The Copenhagen Accord and the future of the international climate change regime

AutorFrancesco Sindico
CargoLecturer, University of Surrey (Guildford, UK)
Páginas1-24

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I Introduction

The fifteenth Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC) and the fifth Meeting of the Parties (COP/MOP) of the Kyoto Protocol took place in Copenhagen from 7 to 18 December 2009. More than 50.000 participants were accredited and 120 Heads of State and Governments participated in the high level segment making the Copenhagen Conference the highest profile meeting of any multilateral environmental agreement. In this paper I will focus only on the Copenhagen Accord and, in particular, on how it deals with mitigation. I will assess

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it from an environmental, legal and political point of view in order to draw some conclusions on the future of the international climate change regime1.

II The copenhagen accord

International climate change negotiations have followed two parallel tracks in the last years: one under the UNFCCC and the other under the Kyoto Protocol. The first track was launched in Bali, at the thirteenth COP of the UNFCCC, and countries were meant to devise ways to achieve "full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012"2. Under the second track countries have been negotiating ways to enhance further Kyoto Protocol Annex I Parties’ obligations3.

Both tracks should have ended at the Copenhagen Conference, but it was clear in the meetings prior to COP15 and COP/MOP5 that this would not be achieved4. While some countries, and the EU in particular, were aiming for a new legally binding international treaty, still there was hope to be able to secure, at least, a range of COP decisions that would have been able to guide the negotiations further in the aftermath of Copenhagen. These hopes were also frustrated when, at the end of the two weeks of negotiations, a rather small (albeit influential) group of countries was able to broker the Copenhagen Accord, which is not a COP decision. Decision -/CP.15 "takes note of the Copenhagen Accord".

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I will now move on and assess the Copenhagen Accord from an environmental, legal and political parameter in order to determine whether the outcomes of the talks in Copenhagen can be hailed as a success or a failure.

1. The environmental integrity of the Copenhagen Accord

For an international regime to properly tackle climate change it needs to meet the final objective of the UNFCCC, which is to prevent dangerous climate change5. According to most scientific reports an overall increase in the world’s temperature above 1.5 degrees will lead to dangerous climate change. The Intergovernmental Panel on Climate Change (IPCC) has suggested in its Fourth Assessment Report that a reduction in the range of 25 to 40% from 1990 levels is needed in order to avoid this6. Does the Copenhagen Accord set this environmental target and does it provide the necessary tools to achieve it?

The answer is no. On the one hand, the goal of the States that have affiliated themselves to the Copenhagen Accord is not to limit the overall temperature increase to 1.5 degrees, but "to hold the increase in global temperature below 2 degrees Celsius"7. One has to acknowledge that countries were aware that "deep cuts in global emissions are required according to science",8but no mention of specific cuts has been included in the Copenhagen Accord. Furthermore, by making an explicit reference to the need for revising the Copenhagen Accord in 2015 in order to consider ways to achieve a maximum increase of 1.5 degrees9, the document shows a current lack of ambition from an environmental perspective. In sum, contrary to the Kyoto Protocol where a specific cap was established

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(5% reduction from 1990 levels)10, the Copenhagen Accord refers very loosely to reductions in emissions necessary to avoid a 2.0 degree increase in overall temperatures taking into account the general objective of the UNFCCC, but it does not establish any specific cap.

On the other hand, the Copenhagen Accord has created a bottom up approach to mitigate climate change. The Kyoto Protocol not only established a general cap, baseline and base year, but it also indicated how much each Annex I Party had to reduce in the 2008-2012 commitment period11. The Copenhagen Accord enshrines a much more flexible approach in as far as it gives each State, both industrialized and developing, the possibility to decide its level of climate change mitigation ambition12. This bottom up approach is the content of the so called "pledges" that all countries that decide to affiliate themselves to the Copenhagen Accord were asked to submit to the UNFCCC Secretariat by 31 January 201013. Annexes II and III of this article include excerpts of the pledges from key States, whose action in relation to climate change mitigation will be critical to tackle climate change efficiently.

Leaving aside for the moment the nature of these pledges, the environmental integrity of a regime based on the Copenhagen Accord would depend on whether the compliance with the emissions reductions level provided for in the pledges would actually limit an overall increase in temperatures to 2.0 degrees (or even better, 1.5 degrees). This does not seem to be the case. On the one hand, the first analysis of the pledges shows that, even if they were complied with, they would not deliver the necessary emission reductions needed to avoid dangerous climate change14. On the other hand, most of these pledges are conditional on

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similar climate change mitigation action taken by other countries, as is the case of the EU15, or, as in the case of the Russian federation and South Africa16, conditional on the nature of future emission reduction obligations.

This last point leads us to assess the nature of the obligations provided for in the Copenhagen Accord in order to determine whether they can be considered to be legally binding or just recommendatory.

2. The nature of the Copenhagen Accord

While having a legally binding international treaty does not mean per se that the environmental problem dealt therewith will definitely be solved, hard law does usually have at least two characteristics that enable countries to tackle efficiently an environmental problem. On the one hand, a legally binding instrument will have enforceable obligations that are binding upon State Parties and, on the other hand, it will have a compliance system that will establish a mechanism that will address situations of non-compliance. Does the Copenhagen Accord, despite its environmental pitfalls, have clear cut obligations and a strong compliance system?

Once again the answer is no. On the one hand, the system of pledges provided for in the Copenhagen Accord both for industrialized and emerging developing countries is, as we have seen, a bottom up approach where States are free to decide their level of ambition in relation to climate mitigation. Furthermore, and this is clear from the text of the pledges themselves, the nature of the obligation to which they are committing themselves is voluntary, not binding. In particular, developing countries, such as China, made it very clear that they do not consider themselves legally bound by their pledges17.

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On the other hand, the Copenhagen Accord does not mention the compliance system provided for in the Kyoto Protocol18, which has been hailed as one of the most advanced of any MEA.19The Enforcement Branch of the latter has the power to take measures against countries found in non compliance with their obligations under the Kyoto Protocol20. In the Copenhagen Accord "compliance" becomes "measurement, report and verification (MRV)", which seems to be structured in three different ways depending on whose mitigation action is considered. First, climate change mitigation action enshrined in pledges from Annex I countries will be "measured, reported and verified in accordance with existing and any further guidelines adopted by the Conference of the Parties"21. Second, mitigation action undertaken by developing countries will be subject to domestically established MRV. The Copenhagen Accord states as follows: "[M]itigation actions taken by Non-Annex I Parties will be subject to their domestic measurement, reporting and verification the result of which will be reported through their national communications every two years"22. Finally, non Annex I countries can also decide to adopt mitigation action, which will be supported by international assistance. In this third instance the Copenhagen Accord establishes that: "[T]hese supported nationally appropriate mitigation actions will be subject to international measurement, reporting and verification in accordance with guidelines adopted by the Conference of the Parties"23.

Two comments can be made on the MRV system provided for in the Copenhagen Accord. On the one hand, both for mitigation action taken by Annex I countries and for supported climate change mitigation action by Non Annex I countries the system requires further development through the COP. In other words, the system, as it currently stands, is not "operational immediately", despite what is stated in the preamble to the Copenhagen Accord... On the other hand, it is not clear what kind of consequences may arise if

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countries, in particular developing countries, do not comply with their pledges. Firstly, these are voluntary in nature...

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