Author: Jacob Werksman

As the UNFCCC prepares for its next formal meeting, questions about the Copenhagen Accord’s status remain.

In the months following the Copenhagen climate conference, after COP-15 “took note” of the Copenhagen Accord, governments and commentators have been debating the legal status of this unique document. As was discussed in a previous posting, the Accord was agreed upon by a subset of the UNFCCC parties. The unusual circumstances left unclear which governments supported the Accord, which governments did not, whether some or all of its provisions could become “operational immediately” and which would require further actions by parties, and by the COP.

Shortly after COP-15, the UNFCCC Secretariat, with support from the UN Secretary General and the Danish COP Presidency, wrote to the UNFCCC parties and requested that they notify each other what targets for Annex I (developed) countries, and actions for non-Annex I (developing) countries they were willing to put forward in response to the Accord. (See notes from the Secretariat and party responses). The Secretariat’s letter also requested that parties indicate if they wished to “associate” with the Accord and have their country’s name listed in the final version of the Accord’s opening paragraph.

As the UNFCCC parties prepare for their next formal meeting, some questions related to the Accord’s status have been answered, but others remain open to interpretation:

How many countries have submitted targets and actions under the Accord? And how many have “associated” themselves with the Accord?

As of today, a total of 73 countries – 40 Annex I and 33 non-Annex I countries (including Kazakhstan) – have submitted targets or actions to the Secretariat. Of these, 64 have explicitly associated themselves with the Accord.

An additional 35 countries have explicitly associated themselves with the Accord but have not submitted targets or actions.

13 countries – including Brazil, Croatia, China, India, Namibia, and Palau – have expressed support for the Accord, without “associating” with it, as further discussed below.

4 countries, the Cook Islands, Kuwait, Nauru and Ecuador—an interesting mix of small island and oil experting countries—have submitted letters to the UNFCCC not associating with or supporting the Accord.

Weren’t a number of countries, including the BASIC countries (Brazil, South Africa, India and China), which were key to agreeing the Accord, reluctant to “associate” themselves with it?

The post-Copenhagen reluctance of a number of countries to associate with the Accord can be explained as an effort to ensure that the Accord did not take on a legal or procedural status beyond what was intended. Many countries – including those associating with the Accord – made clear in the notes submitted to the Secretariat that they were unhappy with the Accord’s content and the manner in which it was concluded. Many countries, including the BASIC countries, also wanted to make sure that the Accord wasn’t used to launch a process that might overtake or run in parallel to the UNFCCC process.

(Following what many saw as a dysfunctional COP, involving the unwieldy interests of more than 190 countries, a number of commentators were calling for “Accord countries” to push forward with implementation of the Accord and further negotiations in smaller settings which focus on major emitters of greenhouse gases, such as the G-20 and the Major Economies Forum.)

The BASIC countries met on January 24th, 2010, shortly after COP-15 and just prior to the Accord’s deadline for submissions. They acknowledged their central role in finalizing the Accord, and underscored their support for the document. According to the joint statement of the BASIC group, the countries “underlined the importance of the Accord as representing a high level political understanding among the participants on some of the contentious issues of the climate change negotiations.”

However, when they submitted their pledges of actions, none of these four countries explicitly associated themselves with the Accord. Instead, they referred to general provisions of the UNFCCC that encourage countries to report on national climate policies. Indeed, only South Africa chose to mention the Accord in its submission.

Since these original submissions were made, the UNFCCC Secretariat followed up with a note asking countries that had submitted targets or actions but were silent on the Accord, whether they intended to associate with the Accord. In response, South Africa has now explicitly associated itself with the Accord and each BASIC party has asked to have its country’s name listed in the Accord’s opening paragraph.

(While Brazil, China and India have each agreed to have its name listed, none has explicitly “associated” itself with the Accord. This is most sensibly read as a distinction without a difference. Once these countries’ names are listed in the Accord’s opening paragraph, they will appear before the phrase “Have agreed on this Copenhagen Accord.” This could be read as a stronger formulation than merely “associating” with the Accord.)

Does the fact that so many countries have associated with the Accord change the document’s legal character? Does it make it more binding on individual countries?

The UNFCCC Secretariat has clarified that, in its view “since the Conference of the Parties neither adopted nor endorsed the Accord, but merely took note of it, its provisions do not have any legal standing within the UNFCCC process even if some Parties decide to associate themselves with it… . the accord is a political agreement rather than a treaty instrument.”

However, the fact that so many countries have explicitly associated with the Accord (and at least as important, have submitted targets and actions) goes a long way to towards curing some of the procedural difficulties that surrounded the finalization of the Accord in Copenhagen. At the end of the Copenhagen negotiations, it was unclear which countries supported the Accord and which countries did not. The names of more than half the UNFCCC parties, representing the bulk of global emissions, will now appear in the Accord’s opening paragraph, and for most of them their targets and actions will be listed in the Appendices.

The Accord remains a “politically binding” instrument. For countries associating with the document, the Accord represents, as the BASIC countries themselves described it a “high level political understanding.” There are many aspects of the Accord that cannot be made operational without further action by the COP. Many of the parties that have associated with the Accord continue to express the view that the UNFCCC process must conclude with a new, legally binding instrument in order to respond effectively to the challenge of climate change.

What does this mean for the next stage in the negotiations? Will the Accord now become an official UNFCCC document?

As has been described, the Accord’s provisions “do not have any legal standing within the UNFCCC process.” The Accord does, however have a growing political importance, and recent submissions from Parties indicate that they expect the Accord to provide significant guidance in the next stage of negotiations. It can help to complete those parts of a “global deal” left unfinished in Copenhagen and, hopefully, lead to a COP decision on which all UNFCCC parties can agree under the Convention’s consensus decision-making rule.

The Accord and its appendices have already taken on an important functional role as well. The Secretariat is listing the letters of association and the Appendices on the UNFCCC official website, and it appears to have a mandate to prepare and publish a more final version of the Accord that will include parties’ names. A kind of “proto-registry” of targets and actions of the kind contemplated by the Accord and by the broader negotiations has, de facto, been created, allowing the international community to begin to assess and compare what each Accord participant is prepared to do, and the conditions under which it is prepared to follow through on these pledges.

Does this mean the battle over the Accord’s status is over?

No. It must be recalled that a number of UNFCCC parties continue to object to both the Accord’s content and the process by which it was agreed. At least one party, Cuba, has formally objected, in writing to the UNFCCC Secretariat’s handling of the Accord, describing the document as “frappe de nullite” or “null and void.” Under the UNFCCC’s consensus decision-making rules one can reasonably expect that this and some of the other 90 parties to the UNFCCC that have either remained silent or have rejected the Accord as illegitimate will continue to raise procedural objections to its use in the ongoing negotiations.

Here is a Q&A on some of the most important legal questions surrounding the Copenhagen Accord.

As the dust settles after a decidedly unconventional climate convention, delegates and experts are turning their attention to the outcome, and what it means for the future of international climate change efforts. Previous COPs typically end with a series of “decisions” that are accepted by unanimous consensus of the delegates (majority vote does not apply to the climate convention), which sets a high hurdle for what can be accomplished.

But this time, history didn’t play out in exactly the same way. Here are some early thoughts on what actually happened at COP-15 in Copenhagen, and what it means from a legal perspective:

Is the Copenhagen Accord a binding document?

Not in a legal sense. In fact, the words “legally binding” were conspicuously removed from earlier drafts of the Accord by delegations that aren’t yet ready to enter into a legally binding instrument. But the Accord is “politically binding” on those countries that choose to sign up to it. A number of delegations publically expressed their approval of it during the final Conference of Parties (COP) plenary session. And the Convention Secretariat is setting up a process for governments to associate themselves with the Accord, and the names of their countries will be formally listed alongside the text.

But “politically binding” is not the same as “legally binding.” Politically binding—if anything—means that political consequences will flow from its breach—diplomatic responses, efforts at public shaming, withholding of discretionary funding, etc. In this sense, the Accord can be considered a strong, high level commitment by the countries that have adhered to it, and many groups are choosing to interpret it in this sense.

But didn’t the COP “adopt” the Copenhagen Accord at COP-15?

No. The COP “took note” of the Copenhagen Accord. Decisions by the COP require a consensus (if any Party present formally objects to a decision, it can block its adoption). That level of consensus was not possible in this case, and the COP rules don’t enable voting. While the 25 or so countries that were asked by the COP President to participate in a high level meeting of the “friends of the President” eventually accepted the Accord, at least four Parties spoke out against it (Tuvalu, Sudan, Bolivia, and Venezuela). In any event, COP decisions—even those agreed to by all parties—cannot by themselves legally bind Parties.

What does it mean for the UNFCCC to “take note” of the Copenhagen Accord?

“Taking note” of the Accord is a way for UNFCCC parties to formally acknowledge its existence. To quote UNFCCC Executive Secretary Yvo de Boer, it “is a way of recognizing that something is there, but not going so far as to associate yourself with it.”

However, the decision to “take note” of the Copenhagen Accord does not change the nature of the Agreement; it does not, for example, give it the significance of a COP decision. However, it may give it greater significance than documents that parties submit during COP proceedings, such as those categorized as “miscellaneous” or “informational” (MISC or INF) documents.

During the Plenary, a number of governments in support of the Accord called upon the COP, under Art 7.2(c) of the Convention to:

Facilitate, at the request of two or more Parties, the coordination of measures adopted by them to address climate change and its effects, taking into account the differing circumstances, responsibilities and capabilities of the Parties and their respective commitments under the Convention.

This should give the COP a mandate to follow up on the implementation of the Accord.

I thought I heard officials say the Copenhagen Accord be made “immediately operational.” How is that possible?

The Accord describes itself as “immediately operational.” Participating countries can, however, only immediately operationalize those parts of the Accord that do not require a COP decision.

For example, the Accord provides that governments will submit more specific country-level commitments and actions in the Appendix 1 and Appendix 2 sections of the Accord. Appendix 1 is intended for “economy-wide emissions targets” for 2020 for Annex-I countries; Appendix 2 for “mitigation actions” by non-Annex I countries. These commitments, which must be submitted by January 31st, 2010, will constitute more specific and significant commitments on the part of the submitting countries. These commitments can become operational immediately.

However, the Accord also “decides” to establish a new “Copenhagen Green Climate Fund” to manage the billions of dollars pledged in Copenhagen. It provides that the Fund will be part of the Convention’s Financial Mechanism. This isn’t possible without a COP decision. Unless the all Parties can agree, at the next COP or later, money raised under the Accord will have to be managed outside the Convention.

A plausible argument could be made that since the Accord was adopted as a package, even those aspects of the Accord that would otherwise be immediately operational (such as the 31 Jan 10 deadline) won’t take effect until the other aspects, such as the establishment of the fund, also take effect.