Legal implications of Copenhagen Accord
THE Copenhagen Accord [the Accord], an unconventional upshot of Copenhagen Climate Deal, is whether a Political Declaration or an International Legal Instrument requires further legal analysis to judge. From the Climate Justice point of view, substantive contents and the procedural process of the Accord need to be assessed in line with due expectation of global community and UN Process. Nevertheless, this article would examine the legal implication of the Accord only from the procedural aspects of the 1992 UN Framework Conventional on Climate Change, rather than substantial contents.
Due expectation is that the developed countries, which attributed the cause, should take responsibility to react to consequences and to prevent further injury for climatic order, under the auspices of equity, justice and climate debt. There is enough space to put forward this legal claim in accordance with the treaties governing climate regime.
The international community has negotiated two major international treaties in less than a decade; the 1992 UN Framework Convention on Climate Changes [UNFCCC or the Convention] and the 1997 Kyoto Protocol [KP or the Protocol]. Both have been significantly elaborated through additional legal instruments and decision adopted by the Conference of the Parties [COPs] on the basis of developments in science and politics.
However, new-comers to the climate issue, and even those familiar with international climate regime, now find it difficult to follow the trial of documents and their significance for the interpretation and implementation of the two treaties negotiated to date. As such, a brief analysis of rules of procedure developed under the Convention would shed some light on understanding the arguments of legal appraisal of the Accord. Conference of the Parties [COP] is the highest authoritative governing body of the Convention.
Since 1995, a year after the Convention came into force Parties of the Convention are meeting annually to monitor its implementation and further advancement to combat climate change. The Parties of the Convention agreed at COP-1 held in Berlin, in March/April 1995, for legally binding commitments for industrialized countries since Convention's voluntary commitments would not lead to stabilization of the GHG emissions.
This decision is known as the 'Berlin Mandate', which initiated further negotiation for binding commitments of developed countries. As a result The Kyoto Protocol was adopted at COP 3 in Kyoto, Japan, on 11 December, 1997. The Kyoto Protocol, a legally binding instrument was adopted to supplement and strengthen the Convention by creating binding targets on GHG emissions for developed countries under a set time period of 2008-2012 known as first commitment period.
However, COP does not have the authority to form further new legal commitments since additional commitments would require a new legal intervention such as an amendment to the UNFCCC or a new protocol. Eventually, the Parties of the Convention adopted the Bali Action Plan, in 2007 to launch comprehensive process to enable the full, effective and sustained implementation of the Convention through long term cooperative action, now, up to and beyond 2012 in order to reach an agreement. An Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) was established under the Convention to work on the said plan and to adopt a decision in Copenhagen 2009.
Therefore, in accordance with the mandates of the negotiations expected outcomes of the Copenhagen deal were an amendment or amendments of the Convention and the Protocol or new Protocol leads to adopt new policy direction in the climate regime. Instead of any agreed outcomes from negotiations COP 15 mandates with unanimous decision to complete their work at the next COP 16, to be held in Mexico City in November 2010.
Previous COPs typically ended with a series of “decisions that are accepted by unanimous consensus of the delegates since majority vote does not apply to the climate convention." If any Party present formally objected to a decision, it could block its adoption, which set a high hurdle for what could be accomplished. However, the COP-15 ended on 19 December by taking note of' the 'Copenhagen Accord' [the Accord], which was supported by a large majority, but opposed by a small number. Hence this feature intervenes with the arguments from the aspects of international law making procedure.
The 'Copenhagen Accord' arising from an exclusive meeting of 26 political leaders was not adopted by the COP 15, but only 'taken note of '. The Danish Presidency of COP15 had put forward the text of the Copenhagen Accord on the board for adoption as a COP decision. However, many Parties that were not part of the group that negotiated the Copenhagen Accord objected with respect to both the procedural aspects and the substantive contents of the Accord. Hence the significance and the interpretation of “takes note of” are vital to understand the legal standing of the Accord.
The Decision 55/488 of UN General Assembly, adopted on 7 September 2001, restated “that the terms 'take note of' and 'notes' are neutral terms that constitute neither approval nor disapproval”. Since then this decision and interpretation have been accepted by the General Assembly on many occasions. Therefore, in accordance with the practice of the United Nations, the Accord is not an official outcome of COP15, rather an external document whose existence is only “noted” by the COP.
However, the Danish Prime Minister and the UN Secretary General initiated immediately a campaign to get Parties to associate themselves with the Accord. The 31 January, 2010 was the deadline to meet the requirement set forth in Appendix I and II of the Accord respectively for developed and developing countries. Then again, in late December 2009, the Danish Presidency circulated a note verbale to UN Member States' missions 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 Copenhagen Accord has been initiated by developed countries as a politically binding agreement among those countries that are part of it. Then it's their business to develop rules of procedure 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 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 Accord becomes an instrument that creates certain international law obligations for the countries that associate themselves with it.
The period for associating with the Copenhagen Accord is open-ended. This would imply that through this open-ended “association” process, the Danish Presidency and other developed countries that have invested in the Accord could seek to add more Parties to the Copenhagen Accord. They can thereby present it later on in the context of the negotiations for the outcome of COP16 as an official instrument that binds, at least at the political level, those countries that have so associated themselves with the Copenhagen Accord. They would then seek to promote it as the basis for the COP16 outcome.
Whether as a politically binding agreement or as an instrument to which if the Parties of UNFCCC declare unilaterally to be associated with, the Accord could well bring changes to climate regime.
The analysis provided above, on the legal implication of the Accord, leads to urge developing countries to consider the entire substantial contents prior to agree to associate with the Accord. Particularly the emission reduction figures submitted already or to be submitted by Annex I Parties to fill in Appendix I would justify the decision taken by the developing countries. About 56 countries had met the deadline of 31 January, 2010 officially written in Appendix I and II of the Accord, to meet the requirement set forth in the Accord. As such Bangladesh granted a “blank cheque” to the proponents of the Accord by accepting the document before some of its most important components is revealed.
Bangladesh is one of the champions to demonstrate due respect to the Accord. But this early acceptance also raises concern over the diplomatic policy of the State that put forward the question whether this acceptance reflects the voice of the most affected people of the country.
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