Annex I Parties. Thus, there is no obligation on the part of developed countries to ensure that their individual national mitigation targets are comparable with each other in terms of figures, legal nature, and timeframes. Also, these individual national mitigation commitments are not covered within the framework of a legally binding treaty instrument which is consistent with the provisions of the UNFCCC, since the Copenhagen Accord is not legally binding.

DEVELOPING COUNTRY MITIGATION

Similarly, over the last few years, there has been widespread agreement that those Nationally Appropriate Mitigation Actions (NAMAs) of the developing countries which receive international support in the form of financial aid should be subject to some type of international review mechanism in order to ensure that the funds are actually having some positive effect on climate change mitigation in these countries. There have been calls for the establishment of a "matching mechanism" to link developing country proposals for NAMAs with financial aid by developed countries for this purpose. This issue has been addressed in the Copenhagen Accord, which establishes a registry for listing NAMAs for which support is sought, and provides that supported NAMAs "will be subject to international measurement, reporting and verification in accordance with guidelines adopted by the COP".[15]

The key issues of contention regarding developing country mitigation have related to "autonomous" mitigation actions which are emission reduction measures that do not receive any financial support from developed countries. The prime question for consideration in such actions is whether these measures should be purely a matter of national discretion, subject only to national reporting and verification or should they be internationalised by subjecting them to some form of international review by the establishment of certain international bodies for this specific purpose, under the international climate change regime. Another major issue is whether the end result of mitigation actions undertaken by a developing country, both autonomous and supported, should add up to a particular quantitative reduction in emission levels, as fixed by the international climate change regime.

In Copenhagen, these issues relating to developing country mitigation became the principal bone of contention between the United States and China, with the United States and many other developed countries insisting on measurement, reporting, and some form of international review and China rejecting all such proposals for an international review. For developing country emissions targets, the Copenhagen Accord establishes a process by which developing countries will submit their proposals for mitigation actions, including both autonomous and supported, in a defined format, for compilation by the UNFCCC Secretariat. It provides that Non-Annex I parties "will implement" these actions and that developing country mitigation actions will be subject to domestic MRV and that developing countries will report on the results of this domestic MRV in biennial national communications, with provisions for "international consultation and analysis under clearly defined guidelines that will ensure that national sovereignty is respected".[16]

FINANCIAL ASSISTANCE TO DEVELOPING COUNTRIES

There has been general agreement between the states of the world that financial assistance will have to be extended to developing countries in order to help them mitigate and adapt to climate change. The US and other developed countries conceptualise this financial assistance as part of an implied consideration in exchange for climate change mitigation commitments from the developing countries. In contrast, the developing countries strongly believe that this financial assistance is a payment of the "carbon debt" that the developed countries owe to them for their greater level of emissions throughout the history of the industrialised era.

The Copenhagen Accord creates a "collective commitment" for developed countries to provide "new and additional resources ... approaching $30 billion" in "fast start" money for the 2010-2012 period, balanced between adaptation and mitigation, and sets a longer-term collective "goal" of mobilizing $100 billion per year by 2020 from a "wide variety" of sources including public and private, bilateral and multilateral, but links this money to "meaningful mitigation actions and transparency on implementation".[17] It calls for the delivery of new multilateral funding for adaptation, with a governance structure to ensure transparency in the implementation of mitigation actions. It is silent on the structure of such a governance arrangement. Finally, it calls for the establishment of a Copenhagen Green Climate Fund, as an operating entity of the financial mechanism, "to support projects, programme, policies and other activities in developing countries related to mitigation".[18] For this purpose, it suggests the creation of a High Level Panel "to consider potential sources of revenue in order to meet the $100 billion per year goal".[19] It also provides that a "significant portion" of international funding should flow through the Copenhagen Green Climate Fund.[20] It also talks of providing developing countries, especially those with low-emitting economies with "incentives to continue to develop on a low emission pathway".[21]

The Accord has not dealt with the subject of sources of these financial grants and government arrangements regarding the aid that is to be provided to developing countries. There is no agreement on how much, individual countries would contribute to or benefit from any funds.

Thus, the Copenhagen Accord fails to spell out clearly the commitments of developed countries to provide financial support to developing countries for climate change related mitigation and adaptation actions. These commitments have been left conditional and highly ambiguous and uncertain as to quantum, source, modality, institutional architecture, and channel of delivery and access. Also, the developed countries hint at a bias towards low-emitting economies, by promising incentives to them.

IMPLEMENTATION OF REDD-PLUS

With respect to the potential to reduce emissions from deforestation and forest degradation (known as "REDD-plus") the most important subject of discussion has been the financing of REDD-plus. There have been debates regarding whether REDD-plus should be financed from public funds or by providing carbon credits. The Copenhagen Accord calls for the "immediate establishment" of a mechanism to help mobilize resources for REDD-plus from developed countries and acknowledges the "need to provide positive incentives",[22] but does not resolve the issue of the method of financing REDD-plus. The source of financing REDD-plus is still not clear.

CLIMATE CHANGE ADAPTATION

The Copenhagen Accord recognizes the "urgent" need for "enhanced action and international cooperation on adaptation," and agrees that "developed countries shall provide adequate, predictable and sustainable financial resources, technology and capacity-building" to help implement developing country adaptation actions.[23]

MONITORING, REPORTING AND VERIFICATION

The Copenhagen Accord calls for "rigorous, robust and transparent" Monitoring, Reporting and Verification (MRV) of Annex I emissions reductions and financing, "in accordance with existing and any further guidelines adopted by the COP".[24] The NAMAs of the developing countries, which are receiving international support, shall be subject to international MRV "in accordance with guidelines adopted by the COP," while autonomous mitigation actions will be verified nationally and reported in national communications to the UNFCCC Secretariat every two years, and will be subject to "international consultations and analysis" under international guidelines which take due note of the protection of national sovereignty.[25]

Here the Copenhagen Accord creates the potential for changing the balance of obligations under the UNFCCC by laying the basis for a new set of mitigation and MRV obligations for developing countries that weakens the principle of common but differentiated responsibilities and respective capabilities in the UNFCCC. By linking financial support to reporting and by introducing international reviewing procedure in the form of national communications by developing countries, the developed countries have tried to do away with the concept of differentiated responsibilities and have instead, replaced it with a form of equal responsibilities.

LEGAL FORM OF THE POST-2012 REGIME

The Copenhagen Accord steers clear of the issues about the legal form and legal character of the post-2012 climate regime. The penultimate draft of the COP decision accompanying the Copenhagen Accord had called for the completion of negotiations on a new "legally binding instrument" at the UNFCCC Conference in Mexico City in 2010, but this reference was removed from the final version. As a result of this, no decision was taken on whether to agree to a legally binding successor or complement to the Kyoto Protocol.

LEGAL STATUS OF THE COPENHAGEN ACCORD

COPENHAGEN ACCORD MERELY "TAKEN NOTE OF"

The Copenhagen Accord was not adopted by the Conference but was merely "taken note of". Many Parties that were not part of the group that negotiated the Copenhagen Accord had objections with respect to both the procedural aspects and the substantive content of the Copenhagen Accord, which eventually resulted in the "takes note" decision by the COP.

This means that, in accordance with the practice of the United Nations, the COP was neutral and neither approved nor disapproved the Copenhagen Accord.[26] It also means that the Copenhagen Accord per se is not an official outcome of COP15 and was produced external to COP procedures, since the COP only notes its existence and did not take any decision to incorporate it into the body of COP decisions or other documents coming out of COP15 as a document that is officially agreed to by the COP. During the final plenary of COP15, various countries insisted that the Accord should not bear the logo of the UNFCCC as it is not, per se, an official outcome document of COP15 but rather is an external document whose existence is only "noted" by the COP.

THE MEANING OF ASSOCIATION WITH THE COPENHAGEN ACCORD

On December 30, 2009 Denmark "in its capacity as COP15 Presidency" circulated a note verbale to the permanent missions of United Nations Member States in New York inviting UNFCCC Parties "to inform the UNFCCC Secretariat in a written form at their earliest convenience of their willingness to be associated with the Copenhagen Accord." The note verbale also indicated that "in completing the report of COP15, the UNFCCC Secretariat will list the Parties to the Convention that have expressed their willingness to be associated with this Accord."

The legal authority of Denmark as COP15 President on its own to invite UNFCCC Parties to "associate" themselves with the Copenhagen Accord is questionable. Under the COP's 1996 Rules of Procedure, it is not within the COP President's powers and functions to invite Parties to undertake any proactive actions in relation to any document or instrument that is external to the COP process.[27]

THE INTERNATIONAL LAW EFFECT OF THE TERM "ASSOCIATION"

The developed countries have stated that the Copenhagen Accord is a politically binding agreement among those countries that are part of it and that is intended to shape how these countries act in terms of addressing climate change. But the heads of state/government level nature of the negotiation process for the Copenhagen Accord, its actual final status vis-à-vis COP15 and its work, and especially the subsequent "association" process for it triggered by the Danish Presidency's invitation, all create a situation in which the Copenhagen Accord becomes an instrument that creates certain international law obligations for the countries that associate themselves with it.

"Association" with the Copenhagen Accord in writing, as requested by the Danish Presidency, would essentially be a unilateral declaration on the part of the associating Party of its willingness to be bound - in both political and international law terms - to the provisions of the Copenhagen Accord. This would lead to the creation of international law obligations under the Copenhagen Accord for the associating parties. Even if it would not result in the same, the Copenhagen Accord would definitely be seen as an international political commitment on the part of the associating parties which would form the basis for their political negotiating positions for any further international policymaking relating to climate change in other forums, including in the UNFCCC. It would make the associating parties subject to more stringent MRV modalities without obtaining the corresponding benefits from it such as full and effective implementation of developed countries' UNFCCC obligations to provide financing and technology. Also, it would impose constraints on the negotiating and policy space of the associating parties in the continuing negotiations in the AWG-LCA and AWG-KP. Association with the Accord would imply association with the inconsistencies to the principles and provisions of the UNFCCC and its Kyoto Protocol that the Accord contains, thereby also implying agreement that such principles and provisions will not be fully and effectively implemented or may in fact be derogated from, especially by developed countries.

THE ABSENCE OF DEADLINES

No deadline was stated in the Danish note verbale as to by when the Parties should indicate their willingness to be associated with the Copenhagen Accord, in writing. No date was also mentioned regarding when the UNFCCC Secretariat is to finish its COP15 report. The absence of dates seems to indicate that the period for associating with the Copenhagen Accord could be for virtually the entire duration of the Danish COP15 Presidency including any extraordinary sessions that may take place, any negotiating meetings, and up to the opening of COP16 in Mexico in late November 2010. It also points towards an open-ended "association" process which would run virtually for a year, in which the Danish Presidency and other developed countries that have agreed to the Copenhagen Accord, could seek to add more Parties to it and then present it later on, in the context of the negotiations for the outcome of COP16 as an official instrument that binds, at least politically, those countries that have so associated themselves with the Copenhagen Accord.

CONCLUSION

The Copenhagen Accord has been criticized by many climate change experts as inadequate and insufficient.[28] [29] The primary failure of the Copenhagen Accord is that it is not a legally binding document. Also, the fact that it was "taken note of" instead of being adopted, is another negative. The Accord sets no real targets to achieve in emissions reductions.

Enough emphasis was not placed on the transfer of renewable energy technology which would assist developing countries with the damage caused by climate change and allow them to lower their own carbon emissions. Parties are required to engage in technology transfer from developed to developing countries but at this point there has been little focus on establishing what technology needs to be transferred and why it is not being transferred currently.

The emission reduction pledges announced so far do not go a long way in limiting temperature rise to 2° C. Also, the contents of the Accord are imbalanced and in many ways have negative implications for developing countries. An attempt has been made through the Accord to discard the principle of common but differentiated responsibilities and respective capabilities. There is also an implicit denial of the historical responsibility of developed countries for anthropogenic global warming which could imply a denial by developed countries of their obligation to provide financial resources, transfer of technology and meeting costs of adaptation to developing countries. Also, "associating" with the Accord would have serious legal and political implications for the developing countries, in the form of international commitments.

The Copenhagen Accord lays the foundation for weakening the Kyoto Protocol as the multilateral treaty instrument for developed countries' binding emission reduction commitments and developing countries will also have to weigh the serious consequences of whether to associate with a document that in practical terms does away with the Kyoto Protocol and its most essential elements, and which contradicts and undermines key principles of the UNFCCC, including that of common but differentiated responsibilities, and which will disadvantage developing countries in many ways.

On the positive side, the participating states agreed to list their national actions internationally and to subject their actions to some form of international review. The Accord establishes the long-term goal of holding global warming below 2° C, for the first time and provides significant funds to developing countries for climate change mitigation and adaptation.[30] For the first time, the major developing countries agreed to internationalise their national climate change policies by reflecting their national emissions reduction pledges in an international instrument, reporting on their GHG inventories and their mitigation actions in biennial national communications, and subjecting their actions either to MRV for internationally supported actions or "international consultation and analysis under clearly defined guidelines that will ensure that national sovereignty is respected" for domestically supported actions.

Thus, the Copenhagen Accord cannot be termed as either an abject failure or a smashing success and it can definitely not be regarded as the conclusion of the climate change debate. Rather, the Copenhagen Accord can be considered to be the first step towards the negotiation of a global treaty which can effectively address the concerns of both the developed and the developing countries.

  1. Chris Papanicolaou; Lauren Fendick, "Copenhagen summit fails to produce new global climate change treaty". Jones Day, January 25, 2010, available at http://www.lexology.com/library/detail.aspx?g=456748b1-18cc-47c9-a3c7-71004b1f0f69.
  2. South Centre's Comments on the Copenhagen Accord: Contents and Legal Aspects available at http://www.southcentre.org/index.php?option=com_content&task=view&id=1236&Itemid=287
  3. Nick Buxton, "Transnational Institute: Bolivia provides resistance and hope at Brokenhagen", January 8, 2010, available at http://www.tni.org/article/bolivia-provides-resistance-and-hope-brokenhagen.
  4. John Vidal, "Rich and poor countries blame each other for failure of Copenhagen deal", THE GUARDIAN, December 9, 2009.
  5. UNFCCC: Information provided by Parties to the Convention relating to the Copenhagen Accord
  6. "EU reaches deal on emissions cuts", February 20, 2007, available at http://news.bbc.co.uk/2/hi/6377983.stm
  7. Navroz K. Dubash, "Copenhagen: Climate of Mistrust", 44 ECONOMIC & POLITICAL WEEKLY 8, 10, December 29, 2009.
  8. Id.
  9. Id.
  10. UNFCCC Article 2.
  11. Bali Action Plan, Para. 1(a).
  12. Copenhagen Accord, Para 2.
  13. Copenhagen Accord, Para 12.
  14. Copenhagen Accord, Para 4.
  15. Copenhagen Accord, Para 5.
  16. Id.
  17. Copenhagen Accord, Para 8.
  18. Copenhagen Accord, Para 10.
  19. Copenhagen Accord, Para 9.
  20. Copenhagen Accord, Para 8.
  21. Copenhagen Accord, Para 7.
  22. Copenhagen Accord, Para 6.
  23. Copenhagen Accord, Para 3.
  24. Copenhagen Accord, Para 4.
  25. Copenhagen Accord, Para 5.
  26. In the annex to its Decision 55/488, adopted on 7 September 2001, the General Assembly reiterated "that the terms 'take note of' and 'notes' are neutral terms that constitute neither approval nor disapproval". This decision and interpretation has been reiterated by the General Assembly on many occasions since then.
  27. The only possible exception to this could be if the COP Presidency is explicitly mandated by the COP to undertake such action. However, during COP15's final plenary session in the afternoon of 19 December 2009, no consensus was reached at the COP as to how the Copenhagen Accord would be further acted upon by the Parties.
  28. Lavanya Rajamani, "Neither Fish Nor Fowl", February 2010, available at http://www.cprindia.org.
  29. Benito Muller, "Failure or Wake-up Call for Our Leaders", Oxford Institute for Energy Studies, February 2010, available at http://www.oxfordenergy.org/pdfs/EV49.pdf.
  30. David Doniger, "The Copenhagen Accord: A Big Step Forward", December 21, 2009, available at http://switchboard.nrdc.org.